1909091 (Refugee) - [2023] AATA 4196

1909091 (Refugee) [2023] AATA 4196 (7 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Rumana Jahan
CASE NUMBERS:  1909091 & 2018221
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Tamara Hamilton-Noy
DATE:7 September 2023
PLACE OF DECISION:  Melbourne
DECISION:

The Tribunal:
a.remits matter 1909091 (Temporary Protection visa application made on 28 August 2015) with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act; and
b.sets aside the decision in matter 2018221 to refuse the applicant a Safe Haven Enterprise visa application made on 10 September 2020 and substitutes it with a decision that the visa application was not valid.

Statement made on 07 September 2023 at 2:59pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – arrival in Australia by sea – Territory of Ashmore and Cartier Islands – section 91K bar not applicable – section 48A bar not lifted – invalid visa application – imputed political opinion – Jamaat-e-Islami (JI) – Bangladeshi Nationalist Party (BNP) – involvement in uncle’s campaign – anti-Awami league (AL) – particular social group – individuals whose family members are politically active or are perceived to be against the AL – credibility concerns – health and mental health – depression – Gastro-oesophageal reflux disease (GORD) – complementary protection – arbitrary deprivation of life – torture and cruel or inhuman treatment or punishment – reasonableness of internal relocation – state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AA, 5H, 5J, 36, 48A, 48B, 65, 91K
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
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
Background

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 29 April 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] October 2012. 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 Migration Act 1958 (Cth) (the Act)). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them…

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 1909091 (Refugee)

Details

AGLC: 1909091 (Refugee) [2023] AATA 4196
Case: [2023] AATA 4196
Decision Date: 7 September 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking protection visas. The applicant had made two applications: a Temporary Protection visa application on 28 August 2015, and a Safe Haven Enterprise visa application on 10 September 2020. The delegate refused the second application on 4 December 2020, and an application for review of this decision was lodged. However, the Tribunal noted that the second application was invalid due to a bar under section 48A of the Migration Act 1958.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(aa) of the Migration Act, which concerns Australia's protection obligations due to a real risk of significant harm upon removal from Australia. This involved assessing the applicant's claims of persecution in Bangladesh based on imputed political opinion due to his association with his uncle and a friend involved in opposition politics, specifically the Jamaat-e-Islami party, and his membership in a particular social group defined as individuals whose family members are politically active or perceived to be against the ruling Awami League. The Tribunal also considered the applicant's health and mental health claims, including depression and Gastro-oesophageal reflux disease (GORD), in the context of complementary protection, specifically arbitrary deprivation of life, torture, and cruel or inhuman treatment or punishment, and the reasonableness of internal relocation.

The Tribunal reasoned that the applicant's second visa application was invalid and therefore set aside the delegate's refusal, substituting it with a decision of invalidity. Regarding the first application, the Tribunal found that the applicant satisfied section 36(2)(aa) of the Migration Act, indicating Australia had protection obligations. This conclusion was based on the assessment of the applicant's well-founded fear of persecution for political opinion and membership in a particular social group, considering the evidence of harassment and violence by Awami League supporters in Bangladesh, the perceived corruption of local police, and the death of his friend. The Tribunal also considered that internal relocation was not a reasonable option and that state protection was unlikely to be effective.

