1826651 (Refugee) - [2023] AATA 3384

1826651 (Refugee) [2023] AATA 3384 (18 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Michael McCrudden
CASE NUMBER:  1826651
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Catherine Carney-Orsborn
DATE:18 July 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 18 July 2023 at 10:31am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – Federal Court remittal – materials that can be considered on remittal – imputed political opinion – involvement with the Bangladeshi Nationalist Party (BNP) – attack from Awami League (AL) supporters – land dispute with uncle – false charges filed against brother – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2
CASES
SZEPZ v MIMA (2006) 159 FCR 291
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 (the Department) to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Bangladesh, applied for the visa on 1 July 2013. The delegate refused to grant the visa on 12 September 2014 on the basis that the applicant is not a person in respect of whom Australia owes protection obligations.
On 3 October 2014, the applicant applied to the Tribunal for a review of the refusal decision. A previous Tribunal held a hearing on 4 January 2016. On 22 March 2016, the previous Tribunal affirmed the refusal decision in Tribunal case 1416499.
On 11 April 2016, the applicant commenced judicial review proceedings against the Tribunal’s decision before the Federal Circuit Court of Australia in [case number]. [In] February 2017, the application for judicial review was dismissed.
On 15 March 2017, the applicant commenced proceeding against the Federal Circuit Court’s decision before the Federal Court of Australia in [case number]. On 17 August 2018, the Federal Court of Australia remitted the matter to the Tribunal for determination according to law. The Court found that the previous Tribunal fell into jurisdictional error in ignoring corroborative evidence by not engaging with it, the evidence being a purported video clip that the applicant tendered towards the end of the First Tribunal’s hearing. The Federal Court of Australia found that therefore, the First Tribunal did not fulfill its review function according to law.
The matter is now before the present Tribunal pursuant to that order of the Court.
What information can be considered on remittal?
Where a direction is given to reconstitute the Tribunal, the AAT Act requires the reconstituted Tribunal to continue…

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 1826651 (Refugee)

Details

AGLC: 1826651 (Refugee) [2023] AATA 3384
Case: [2023] AATA 3384
Decision Date: 18 July 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by an individual from Bangladesh. The applicant claimed to fear harm from supporters of the Awami League (AL) due to his involvement with the Bangladeshi Nationalist Party (BNP), and also from his uncle due to a land dispute. The case came before the Tribunal following a remittal from the Federal Court.

The primary legal issue before the Tribunal was whether the applicant was a person in respect of whom Australia owed protection obligations. This required the Tribunal to assess the credibility of the applicant's claims and determine if there was a real risk of significant harm, considering the provisions of section 36(2B) of the Act, which outlines circumstances where a real risk of harm may not be found, such as the availability of internal relocation, state protection, or if the risk is faced by the general population. The Tribunal was also mandated to consider relevant guidelines and country information.

The Tribunal affirmed the decision, concluding that Australia did not owe protection obligations to the applicant. In reaching this conclusion, the Tribunal considered a comprehensive range of documents, including departmental files, previous tribunal decisions, court judgments, and country information. While acknowledging the applicant's claims of political involvement with the BNP and subsequent attacks by AL supporters, as well as a land dispute, the Tribunal ultimately found that the applicant had not established a real risk of significant harm. The Tribunal's reasoning, though not detailed in the provided text, led to the affirmation of the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

The present Tribunal file contains acknowledgement of Court remittal to the applicant and various request for Medicare letters from the applicant.Applicant’s background The following was provided by the applicant in the application form for a Protection visa with the Department. The applicant is from the Chittagong province. He is a fluent reader, speaker and writer of the Bengali language. He identifies as Muslim. His parents and siblings reside in Bangladesh. He attended primary and secondary school. He declared that he resided in [Country 1], [Country 2] and [Country 3] as an asylum seeker before coming to Australia. He first arrived in Australia as an unauthorised maritime entrant [in] March 2013. He declared he was unemployed at the time of application. He declared that his employer in Bangladesh was the Bangladeshi Nationalist Party (‘BNP’) where he was involved in sports and politics as a [Occupation 1] from 2004 to 2012.Applicant’s claims The applicant claimed to the Department that he feared returning to Bangladesh because he may be seriously harmed by the Awami League (‘AL’) because of his political activities with the BNP. And, that he may be face risk or harm from his uncle because of a land dispute. The applicant claimed in a statutory declaration to the Department dated 13 June 2013 that he was a [sports] player during his school years. His family were BNP supporters and that he was a BNP supporter because the BNP supported a terrorist-free country and sought to build a self-reliant country with focus on employment. The applicant claimed that he worked as a [Occupation 1] for the local BNP student branch organising sports games in local tournaments. That he attended BNP meetings and demonstrations. That the meetings focused on harnessing votes and to discuss the party role and projects. In late 2011, the applicant was harassed by AL members. He claimed they had sticks and abused him verbally. The applicant claimed he was able to run away from them. On 15 January 2012, the applicant was beaten by about 10 to 12 AL supporters. The applicant claimed that this took place near a playground in [Upazila 1] and that it was in the evening. The applicant claimed that he could not see his attackers, but he believed they were AL members because they abused him verbally and warned him to stop being involved in the BNP activities. The applicant claimed he was beaten with hockey sticks and long knives until unconscious. The applicant was taken to hospital where he recovered from cuts and injuries to his head, chest, legs and fingers. The applicant stated that he had a long scar on his chest from the attack. He was discharged [in] February 2012. He claimed he provided the Department with copy of the hospital report. The applicant stated that after the attack he was hiding at his sister’s home, which is located a couple of hours away from his family home where he used to reside. The applicant claimed that AL supporters attended his family home during his absence searching for him and saying that they would kill the applicant.

