1908952 (Refugee)

[2023] AATA 4483

1908952 (Refugee) [2023] AATA 4483 (4 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICATIONS FOR REVIEW:               Applications for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection visa subclass XE-790 Safe Haven Enterprise Visa (‘SHEV’) under s 65 of the Migration Act 1958 (Cth) (‘the Act’)

APPLICANT’S REPRESENTATIVE:        Unrepresented

CASE NUMBERS:  1901480 + 1908952

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Kate Chapple

DATE:4 October 2023

PLACE OF DECISION:  Brisbane

DECISION:In relation to application for review case number 1908952, the Tribunal affirms the delegate’s decision dated 13 September 2017 to refuse to grant the applicant a SHEV.

In relation to application for review case number 1901480, the Tribunal does not have jurisdiction in this matter.

Statement made on 04 October 2023 at 7:00am

CATCHWORDS
REFUGEE – protection visa – Bangladesh – no claims for protection – wishes to return to Bangladesh – unlikely to face adverse attention as a failed asylum seeker – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 5AA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 91K
Migration Regulations 1994 (Cth), Schedule 2

CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63

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.

BACKGROUND

1. These are applications for review of a decision made by a delegate of the Minister for Home Affairs on 13 September 2017 to refuse to grant the applicant a SHEV under the Act.

2. The applicant who claims to be stateless, applied for the SHEV on 16 November 2016. The delegate refused to grant the SHEV, finding that: the applicant is not stateless; he is ethnic Bengali and a citizen of Bangladesh; his claims for protection are not supported; and while the applicant would be regarded as a failed asylum seeker on his return to Bangladesh, based on DFAT country information, he would be unlikely to face the adverse attention of authorities such as to satisfy the refugee or complementary protection requirements of the Act.

3. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] April 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a SHEV is a Part 7-reviewable decision in the Migration and Refugee Division of the Tribunal.

4. The applicant was granted a Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visa on 12 June 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands. Therefore, the SHEV application is not subject to the s 91K bar.

5. The applicant made an application for review on 22 January 2019 (case number 1901480), which was out of time.

6. On 23 March 2019, the Department wrote to the applicant advising that on 7 January 2019, the Federal Circuit Court declared that the applicant was not correctly notified of the delegate’s decision to refuse the SHEV. As a result, the Department re-notified the applicant of the refusal decision and his right to seek review under Part 7 of the Act.

7. The applicant made a valid application for review (case number 1908952) on 11 April 2019.

   APPLICATION FOR REVIEW CASE NUMBER 1901480

8. This is an application for review of a decision of a delegate of the Minister for Home Affairs on 13 September 2017 to refuse to grant a SHEV of the Act. The review application was lodged with the Tribunal on 22 January 2019.

9. As the applicant was not in immigration detention on the day the applicant was notified of the decision, an application for review of the decision had to be made within 28 days, commencing on that day: reg 4.31(2) of the Migration Regulations 1994 (Cth).

10. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 13 September 2017 and dispatched by post. At the time, it was thought the applicant had been correctly notified of the decision, and that applicant was taken to have been notified of the decision on 22 September 2017.

11. As the application for review was not received by the Tribunal until 22 January 2019, it was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

    APPLICATION FOR REVIEW CASE NUMBER 1908952

    EVIDENCE BEFORE THE TRIBUNAL

    SHEV application

12. SHEV application dated 16 November 2016.

13. Applicant’s statutory declaration dated 3 November 2016.

14. Applicant’s parents’ National ID cards issued by the Government of the People’s Republic of Bangladesh.

15. Other departmental records:

    15.1.Decision record relating to the delegate’s refusal decision.

    15.2.Interview audio files

    15.3.Case file.

    15.4.Internal records relating to the applicant.

    Application for review

16. Application for review dated 11 April 2019.

17. The Tribunal wrote to the applicant inviting him to attend a hearing on 3 October 2023 and to provide pre-hearing submissions.

18. Prior to the hearing, the applicant provided to the Tribunal confirmation that he intended to participate in the hearing with the assistance of a Rohingya interpreter. The applicant did not submit any further statements or documents in support of his case, or request the Tribunal to take witness evidence.

