1826370 (Refugee) - [2019] AATA 6837

1826370 (Refugee) [2019] AATA 6837 (31 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1826370
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Anne Grant
DATE:31 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 31 October 2019 at 1:54pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – Federal Circuit Court remittal – political opinion – Bangladesh Nationalist Party – particular social group –– returned asylum seeker – victim of assault – false murder charges – fears harm by Awami League members – politically motivated violence – family targeted – relocation in home country not feasible – persecution relates to all area of Bangladesh – decision under review remitted
PRACTICE AND PROCEDURE – Ashmore Reef – excised offshore place – arrival in the migration zone – decision under review initially deemed fast track reviewable – reviewed by Immigration Assessment Authority – status as unauthorised maritime arrival invalidated by Full Federal Court decision on separate case – preliminary consideration of jurisdiction – valid application for a Safe Haven Enterprise Visa – right to seek further review by Tribunal

LEGISLATION
Judiciary Act 1903 (Cth), s 39B
Migration Act 1958 (Cth), ss 5, 36, 46A, 65, 66, 411, 412, 473CA, 499
Migration Regulations 1994 (Cth), Schedule 1, cl 1404, Schedule 2

CASES
Jayasinghe v MIEA (1997) 76 FCR 301
SZASP v MIAC [2007] FCA 771
DBA16 v MIBP and IAA [2017] FCA 1580
DBA16 v MIBP and IAA [2017] FCCA 320
DBA16 v Minister for Home Affairs [2018] FCA 1539
DBA16 v Minister for Home Affairs and Anor [2018] FCCA 2761
DBB16 v Minister for immigration and Border Protection [2018] FCAFC 178
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 by a delegate of the Minister for Immigration and Border Protection on 20 July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Bangladesh, applied for a Class XE Safe Haven Enterprise (subclass 790) visa (SHEV) on 20 April 2016. The applicant has never held a Subclass 449 (Temporary Safe Haven visa). Required for the grant of a SHEV is that the applicant satisfies the criterion mentioned in paragraph 36(2)(a) or (aa) of the Act. Those paragraphs set out the criteria for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations.
The departmental file indicates that the applicant entered Australian waters within the territory of Ashmore and Cartier Islands (Ashmore Reef) aboard a boat codenamed [specified] and was brought to Darwin on or…

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.

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Details

Case: [2019] AATA 6837
Decision Date: 31 October 2019

CaseChat Overview and Summary

The applicant, a citizen of Bangladesh, sought protection in Australia, claiming a well-founded fear of persecution due to his political opinion and membership in the Bangladesh Nationalist Party (BNP). He alleged that members of the Awami League (AL) had targeted him and his family with violence and false criminal charges, making return to Bangladesh unsafe. The matter came before the Tribunal for merits review of the original decision to refuse his Safe Haven Enterprise Visa.

The central legal issues before the Tribunal were whether the applicant was a refugee within the meaning of the Migration Act 1958, specifically whether he held a well-founded fear of persecution for reasons of political opinion or membership of a particular social group, and whether effective protection was available to him in Bangladesh. A preliminary jurisdictional issue arose due to the applicant's arrival at an excised offshore place, which was later deemed invalid, impacting his status as an unauthorised maritime arrival and the validity of previous decisions.

The Tribunal considered the applicant's detailed account of politically motivated violence and threats from AL members, including damage to his cousin's shop, a physical assault, and false murder charges. It noted that the applicant's claims were supported by a police clearance confirming his innocence and subsequent threats against his family if he returned. The Tribunal applied the principles outlined in sections 5J and 36(2)(a) of the Migration Act, assessing whether the fear of persecution was well-founded and if it related to all areas of Bangladesh. It also considered section 36(2B), which addresses the availability of protection within the receiving country, finding that the applicant's fear of persecution by the AL, who allegedly held significant influence over local authorities, meant that effective protection was not available.

