1726538 (Refugee) - [2021] AATA 1032

1726538 (Refugee) [2021] AATA 1032 (18 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1726538
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Louise Nicholls
DATE:18 March 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 March 2021 at 3:25pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – Federal Circuit Court remittal – political opinion – previous application on refugee criteria refused – current application on complementary protection criteria refused and refusal affirmed – remitted on grounds of procedural fairness – party membership and activity – generalised conflicts with members of rival party – land dispute with neighbour who was member of rival party – arrest and mistreatment – charged and convicted in absentia – intimidation of family and attack on home – party activity in Australia but no membership – credibility – vague, implausible and inconsistent evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 48A, 65, 417, 438, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth), s 19A
CASES
AMA15 v MIBD [2015] FCA 1424
Minister for Immigration and Border Protection v Singh [2016] FCAFC
MZXRE v MIAC (2009) 176 FCR 552
SZEPZ v MIMA (2006) 159 FCR 291
SZGIZ v MIAC (2013) 212 FCR 235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant claims to be a citizen of Bangladesh and is [Age 1] years of age. He arrived in Australia travelling as a merchant seaman and he abandoned ship in Australia [in] January 2008. At the time he abandoned ship he held a temporary [visa]. The applicant previously applied for protection; however, his first application was refused.
On 20 May 2014 the applicant made a further application for a protection visa.
The applicant attended an interview with an officer of the Department of Immigration and Border Protection on 7 October 2014 in relation to his current application.
On 14 October 2014 the delegate of the Minister for Immigration and Border Protection refused to grant a protection visa under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that the applicant met the requirements for that visa. The applicant sought review of the delegate’s decision.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Procedural history
The applicant sought review of the delegate’s decision by the Refugee Review Tribunal on 17 November 2014.
The applicant appeared before the Administrative Appeals Tribunal,[1] differently constituted (Tribunal 1), on 15 June 2016 to give evidence and present arguments. The Tribunal has obtained a transcript of that hearing.
[1] On 1 July 2015 the Refugee Review…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1726538 (Refugee)

Details

AGLC: 1726538 (Refugee) [2021] AATA 1032
Case: [2021] AATA 1032
Decision Date: 18 March 2021

CaseChat Overview and Summary

The Federal Circuit Court considered an appeal by an applicant concerning the refusal of his application for a protection visa. The applicant, who is from Bangladesh, had previously had a protection visa application refused, and subsequent appeals were unsuccessful. His current application was based on complementary protection criteria, which was also refused by the Tribunal. The matter was remitted to the Tribunal by the Federal Circuit Court on grounds of procedural fairness.

The core legal issues before the Tribunal were whether the applicant met the criteria for complementary protection, and the weight to be given to his claims of persecution due to his alleged political affiliation with the Bangladesh Nationalist Party (BNP). This involved assessing the credibility of his evidence regarding past arrests, mistreatment, charges and convictions in absentia, and threats to his family, as well as his alleged involvement in political activities both in Bangladesh and Australia. The Tribunal also had to consider the country information pertaining to Bangladesh and the potential for harm from members of the rival Awami League and Bangladeshi authorities.