    The Hearing

19. The applicant appeared before the Tribunal at a hearing conducted in person on 3 October 2023, with the assistance of an interpreter (via video link). The applicant was unrepresented.

20. Early in the hearing, the interpreter indicated that the applicant’s accent and language use did not accord with his understanding and experience of the Rohingya language. The interpreter indicated that he was not comfortable proceeding due to the risks of misinterpretation. The Tribunal ascertained from the applicant that he also speaks Bengali and that he was prepared to proceed with the hearing being conducted in Bengali and English. The Tribunal ascertained from the interpreter that he is able to interpret in Bengali and that he was prepared to proceed on that basis.

21. The hearing was thereafter conducted in Bengali and English and neither the applicant nor the interpreter raised any problems with interpretation.

22. The applicant gave evidence over an approximate four and a half hour period.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The Tribunal notes that s 5AAA(2) of the Act provides that it is the applicant’s responsibility to specify all particulars of his protection claim and to provide sufficient evidence to establish the claim.

24. In considering the applicant’s claims and evidence, the Tribunal has taken into account the Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and the DFAT country information for Myanmar and Bangladesh.

25. Further, the Tribunal has made an assessment of the credibility of the applicant’s claims and evidence having regard to the Migration and Refugee Division Guidelines on the Assessment of Credibility.

26. The Tribunal notes that after approximately three hours of taking evidence, the applicant:

    26.1.Produced a copy of his Bangladeshi birth certificate.

    26.2.Produced a copy of his Bangladeshi national ID card.

    26.3.Confirmed he is a citizen of Bangladesh.

    26.4.Advised that he does not have a Bangladeshi passport.

    26.5.Advised that he wished to return to Bangladesh.

    26.6.Advised that he has no concerns about returning to Bangladesh; he wants to help care for his parents, wife and child who live together in Bangladesh.

    26.7.Advised that he has no claims for protection.

    26.8.Advised that he has been trying for some months to get the International Organisation for Migration to help him arrange travel documents to facilitate his return to Bangladesh.

    26.9.Advised that he didn’t understand he was required by law to disclose the above information to the Department, and apologised for failing to do so.

27. Based on the applicant’s evidence summarised in the preceding paragraph, the Tribunal considers it is unnecessary to assess and make findings on the applicant’s remaining evidence.

28. The Tribunal notes the following extract from the November 2022 DFAT Country Information Report for Bangladesh:

    [5.26] DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities take an interest in high-profile individuals, but the vast majority of returning Bangladeshis would not attract such interest.

29. The Tribunal considers that the applicant, on his return to Bangladesh, is likely to be regarded by the authorities as a failed asylum seeker, however based on the country information, he is unlikely to face adverse attention as a consequence.

30. The Tribunal indicated to the applicant that, based on his evidence, the Tribunal’s decision will be to affirm the delegate’s decision to refuse the SHEV.

31. The Tribunal notes that at the conclusion of the hearing, the applicant asked the Tribunal to assist him in obtaining a work visa so he could continue working in Australia until he returns to Bangladesh. The Tribunal explained to the applicant that it had power only with his SHEV application, and he would need to address any other visa matters directly with the Department.

    Application of law

32. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.

33. The Tribunal finds that:

    33.1.The applicant is a citizen of Bangladesh and a non-citizen in Australia.

    33.2.The applicant has no claims for protection under the refugee or complementary protection criteria set out in the applicable law.

    33.3.If the applicant is returned to Bangladesh, there is no real chance that he would be persecuted, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.

    33.4.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk the applicant will suffer significant harm.

    CONCLUSIONS

34. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.

35. There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.

    DECISION

36. In relation to application for review case number 1908952, the Tribunal affirms the delegate’s decision dated 13 September 2017 to refuse to grant the applicant a SHEV.

37. In relation to application for review case number 1901480, the Tribunal does not have jurisdiction in this matter.

    Kate Chapple
    Member

    
    
    

    ATTACHMENT A

    Summary of applicable law

    The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

    A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

    Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA.

    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).

    Relevant extracts from Migration Act 1958

    5 (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 family

    For 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 family

    For 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.