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.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant is a person in respect of whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the matter should be affirmed. The Tribunal has before it the Department files and the previous and present Tribunal files. The Department file contains copy of a letter from a Bangladeshi school headmaster dated 16 April 2013, copy of an undated handwritten doctor’s letter, copy of an English translation of a list of Bangladeshi Nationalist Student Party dated 20 October 2004, copy of the applicant’s Bangladeshi birth certificate, applicant’s legal representative written submissions from 2014, copy of an Irregular Maritime Arrival Entry Interview record dated 10 April 2013, application forms for a Protection visa dated 13 June 2013, applicant’s statement of claims dated 13 June 2013, applicant’s consent forms to seek personal information and to share and release information, copy of grant of Bridging visa to the applicant, copy of the Protection visa interview in CD form, and a copy of the delegate’s record. The previous Tribunal file contains copy of the application form for review of refusal of Protection visa, copy of the delegate’s decision record, copy of NSW photo ID card for the applicant, copy of online article on Bangladeshi political elections dated 7 July 2013, copy of the National Election Result 2008 page for [District 1] dated 27 January 2011, copy of Tribunal’s decision to release information to the applicant in full dated 21 November 2017, copy of Federal Circuit Court judgment dated ]in] February 2017, copy of Federal Court of Australia orders and judgment dated [in] August 2018, and a copy of filing of proceedings at the Federal Circuit Court of Australia dated 7 April 2016. The present Tribunal file contains acknowledgement of Court remittal to the applicant and various request for Medicare letters from the applicant.Applicant’s background The following was provided by the applicant in the application form for a Protection visa with the Department. The applicant is from the Chittagong province. He is a fluent reader, speaker and writer of the Bengali language. He identifies as Muslim. His parents and siblings reside in Bangladesh. He attended primary and secondary school. He declared that he resided in [Country 1], [Country 2] and [Country 3] as an asylum seeker before coming to Australia. He first arrived in Australia as an unauthorised maritime entrant [in] March 2013. He declared he was unemployed at the time of application. He declared that his employer in Bangladesh was the Bangladeshi Nationalist Party (‘BNP’) where he was involved in sports and politics as a [Occupation 1] from 2004 to 2012.Applicant’s claims

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.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 issue in this case is whether the applicant is a person in respect of whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the matter should be affirmed. The Tribunal has before it the Department files and the previous and present Tribunal files. The Department file contains copy of a letter from a Bangladeshi school headmaster dated 16 April 2013, copy of an undated handwritten doctor’s letter, copy of an English translation of a list of Bangladeshi Nationalist Student Party dated 20 October 2004, copy of the applicant’s Bangladeshi birth certificate, applicant’s legal representative written submissions from 2014, copy of an Irregular Maritime Arrival Entry Interview record dated 10 April 2013, application forms for a Protection visa dated 13 June 2013, applicant’s statement of claims dated 13 June 2013, applicant’s consent forms to seek personal information and to share and release information, copy of grant of Bridging visa to the applicant, copy of the Protection visa interview in CD form, and a copy of the delegate’s record. The previous Tribunal file contains copy of the application form for review of refusal of Protection visa, copy of the delegate’s decision record, copy of NSW photo ID card for the applicant, copy of online article on Bangladeshi political elections dated 7 July 2013, copy of the National Election Result 2008 page for [District 1] dated 27 January 2011, copy of Tribunal’s decision to release information to the applicant in full dated 21 November 2017, copy of Federal Circuit Court judgment dated ]in] February 2017, copy of Federal Court of Australia orders and judgment dated [in] August 2018, and a copy of filing of proceedings at the Federal Circuit Court of Australia dated 7 April 2016. The present Tribunal file contains acknowledgement of Court remittal to the applicant and various request for Medicare letters from the applicant.Applicant’s background