The Tribunal found the applicant's evidence to be vague, implausible, and inconsistent, particularly concerning his family composition and the extent of his financial support while in Australia. While acknowledging his age and place of birth, and accepting that he had worked as a seaman and had a family, the Tribunal did not accept the applicant's claims of significant political involvement in Bangladesh or that he would face harm upon return. The Tribunal noted that his claims of membership in the BNP in Australia were not substantiated by credible evidence, and that the documentary evidence provided, including letters from the BNP and court documents from Bangladesh, was insufficient to establish a well-founded fear of persecution. The Tribunal ultimately affirmed the decision under review, finding that the applicant had not established that he met the criteria for complementary protection.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal notes that the material previously covered by the certificate was a submission made to the Minister regarding the applicant’s request for Ministerial intervention under s.417 of the Act. Background The applicant is [Age 1] years of age. He was born and lived in Noakali which is in the Chittagong area of Bangladesh. He attended school in his village and finished at the intermediate level. His father and uncles were farmers and grew [crops]. After the applicant finished school he helped on the farm for a few years and then became a seaman where he received training from the shipping company as a [job task]. He claimed he was quite well paid as a seaman. Generally, he would spend periods of time onboard and then return home where he helped with the farm for periods of time. He stated that his father has passed away and his mother is alive and living in his home village in Bangladesh. His brother was previously living and working in [Country 1] but has now returned to live in Bangladesh. The applicant’s brother is married and operates a small [business] as well as being involved in farming. The applicant married in [Year 1] and has one son ([Age 2] years) and two daughters ([Age 3] years and [Age 4] years). His wife and two of his children live in Dhaka in the home of his wife’s sister. His eldest daughter has completed her college studies and is married and living in [Country 2]. He stated he speaks to his family two to four times each day. He stated that the family are supported by his wife’s sister who has moved to [Country 3] and sends money for their support. At Tribunal 1’s hearing the applicant stated that he had one brother and four sisters and his father was deceased. Tribunal 1 pointed out that in his original protection visa application he listed one brother and two sisters. The applicant stated that the agent had misstated his family composition. Tribunal 1 pointed out that in his most recent application he also stated he only had two sisters. The applicant reiterated he had four sisters. He stated that all of his sisters are married and living with their husband’s families in the Noakhali District. The applicant stated that he lived in his home village until the age of [Age 5] and after that he obtained his shipping job and went backwards and forwards between the village and his shipping job after that. He stated he started working in a shipping company from 1984 and then started working for his most recent former employer in 1992. The applicant confirmed that when he was home from the ships, he lived in the family home in Noakhali. He stated he worked for about 13 months on the ship and then would return to the village for around a year sometimes up to 20 months. He last arrived in Australia [in] January 2008. He and has lived in Sydney for the past 13 years. He claimed that apart from a few casual jobs from time to time he has not worked at all. However, he has had Centrelink benefits for some periods. The people he lived with were from Bangladesh and they supported him for reasons of community sentiment. They looked after him for nine to ten years and they paid for all his expenses. He stated there are four to five persons and they all lived together in a share house. The Tribunal put it to him that it was difficult to accept that his housemates paid for his accommodation, food, mobile telephone, public transport and clothes for nine to ten years. He stated he worked occasionally and gave them some money.