The Tribunal was satisfied that Australia had protection obligations towards the applicant under section 36(2)(a) of the Migration Act. Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criteria for a protection visa under section 36(2)(a).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.Claims and evidence The applicant’s written claims lodged with his application for a SHEV in April 2016 (approximately three years after he arrived in Australia) were that (in summary):·The applicant is a citizen of Bangladesh and does not have a right to citizenship or to reside in any other country. He is Bengali and a Sunni Muslim.·His father ‘abandoned’ the family when he took a second wife and the applicant was a young child. His older brother supported them as a farmer, working his own small plot of land and that of others. The plot was given by the applicant’s father to his brother when he left – they farmed [a range of produce] depending on the season. The applicant left school before completing [a certain year] to help his brother.·In about 2009, he began working for his cousin [Mr A] in his [shop]. He worked there until he left Bangladesh, though he also continued to help his brother and work on other farms occasionally if he had time.·Bangladesh National Party (BNP) meetings used to be held at his cousin’s shop. [Mr A] was [Official 1] of the [Village 1] BNP student’s wing in the greater [named location]. He was well connected to senior BNP officials as they often used to sit outside the shop and talk politics and organise meetings. About six months before he left the country, [Mr A] selected the applicant as [Official 2]. ·Once he was [Official 2], the applicant became more active. He recruited more people. He would advise people that if they joined, the BNP would have more influence in the local area. This would include better development, more roads and bridges. He also used to say that the more people that belonged to the BNP, the more likely they would be protected.·There were more Awami League (AL) supporters than BNP. AL members used to go to people’s shops and try to get money from them illegally. They told them about ‘events coming up’ and demanded money from them as support. They would threaten that if you didn’t pay the money, they would make it impossible for you to run your business. This had happened to his cousin before he became [Official 1] of the [Village 1] BNP student wing. He was well known and popular. This strengthened his role in the community and his relationships with other senior leaders helped protect him and his business.·One day in November 2012, about five or six local AL members came to the shop and said if he did not leave the BNP and join them he would be in trouble. He said no, and ignored them and continued his party activities, organising meetings and continuing to try to recruit new members.·A few days later, there was a big BNP meeting to support the leader of the [named] District. There were processions and many people showed their support. When local AL members saw how many people attended, they became angrier. Many were there because the applicant had organised them to be there. ·The following night, some AL members came to the shop when he was working there. He saw them coming. There were at least ten of them and they carried [makeshift weapons]. He ran through the back door and left. He knew two of them as AL supporters. He didn’t know the others but they were like a gang of people.·They [caused a lot of damage to the shop]. His cousin went to the police but it was never resolved. As they were from the AL, they were never held accountable.·A couple of nights later, he visited relatives in a neighbouring village. The following morning as he was coming back on his bike, five people stopped him and beat him up. He knew two of them from his village and that they were AL people. They kicked and punched him. One of them tried to hit [him] with a machete. He [has] a scar as a result. ·A few days later, there was a death in a fight over land on the other side of the village. He was informed that AL people had put his name forward as the person who had seriously injured the person, even though he had been working at the shop at the time. Then a local AL leader said if he joined the AL all the charges would be dropped. ·Two days later, he was at home when he heard that the police were asking about him and trying to find out where he lived. He decided immediately to go to his [sibling’s] house in [Location 1], because if they arrested him, it would be a long time before he would be able to prove his innocence. This house was around five kilometres away. ·He believed that the AL had all the power and he didn’t have the money to find a lawyer to represent him. He believed he would be locked up without any evidence or charges being laid, for at least six months. He was also scared if the police caught him they would beat him up and torture him and try to get a false confession out of him. While he was at his [sibling’s], four or five AL members went to his home looking for him. His brother knew these people. They verbally threatened the applicant’s brother to tell him where the applicant was. ·They came a second time and told his brother that when they found him, they would kill him. They kicked and broke the doors and windows. The applicant stayed inside at his [sibling’s] house in [Location 1]. His brother contacted him there and told him about the threats and that the AL supporters were looking for him. He told him to go to Dhaka and leave the country as soon as possible. ·The applicant went to Dhaka and tried to find the passport office. Just before he reached the office, someone approached him and said if he wanted to leave quickly, the man could help organise this by boat if the applicant paid them money. The applicant agreed because he was afraid that he would be found and killed while he waited for his passport. His brother leased some land and borrowed money, and the applicant left from [named location] by boat to [Country 1]. From there he was taken to [Country 2]. From [Country 2] he was taken by boat which was intercepted by the Australian navy and he was taken to Darwin around 14 April 2013. ·The applicant attached a police report stating the charges falsely laid against him, which he said the police brought to his home a few days after he fled. About ten months after he came to Australia, the police found the actual perpetrators and ‘a court found he was innocent.’ His family sent him an original copy of the police clearance while he was in detention in [Australia]. ·He had been told that the reason for him being detained was because of the police case against him and because DIBP wanted to conduct clearance checks. They must have known his documents were genuine to have continued to detain the applicant.·Despite the charges being dropped, this has not solved his problems. He did not flee the country because of the charges. He has always feared the AL supporters. Once they found out he had been cleared of the crime they threatened his family that if he ever came back they would find and kill him.·He does not think that the authorities of Bangladesh can or will protect him. The AL supporters operate at village level and the police are unable to protect him from them. The Bangladesh authorities are AL leaders. All the forces, the police and the army are headed by AL people. ·The AL have power and influence all over Bangladesh. If he moves to another area, perhaps the local people wouldn’t be interested in him but if the AL supporters find out he is back, using their networks they can easily find him. They may not kill him themselves but will hire mastaans to do their work.

