DECISION:The Tribunal remits the matters for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 17 February 2023 at 3:50pm
CATCHWORDS REFUGEE – protection visa – Bangladesh – political opinion – supporter of opposition party – membership and activities with student wing and campaigning for local candidate – harassment, intimidation and threats by governing party supporters – false criminal charges against brother later dismissed – short-term and low-level activities and no well-founded fear of harm – returned failed asylum seeker – mental health diagnosis and treatment – vulnerability to stress and relapse – incapable of doing paid work – country information – limited availability of mental health treatment, and social stigma – mental health ground claimed only in regard to complementary protection and relocation – claims considered cumulatively – small but real chance of serious harm under refugee criterion – decision under review remitted
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATIONS FOR REVIEW
The applicant claims to be a citizen of Bangladesh. He arrived in Australia by sea at the Territory of Ashmore and Cartier Islands (Ashmore) [in] January 2013, without documents or authorisation.
There are two applications for review before the Tribunal. The first application is for review of a decision made by a delegate of the Minister for Home Affairs on 15 June 2017 to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa under s.65 of the Migration Act 1958 (Cth) (the Act). The second application is for review of a decision dated 21 December 2020 to refuse to grant the applicant a Temporary Protection visa (subclass 785) visa.
Procedural history
Initial processing as a UMA: Officials of the (now) Department of Home Affairs initially considered the applicant as an unauthorised maritime arrival (UMA), and therefore subject to the bar against UMAs applying for visas under s.46A of the Migration Act 1958 (Cth) (the Act). On 11 January 2016, the Minister lifted the s.46A…
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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AGLC
1826690 (Refugee) [2023] AATA 874
Case
[2023] AATA 874
Decision Date
CaseChat Overview and Summary
The case involved an applicant seeking a protection visa, who claimed to be a supporter of the opposition Bangladesh Nationalist Party (BNP) and feared persecution by the governing Awami League (AL) party upon return to Bangladesh. The applicant also raised claims related to his mental health, specifically schizophrenia and depression, arguing that his return would exacerbate his condition and make relocation within Bangladesh practically difficult. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant had a well-founded fear of persecution on the grounds of his political opinion or broader anti-government views, and whether his mental health conditions rendered him eligible for complementary protection or impacted the reasonableness of relocation.
The Tribunal considered the applicant's political activities, which he described as short-term and low-level, and the evidence of false criminal charges against his brother, which had since been dismissed. It also examined the applicant's mental health diagnosis and treatment in Australia, noting his vulnerability to stress and relapse, and the limited availability of mental health treatment and social stigma in Bangladesh. The Tribunal applied the principles of refugee law, assessing whether there was a "small but real chance" of serious harm under the refugee criterion. It also considered the applicant's mental health in the context of complementary protection, particularly regarding the practicalities of relocation within Bangladesh.
Ultimately, the Tribunal concluded that the decisions under review, which refused to grant the applicant a Safe Haven Enterprise visa and a Temporary Protection visa, should be remitted for reconsideration. This outcome was based on the finding that the applicant satisfied section 36(2)(a) of the relevant legislation, indicating a real chance of suffering significant harm.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
In a statutory declaration dated 20 January 2023, the applicant advised the Tribunal ‘I do not have [a] subjective fear of harm solely on the ground of mental health issues’ but rather that his return to Bangladesh would cause a deterioration in his mental state, and make it practically difficult for him to relocate within the country. The Tribunal addresses below whether, on the material before it, there is a broader protection claim based on the applicant’s mental health conditions.Background The applicant is a [Age] year old man from [Location 2], Narsingdi District, Bangladesh. He is a Muslim Bengali; and speaks Bengali (Bangla) and, more recently, some English. The applicant lived in [Location 2] until at least late 2011. He said at hearing that this is close to or part of the Narsingdi city urban area. He claims to have moved to Raipura (an upazila, sub-district in Narsingdi district) and to Narsingdi city proper. He estimated that this is about two to two-and-a-half hours by rickshaw from his home. Although it is difficult to pinpoint the applicant’s location, Google Maps gives the distance between [Location 2] (the [Mosque]) and Raipura Upazila as [Distance]km. All these locations are in the general area of Narsingdi. He stayed there until his departure for [Country 1], in September 2012. The applicant attended primary and secondary school to [Year] (approximately aged [Age]). In his statement of claims, however, he referred to having started his political activities after completing his Secondary School Certificate (SSC) in Year 10, suggesting that he may have studied for a year or two longer. He claims to have been a volunteer worker the BNP from that time, and to have done unpaid work on the family farm. The applicant is unmarried and has not been in any relationship. His father died in approximately 2008, and his mother is a homemaker. She is currently living in the family home with the applicant’s paternal grandmother, and his younger brother. The applicant has an older sister, who is married and lives with her husband. His older brother, [Mr A], born in [Year], features in the applicant’s protection claims. The applicant said that he currently lives in Jamalpur, where he works in a [Workplace]. (This likely refers to Jamalpur, some 190km to the Northwest of Narsingdi.) His younger brother [Mr B] had previously lived and worked in the capital Dhaka, and then in [Country 2]. He is currently living in the family home. The applicant departed Bangladesh in September 2012, flying to [Country 1]. He said that he obtained a Bangladesh passport and used it to depart Bangladesh, but that an agent in [Country 1] took it. As noted above, he travelled to Australia in early 2013 by boat from [Country 3], without documents or permission. The Tribunal has limited information about the applicant’s circumstances in Australia. He worked in the [Work sector] for about two years, but in 2019 was diagnosed with schizophrenia and depression, and has since received insurance compensation for total permanent disability. He currently lives in a two-bedroom unit in Sydney. He shares his accommodation with a woman who has provided him with assistance, including with medical appointments. The applicant said that, due to the side-effects of his medication, he mainly stays home and watches television.Evidence
