1909091 (Refugee)

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.