1907885 (Refugee)

Case [2024] AATA 2463

1907885 (Refugee) [2024] AATA 2463 (28 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1907885

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Peter Papadopoulos

DATE:28 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 March 2024 at 10:48am

CATCHWORDS

REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh National Party activist – particular social group – failed asylum seeker from a western country – political violence – physical assault – false criminal proceedings – political disappearances – fear of killing – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AA, 5H, 5J – 5LA, 36, 5AA, 46, 56, 65, 91, 189, 411, 412, 427, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
DBB16 v MIBP (2018) 260 FCR 447
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MICMSMA v CBW20 [2021] FCAFC 63
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sun v MIBP [2016] FCAFC 52
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816

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

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 April 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant is [an age] year old male who claims to be a citizen of Bangladesh.

  3. The applicant as represented in relation to the review.

  4. The issue in this case is whether the applicant meets the refugee criterion set out in s 36(2)(a) of the Act, and if not, whether he is entitled to complementary protection under s 36(2)(aa) of the Act.

  5. For the following reasons, the Tribunal has decided to affirm the decision under review.

    Procedural history

  6. The applicant departed Bangladesh sometime in…

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Details
AGLC
1907885 (Refugee) [2024] AATA 2463
Case
[2024] AATA 2463
Decision Date

CaseChat Overview and Summary

The applicant, a national of Bangladesh, sought a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution based on political opinion or membership in a particular social group, or alternatively, whether Australia had complementary protection obligations towards him. The decision was made by the Tribunal.

The legal issues before the Tribunal were to determine if the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958 (Cth), which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Additionally, the Tribunal was required to consider whether the applicant met the complementary protection criterion under section 36(2)(aa), which arises if there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Bangladesh, the applicant would be at real risk of suffering significant harm.

The Tribunal considered the applicant's claims that he was targeted by the Awami League due to his family's past support for the Bangladesh National Party (BNP). The applicant stated he was threatened and his home was damaged by the Awami League, leading him to leave his village for Dhaka. While he reported no incidents in Dhaka, he expressed a general fear of escalating political violence and corruption, particularly around elections, and felt he could not return to his village. The Tribunal applied established principles for assessing the credibility of asylum seekers, acknowledging the complexities arising from communication, mistrust, trauma, and stress, as outlined in cases such as *Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs* and *AVQ15 v Minister for Immigration and Border Protection*. The Tribunal also had regard to the Refugee Law Guidelines and Complementary Protection Guidelines.

The Tribunal affirmed the decision under review, indicating that the applicant did not meet the criteria for the grant of a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 23 September 2023, the Tribunal received an email from the representative to which the following documents were attached:· Letter from the representative dated 22 September 2023;· Attachment A – copies of the four photographs shown by the applicant at hearing (with notations detailing the identity of each person in each photograph) along with a fifth photograph depicting the applicant in amiable company with seven other young Bangladeshi men in an outdoor area (with notations detailing the identity of each person in each photograph, one of whom is [Friend A]);· Attachment B – Transcript of selected remarks made by the Applicant during his entry interview (transcript prepared by a NAATI accredited professional);· Attachments C, D, E, F and G – Certified copies of the court documents (in Bangla) previously provided to the Department along with NAATI accredited translations of those documents;· Attachment H – Statement (taken by the representative on 21 September 2023 without the assistance of an interpreter) from [Relative I] [details deleted]; · Attachment I – List of names referred to in the application addressing spelling and other naming inconsistencies in previous documents;· Attachment J – Statement (taken by the representative on 20 September 2023 with the assistance of an interpreter) from [Friend A], who claims to be the applicant’s friend and fellow BNP supporter from [Village 2], [District 1]. CONSIDERATION OF CLAIMS AND EVIDENCENationality: Country of reference/receiving country The applicant claims to be a national of Bangladesh. The applicant does not have, and did not arrive with, a passport. He provided various documents to the Department to establish his identity. He participated in an identity interview with the Department in March 2013 which the Tribunal has listened to. The Department officer was satisfied on his responses that the applicant was a national of Bangladesh. The Tribunal is also satisfied on the evidence of the applicant’s responses regarding his place and date of birth, family and background and the identity documents, that he is a national of Bangladesh and considers Bangladesh is the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.Credibility Assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[9] There are special considerations in relation to asylum seekers. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.[9] Fox v Percy (2003) 214 CLR 118 As credibility assessment is not an exact science, great care must be taken to ensure that the approach taken is reasonable, reflective and fair. The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia.[10] As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.[10] For example, Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.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.CLAIMS AND EVIDENCE PROVIDED TO THE DEPARTMENTEntry Interview – 21 January 2013 On 21 January 2013, the applicant was interviewed in [City 1] by a Departmental officer with the assistance of an interpreter in the English and Bengali languages. A record of the entry interview details the following transcript in relation to the question ‘Why did you leave your country of nationality?’:Why did you leave Bangladesh? Yes I left Bangladesh because of a political issue. The political issue is when I was in Dhaka I had a brother who was living previously in Dhaka and he has got friends in [Country 1] and he contacted his friends about me travelling to [Country 1]. For the travelling my brother sold the property. My brother spoke with his friend who is living in [Country 1] and then I came.You said you left BANGLADESH because of a political issue is that correct? Yes.What was the political issue? When my father was alive he used to be the [Position 1] in the village. After he deceased all the pressure from the political party came to me. The political party came to my home and they threatened me and they hit to my house. My family told me that we don't need you to be in this country please leave the village and go somewhere. Then I left the village and went to Dhaka with my brothers. Why did the political party come to your house? We used to support the BNP is a political party which stands for BANGLADESH NATIONAL POLITICAL. Our opposition party is AWAM LEAGUE. So the torture party is AWAM LEAGUE to us. You say the torture party, why did you say that? The torturing means the AWAM LEAGUE asked us to join them but we didn't join them because my father used to support the BNP. Also I was beaten by the BNP party that is why I mentioned the torture. When were you beaten? 2009 before I left the country. You said you left the country in 2012, why did it take you 3 years? I moved place I came to Dhaka. Did they have any contact with you when you were in DHAKA? Within 3 years in time I have never been back to my village unless it is a special situation like Ramadan or something like that. Nothing happened to me in DHAKA. Just to confirm, nothing happened with you at DHAKA is that correct? No. No problems while I was in DHAKA. Why did you leave Bangladesh then if you were safe in Dhaka? So there is no benefits to me to stay in Dhaka because I cannot go back to see my village and I notice that the situation is getting worse and worse divided and in future it might happen that we might be in danger. What might you be in danger of in the future? Anything will happen in the future means that before when I was in the country, there was protests about the election. Also the corruption is everywhere when the election is coming. There are fights party to party and there are terrible things happening especially when the elections come closer that make me to leave the country. Are there any other reasons why you left Bangladesh? I have another reason to give you. In Bangladesh I was born from my parents and I was in my mother's womb one day and she gave me the birth and I have seen the world and I have the shameful situation in my country whenever my mother asked me to buy her something I could not buy her. It is a great shame to me as a human and I cannot tolerates that.