Evidence
Evidence Before The Court
The relevant law is summarised in Attachment A.CLAIMS AND EVIDENCEProtection claims The applicant claims to be a supporter of the opposition Bangladesh Nationalist Party (BNP), who participated in political activities with the party’s student wing from around [Year] until his departure from Bangladesh in 2012, particularly during the 2008 parliamentary elections. He claims to remain committed to the party, and future activism. He claims to fear that the Awami League (AL)-led government will persecute or significantly harm if he returns to Bangladesh, as a BNP supporter. Beyond this, his protection claims have evolved over time.§ During his primary applications, he claimed to have been subject to false criminal charges brought by local AL opponents. In 2011, he and his brother had an altercation with an AL thug over his treatment of a girl who was with him in public. This led to false charges of sexual harassment against the applicant and his brother, which caused the applicant to go into hiding and in mid-2012, flee the country for [Country 1]. The applicant has since advised that the charges were in fact against his brother, and have now been dismissed by the courts.§ The applicant claims that, in addition to his support for the BNP, which he has sustained in Australia, he fears that the AL government will persecute or significantly harm him due to his broader anti-government political views, and that they will target him as a failed asylum seeker imputed to have made political claims against the government. The applicant was diagnosed with schizophrenia and depression in 2019. His representative told the Tribunal that he has no instructions to present claims on the basis of the applicant’s mental health generally, but these are relevant when assessing his eligibility for complementary protection, insofar as they affect the reasonableness of any relocation. In other words, if the Tribunal were to find that he does not have a well-founded fear of persecution for a reason set out in s.5J(1) but is satisfied that there is a real risk he will be subject to significant harm in his home area of Narsingdi, his mental health conditions would make it not reasonably practicable for him to relocate to another part of Bangladesh where he does not face a real risk of significant harm. In a statutory declaration dated 20 January 2023, the applicant advised the Tribunal ‘I do not have [a] subjective fear of harm solely on the ground of mental health issues’ but rather that his return to Bangladesh would cause a deterioration in his mental state, and make it practically difficult for him to relocate within the country. The Tribunal addresses below whether, on the material before it, there is a broader protection claim based on the applicant’s mental health conditions.Background The applicant is a [Age] year old man from [Location 2], Narsingdi District, Bangladesh. He is a Muslim Bengali; and speaks Bengali (Bangla) and, more recently, some English.
Decision
Reasons for decision
On 16 August 2022, the Tribunal wrote to the applicant noting that the Tribunal has no jurisdiction to review a delegate’s decision twice: Jayasinghe v MIEA (1997) 76 FCR 301 and SZASP v MIAC [2007] FCA 771 and that, once it had completed the review in relation to case 1826690, it would no longer have jurisdiction in relation to application for review 1909434. The applicant accepted this, and withdrew the application. The Tribunal decided on 6 September 2022 that it had no jurisdiction in that matter, on the basis of the withdrawal.AAT case no 2100464: Application for review of the decision of 21 December 2020 to refuse to grant a TPV visa On 18 September 2020, the Department wrote to the applicant inviting him to lodge a valid application for a visa, within 7 working days. (The letter stated that the Minister had made a determination that s.91K did not apply to an application for a visa made within 7 working days; and that the Minister had also lifted the s.48A bar which would have prevented him from making a further protection visa application onshore following a protection visa refusal or cancellation. In late 2021, the Full Federal Court handed down the judgment in MICMSMA v CBW20 [2021] FCAFC 63 (CBW20) which found that the s.91K was not applicable to applicants who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. This means that, while the Minister had lifted the s.48A bar, in fact it had no practical effect, as the applicant was never subject to the s.91K bar. On 28 September 2020, the applicant applied for a Temporary Protection (subclass 785, TPV) visa. On 21 December 2020, a delegate of the Minister refused to grant the visa. On 15 January 2021, the applicant applied to the Tribunal for review of that decision (case no. 2100464). Therefore, the Tribunal has before it two valid applications for review.Combined applications Section 427(2) of the Act states that the Tribunal must combine the reviews of two or more Part-7 reviewable decisions made in respect of the same non-citizen. The Tribunal notes the practical benefit of doing so in this particular case, as the factual and legal issues in both the SHEV and TPV applications overlap significantly. The Tribunal wrote to the applicant on 22 July 2022, advising of its proposal to combine the three applications for review and produce one decision record, and inviting his comments. On 29 July 2022, the applicant requested the Tribunal to combine the review applications for 1826690 and 2100464. In subsequent correspondence, the Tribunal and the applicant referred to the combined review application with the case number ‘2100464’, for convenience. The Tribunal case files also reflect this.Outcomes For the following reasons, the Tribunal has concluded that the decisions under review – the decision to refuse to grant the applicant a SHEV subclass 790 visa and the decision to refuse to grant him a TPV subclass 785 visa - should be remitted for reconsideration, on the basis that the applicant satisfies s.36(2)(a).Criteria for a protection visa