Evidence

Evidence Before The Court

Essentially the applicant claims if he returns to Bangladesh, he faces significant harm from Awami League members and Bangladeshi authorities because of his involvement in the BNP. He claims that due to his political involvement with the BNP in Bangladesh he had been arrested and mistreated on several occasions. He claims that while absent from Bangladesh he has been charged and convicted of criminal offences. He claimed Awami League activists attacked his home. He claims that if he returns to Bangladesh, he fears the Awami League will accuse him of having an affiliation with Jamaat-e-Islami and would like to convict him as a war criminal. He claims he has joined the BNP in Australia and would face harm due to his affiliation with that group. He claims his life will be in danger if he returns to Bangladesh.Assessment of claims and evidence The Tribunal accepts that the applicant is [Age 1] years of age and was born and lived in Noakhali in the Chittagong District of Bangladesh, except for lengthy periods of time he was working as a seaman on a number of ships. It accepts his pattern of work involved working as a seaman for 12 to 14 months and then returning to his home village for periods of time where he helped on the family farm. The Tribunal accepts that the applicant is married with three children. His wife and two children live in Bangladesh and his eldest child is married and living in [Country 2]. The applicant claimed in his initial statement that he joined the BNP in 1982. The applicant stated that when the BNP was in government between 2001 and 2006 he was involved in political movements and was opposed to the Awami League. He claimed that the Awami League caused trouble for him by asking for ransom payments or threatening him. He claimed he actively participated in BNP politics including attending processions and meetings and was involved in BNP charitable works and recruiting new members. He claimed he was arrested on several occasions but released without charge. He was also charged when he was absent from Bangladesh and was recently sentenced. He referred to a District Court decision, details of which were provided to the Department. He claimed Awami League activists attacked his home and threatened his family. He heard that two fellow BNP members went missing and the police reported they had been abducted. He suggested the Awami League was responsible. His family had moved from Noakhali to Dhaka to hide and they telephoned him and told him his life was in danger. He has heard senior leaders of the BNP have had to go underground. He has heard that the Awami League is trying to convict the applicant as a war criminal. He also believes that he has been charged with a further case. A warrant has been issued by Bangladeshi Police for vandalism. He claimed if he returns to Bangladesh his life will be in danger. Attached to submissions made on 25 February 2015 were several documents provided to support the applicant’s claims of BNP involvement. One letter stated that he was a supporter of the BNP in Bangladesh, another letter stated he had been a member of the central committee of the BNP from 2002 and another stated he was a dedicated BNP activist. Another letter from the BNP Australia noted that the author had known the applicant for four years as a member of the BNP and another stated the applicant was a member of the BNP in Bangladesh and Australia.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant provided a number of documents to support his application, including:Department File [Number]·Copy of biodata page and pages of the applicant’s Bangladeshi passport issued by the Bangladesh High Commission in Canberra [in] 2011.·Undated statement made by applicant.·Undated letter to Senator Chris Evans, Minister for Immigration (as he was), from [Mr A] [Official 1] Bangladesh Nationalist Party (BNP) Australia. ·Representative’s submissions dated 20 May 2014.Tribunal file no. 1418735·Representative’s submissions dated 8 June 2016.·Applicant’s statement dated 30 June 2016.·Applicant’s Statutory Declarations made on 9 June 2016 and 5 July 2016. ·Undated letter from Letter [Mr B], [Official], BNP [Upazila], Noakhali.·Copy of letter from MP to [Mr C], Bangladesh National Assembly dated 26 December 2013.·Copy of letter from [Mr D], BNP.·Copy of letters from the applicant’s wife, [Ms E] dated 01/01/2015 and 18/12/2014.·Copy of letter from Bangladesh Jatiotabadi Dal.·Copy of letter from [Mr F], BNP dated 27/03/2016.·Copy of letter to Senator Hon. Chris Evans from [Mr A], BNP - Australia, signed [in] June 2015.·Medical Certificate [Medical centre 1], signed by [Dr G], dated 5 May 2016.·Health Care summary sheet, [Medical centre 2] – signed by [Dr H], dated 9 June 2016.·Various photographs (and copies) of the applicant participating in BNP Australia functions.·Various Court documents from Bangladesh relating to criminal charges against the applicant, including warrants for arrest.Tribunal File no. 1726538·Statement by [Mr F], [Official 1], BNP Australia, dated 2 January 2020.·Photographs of the applicant participating in BNP activities.CONSIDERATION The issue in this case is whether the applicant is entitled to complementary protection. The relevant law is set out in Attachment A.How does the Tribunal deal with a further protection visa application made before 28 May 2014? The applicant initially applied for a protection visa on 18 January 2008. His application was refused and his subsequent applications for merits and judicial review were unsuccessful. On 21 May 2014 he applied for a protection visa on the basis that his previous application had only been assessed against the refugee criterion. In the Form B of his application for protection, the applicant advised he had previously applied for a protection visa on 18 January 2008. The applicant’s representative made submissions to the Department on 20 May 2014 in which he acknowledged a prior application for a protection visa which was assessed against the refugee criterion only. The Tribunal finds that the applicant made a protection visa application in January 2008 and his first application was refused. He made a further application for a protection visa on 17 November 2014 and that application is the subject of this review. Where a further application for a protection visa was made before 28 May 2014, s.48A applies as it was before amendment by the Migration Amendment Act 2014. Before this amendment, s.48A(2) provided that an ‘application for a protection visa’ included ‘an application for a visa, a criterion of which is mentioned in s.36(2)(a), (aa), (b) or (c)’, which respectively relate to being either a person in respect of whom Australia has protection obligations under the Refugees Convention, a person in respect of whom Australia has protection obligations under the ‘complementary protection’ criterion, or a member of the same family unit of either such person.