Decision

Reasons for decision

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.Anne GrantMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

The applicant’s situation, based on his having arrived in Darwin after being disembarked on or near Ashmore Reef, was analogous to and therefore affected by the decision in DBB16. This has been confirmed by the Department who formally re-notified the applicant on 10 April 2019 of the decision to refuse his visa on 20 July 2016 and informed him of his right to seek further review of the decision at the Tribunal. He lodged a second application to review the decision made by the delegate on 20 July 2016 at the Tribunal on 24 April 2019.Preliminary consideration of Jurisdiction The applicant does not hold a federal court declaration that he is not a UMA, because of Judge Kirtin’s judgment not to extend the time within which he could seek a review, as confirmed by Justice Wheelahan. Nonetheless, the IAA decision and the related Federal Circuit Court of Australia and Federal Court of Australia judgments (as referred to above) were legally based on the applicant having arrived in Australia at an excised offshore place (Ashmore Reef) and therefore being a UMA. The consequence of the Full Federal Court decision in DBB16 is that Ashmore Reef is no longer an excised offshore place. The applicant in this instance therefore first arrived in Australia at Darwin. Darwin is in the migration zone and is not an excised offshore place. The Full Federal Court decision of DBB16 is binding on this Tribunal and I conclude that the applicant was not a fast track applicant and so was never properly notified of the decision to refuse his application for a SHEV and his review rights until 10 April 2019. I consider that the judgements in DBA16 v MIBP and IAA [2017] FCCA 320 and DBA16 v MIBP and IAA [2017] FCA 1580 were reviewing the IAA decision in this applicant’s case. That decision has now become a nullity. In this review, I am not reviewing the IAA decision, but, subject to my being satisfied of my jurisdiction, conducting merits review of the original decision to refuse the applicant’s application for a Safe Haven Enterprise (XE) Visa. The applicant has lodged two separate applications for review with the Tribunal. The first was on 10 September 2018,(number 1826370) subsequent to the Full Court’s declaration of 6 August 2018 that the proclamation of Ashmore Reef as an excised offshore place was invalid and prior to him being notified on 10 April 2019 by the Department of his right to seek review at this Tribunal after the reassessment of his case in light of the Court’s decision in DBB16. The re-notification of the Department’s decision did not create the applicant’s right to seek review of the original decision, it merely triggered the provisions of s.412 which stipulate that a request for review must be lodged ‘within 28 days’ of the applicant being notified of the decision. The application for review of the delegate’s decision of 20 July 2016 must be based on the provisions of s.411 of the Act – namely it must be a Part 7- reviewable decision. In that context, and in light of the history of this case, I have considered whether the applicant’s application for a SHEV was valid and gave rise to review by the Tribunal, given the change in his ‘status’ from being a UMA to not being a UMA as a consequence of the DBB16 decision. UMA’s can only apply for a SHEV if the statutory bar to their doing so is lifted. In this case, the applicant’s application was deemed valid at the time it was lodged due to the fact that the minister had lifted the bar in s.46A of the Act in 6 November 2015 and invited the applicant to apply for a safe haven enterprise visa or a temporary safe haven visa. Based on the precedent in DBB16, the applicant was not an unauthorised maritime arrival, and therefore the validity of his original visa application must be considered using other legislative provisions.