Consequently, the Tribunal remitted the first matter, the Temporary Protection visa application, with a direction that the applicant satisfies section 36(2)(aa) of the Migration Act. The Tribunal also set aside the decision to refuse the applicant's Safe Haven Enterprise visa application, substituting it with a decision that the application was not valid.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The second visa application was refused by a delegate on 4 December 2020. An application for review of that decision was made on 21 December 2020. However, the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid. Claims and EvidenceEvidence before the Department The applicant has made two applications for protection to the Department. For both applications he provided the same statutory declaration, dated 30 July 2015, which set out the following claims for protection: I was born in Bangladesh on [Date 1], in [Village 1] in the Comilla District, Chittagong Division. The village is about a [number]-hour drive from Dhakar. I am a sunni Muslim and a citizen of Bangladesh.The Department of Immigration has had an incorrect date of birth for me which needs to be corrected. [Date 1] is the date of birth on my birth certificate and on my Bangladesh drivers licence and I have given the Department of Immigration both of these documents.My father, [Mr A], operated a fish business in Bangladesh. He cultivated fish in a fish farm and sold the fish in the market. My mother [Ms B] is a housewife. I have a brother and a sister. My brother is currently in [Country 1] working as a [Occupation 1] and my sister is at high school in Bangladesh.My official name is [applicant name]. This name is on my birth certificate and on my driving licence and passport from Bangladesh. My identity card in Bangladesh expired and new digital cards have been introduced. I cannot get one of these unless I attend in person. My family says they have dispensed with my old card. The nickname that I am most commonly known by in Bangladesh is [Alias 1]. This nickname comes from my grandfather. When I was initially questioned by immigration authorities, I gave my nickname rather than my official name because it is the name that I most often use. However I have told the Department of Immigration about this and make this application for a Temporary Protection Visa under my official name.I left Bangladesh because I experienced persecution from supporters of the Bangladesh ruling party, the Awami League. This was because they viewed me as being an opposition supporter because of my association with my uncle and a friend who were involved in opposition politics. I could not have moved to another part of Bangladesh to be safe because the Awami League is a national organisation who shares information throughout the country about its opponents.I left [Country 2] because I experienced further persecution from Awami League supporters there.I did not talk about my problems in Bangladesh when I first arrived because I was very scared. I did not know what was facing me in Australia. I worried that these problems would follow me here if I talked about my past. I thought it would be safer for me not to talk about it. Gradually I came to learn about he way things work here in Australia and to trust my case manager with the information about my past. My uncle [Mr C] (my father’s brother) was running for election in around 2004 or 2005 in [Village 1] on behalf of an opposition party, Jamaat Islamiah. People who were involved in his campaign were frequently harassed and physically attacked by Awami League supporters. Jamaat Islamiah is a Muslim party who want to establish Islamic law in Bangladesh. The Awami League is a secular party. As the Awami League is against religious rule in Bangladesh, they are strongly opposed.I also had a friend [Mr D] who was involved in political activities. He was involved with the Jamaat Islamiah party in [Village 1]. My friend [Mr D] would associate with members of the opposition and attend meetings and demonstrations.Because of my association with my friend and my uncle, I was also considered to be an opposition supporter. An Awami League national minister (the Minister of [specified portfolio]) lived in my village. His name is [Mr E]. [Mr D] went to the Awami League minister’s house and caused damage as part of a protest. I was not involved in this. After this incident, I was sitting in a club with [Mr D] and we were discussing this incident. Some people associated with the Awami League came and accosted us. An argument broke out about the attack on the minister’s house. A fight then started. When the fight started, we ran away from the club. We were afraid of the Awami League as they threatened us with violence. I have obtained a statement certified by the [named] Union Council which confirms this incident. The Union Council is responsible for five or six villages – I think it is like the local Councils here. I requested this certificate from them through my father after I came to Australia in support of my application.The Awami League is known to be violent towards those who support the opposition. Whenever there is a meeting or a protest, they will go to the gathering and attack the people present. There are security forces who follow the ministers around and carry out violent attacks on their behalf. Due to the involvement of my friend and my uncle in opposition politics, I was afraid of the Awami League. My younger sister [Ms F] is regularly harassed in school and abused verbally because she is considered an opposition supporter because of our uncle.I could not seek the assistance of the local police in the village because we were afraid that the police had been bribed by the Awami League. The local police are known to be very corrupt and assist whoever gives them money. The police are in the pay of the Awami League.After this incident, due to our fear of further attack, I, and my friend [Mr D] decided to leave the country. I spent time in Dhaka before leaving because of my fear. I couldn’t move to another part of Bangladesh to be safe because the Awami League, being a national government, is powerful throughout Bangladesh.My friend [Mr D] left for [Country 3] in 2006.My younger brother [Mr G] left for [Country 1] a couple of years after I left for [Country 2], to the best of my knowledge. I understand he was feeling unsafe and had received threats. He now lives and works legally as a [Occupation 1].I obtained a passport to leave Bangladesh. I obtained the passport by filling out a form and providing a copy of my birth certificate and a certificate from the Chairman of my District. I obtained a 3 year [visa] to work in [Country 2] with the assistance of an immigration agent.After I left for [Country 2] in 2007, I heard about some other incidents which would have affected me if I had not left Bangladesh. The Awami League supporters confronted opposition supporters in the market and other public places in the village and attacked them. I would have suffered similar harm if I had remained.I arrived in [Country 2] in 2007. I worked from 2007 to April 2011 for a chain of convenience stores called [Business 1]. I worked during that period in 4 different stores in [specified state] that were owned by a man named [Mr H]. Later I worked at a paper factory. The employers held my passports. I asked for my passport before I fled [Country 2] but the employers would not give it to me. He did not know I was leaving. I lived in [specified state] for the time I was in [Country 2]. While I was in [Country 2], I heard about the death of my friend [Mr D], who had returned from [Country 3]. He had returned to Bangladesh and had been beaten to death by Awami League supporters and left in the street. I fear a similar fate if I return to Bangladesh. I was told this over the phone by my father. I cannot remember which year in which he told me.I understand there are notes on my Department file saying that I stated my friend’s death occurred in 2006 however this is when he fled from Bangladesh for his safety. He went to [Country 3] and it was after he returned to Bangladesh some years later when I was in [Country 2] that he was killed.The Awami League were very active in the Bengali community in [Country 2]. There was a lot of discussion in the Bengali community about the activities of the Awami League and the opposition, and there were a lot of people in the community who were known to be supporters of the Awami League.Among the Bangladeshis in [specified state] was a person from a nearby village in Bangladesh. His name was [Mr I] and he was an Awami League supporter. He informed the other Awami League supporters of my background in Bangladesh – that I associated with [Mr D] and of my uncle’s political involvement. Once the Awami League supporters knew of my background, they (including [Mr I]) began harassing me. They would loiter outside my workplace, making threatening comments. Sometimes they would also harass me at my home but mainly at work. They would inform me about Jemaat Islamiah leaders being arrested and killed, and tell me that the same fate awaited me. I was frightened of them because of their reputation for violence. I was afraid that they would tell my boss that I was with Jamaat Islamiah and tell other lies about me.As a result, I changed jobs. From January 2011 until 5 September 2012 I worked as a [Occupation 2] in a [factory] called [Business 2]. I understand the boss at this factory arranged a new work visa for me and as I have said he held my passport. I believe the visa would have expired in 2013. [Mr I] and other Awami League supporters managed to find my new workplace and the harassment continued there. I was afraid to go to the [Country 2] police. They are hostile towards migrant workers and I worried that my problems with the Awami League supporters would only get worse. I decided I needed to leave [Country 2] to travel to Australia as [Country 2] was not a safe place for me. My working papers and second passport were still with my boss at the [factory] and my original passport was with my boss at the convenience store, [Mr H].In September 2012, I began arrangements to travel to Australia. I spoke to a Bengali person in [Country 2] who gave me the number of a Burmese man who could help to arrange my travel. He organised a boat from [Country 2] for me. I paid MYR 10,000 for this. I stayed in [Country 2] for about 1 month and 9 days, travelling gradually to [Country 3]. Upon arrival in Darwin I was taken into immigration detention.My father’s fish business has also been affected by the Awami League. In 2012, the fish stocks in the fish pond were poisoned by the Awami League. As a result his business was destroyed. Even though his brother (my uncle) has run for election a long time previously, he was seen as an opposition supporter. After my father’s business was destroyed, he was not able to recommence it and has not been in employment. Since I came to Australia, in telephone conversations with my father, he has told me on a number of occasions that he has received threats that if my brother or I returned to the country, we would be killed. He has received these threats from Awami League supporters.

Decision

Reasons for decision

There is no evidence that the applicant has a right to enter and reside in any country other than Bangladesh and the Tribunal finds that the applicant is not prevented from being owed protection by operation of s 36(3). DECISIONThe Tribunal:a.remits matter 1909091 (Temporary Protection visa application made on 28 August 2015) with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act; andb.sets aside the decision in matter 2018221 to refuse the applicant a Safe Haven Enterprise visa application made on 10 September 2020 and substitutes it with a decision that the visa application was not valid.Tamara Hamilton-NoyMemberATTACHMENT - 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

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