1909551 (Refugee) - [2024] AATA 3424

1909551 (Refugee) [2024] AATA 3424 (20 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: [Applicant name]
aka [Alias][1]
[1] The applicant has provided various spellings of his names, reflecting transliteration from Bengali. He have variously stated that his given name includes [names]. He has from time to time included a family name ‘[name]’.

REPRESENTATIVE:  Mr Monir Hossain (MARN: 0958158)
CASE NUMBERS:  1909551 and 2109778
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:James Silva
DATE:20 June 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions[2] not to grant the applicant a protection visa.
[2] Decision of 14 June 2017 refusing to grant the applicant a Temporary Protection visa, and decision of 21 June 2012 refusing to grant the applicant a Safe Haven Enterprise visa.

Statement made on 20 June 2024 at 3:40pm
CATCHWORDS
REFUGEE – Protection Visa – Bangladesh – race – religion – Bengali Muslim – fear of harm from the ruling AL party – a member of the BNP – politically motivated false charges – applicant’s account vague and unsubstantiated – a particular social group – a failed asylum seeker – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 57, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
MIAC v SZQRB [2013] FCAFC 33
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
APPLICATION 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) on [date] 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 14 June 2017 to refuse to grant the applicant a Temporary Protection (subclass 785) visa (‘TPV’) under s.65 of the Migration Act 1958 (Cth) (the Act). The second application is for review of a decision dated 12 July 2021 to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa (‘SHEV’).
Procedural history
Initial processing as a UMA: Officials of the 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 22 March 2013, the Minister lifted the s.195A bar. The applicant was granted UJ449 (Humanitarian Stay) and WE050 (Bridging E) visas, and released from detention.
On 11 January 2016, the Minister lifted the s.46A bar and invited the applicant to apply for a protection visa.
Temporary Protection visa (TPV)…

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 1909551 (Refugee)

Details

AGLC: 1909551 (Refugee) [2024] AATA 3424
Case: [2024] AATA 3424
Decision Date: 20 June 2024

CaseChat Overview and Summary

The applicant, a Bengali Muslim from Bangladesh, sought a protection visa, claiming a well-founded fear of persecution due to his political activities with the Bangladesh Nationalist Party (BNP) and his status as a failed asylum seeker. The dispute concerned whether he met the criteria for a protection visa under Australian migration law. The matter was heard by James Silva.

The court was required to determine if the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Specifically, the court had to assess whether the applicant's claims of harm from the ruling Awami League party, including intimidation, attacks on his home, and politically motivated false charges, were credible and constituted persecution. Additionally, the court considered whether his status as a failed asylum seeker presented a real chance of harm upon return to Bangladesh.

The court found that the applicant's account was vague and unsubstantiated, raising significant credibility concerns. While acknowledging the applicant's claims of political involvement and subsequent persecution, the court was not satisfied that these claims established a well-founded fear of persecution as defined by the Migration Act 1958. The court noted inconsistencies in the applicant's evidence, particularly regarding his marital status and family, which further undermined his credibility. The court concluded that the applicant did not satisfy the criterion for a protection visa.

The decisions not to grant the applicant protection visas were affirmed.

Orders

Orders of the court

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Background

Background to the litigation

The applicant also appears to claim fearing harm if he returns to Bangladesh as a failed asylum seeker.Background The applicant is a [age]-year-old man from [Area 1], [Union 1], [an] upazila (subdistrict), Jessore district. According to Google Maps, [Area 1] is [location deleted]. He lived there until his departure from Bangladesh in 2009 (at the age of [age]). He is a Bengali Muslim, and a speaker of Bengali (Bangla). The applicant attended school from 1988 to 1995. He indicated in the SHEV application that he discontinued his schooling for financial reasons. He told the Tribunal that he started [a grade] but, despite pressure from his father, he stopped attending because he was not interested in study. After that, he worked for the family doing farm activities. This included, from about 2003 to 2008, work on the family’s [farm], jointly owned by him and his brother. That business ceased operation (he has on occasions linked that with his protection claims). After that, he worked casually as a farm labourer, before going to [Country 1]. The applicant indicated on his written applications that he has never married. § However, at the Entry Interview and at the Tribunal hearing he said that he is married and has a daughter born in [year] (currently [age] years old). § The applicant told the Tribunal that his wife and daughter are not interested in him anymore. He occasionally speaks with them or sends them a little money, but they need a husband and a father. He intimated that the pressure of being separated from his wife and daughter has undermined their relationships.§ In his response to the Tribunal’s s.424A issue, the applicant stated that he no longer has any contact with his wife, adding that for that reason he cannot provide a marriage certificate. At hearing, the applicant said that his wife’s family and his sister provide financial assistance to his wife and daughter. The Tribunal accepts that the applicant is married with one child; and that his prolonged absence from Bangladesh has caused strains in the relationship or led it to peter out. It appreciates that such separation can be a cause of great stress. It also considers it possible that, for reasons that are unclear, the applicant may simply have omitted reference to his wife and daughter in the TPV application, and then replicated this error in the subsequent SHEV application. Even so, it is unimpressed that he has failed to provide complete and accurate information about such basic matters. The applicant described his father as a farmer and small business owner, although he also referred to the family’s poverty (in the entry interview) and he alluded to financial problems as part of the reason for him having discontinued his schooling. At hearing, he said that the family home is empty (following the death of his parents), and the [farm] no longer exists (for reasons he linked with his protection claims). However, the family continues to own some land that is partly used for fruit cultivation and partly fallow, which is leased out. One of his sisters manages the (remaining) property.

Evidence

Evidence Before The Court

Excerpts from the relevant law are at Attachment A.CLAIMS AND EVIDENCEProtection claims The applicant claims to have been involved in the opposition Bangladesh Nationalist Party (BNP), to have become a party member in 2006, and to have helped campaign in the lead-up to the December 2008 parliamentary elections. The applicant claims to have been subject to pressure from supporters and cadres of the Awami League (AL), which won the 2008 elections. In the lead-up to the elections, this included personal intimidation, attacks on his home and threats to his family members. AL thugs also targeted the family’s [farm]; the applicant has variously referred to extortion demands, and other impacts on the farm (such as its ransacking and/or forced sale). The applicant claims that the attacks escalated after the AL’s election win. These included an assault in January 2009, which resulted in his hospitalisation, and his discovery that he was subject to false criminal charges relating to weapons. The applicant has also claimed, at various points, to have been kidnapped and released after the payment of a ransom; that the police refused to assist him; and that he was denied a Bangladesh passport due to the false criminal charges. He claims to fear that AL activists are still looking for him, and will be able to torture or kill him if he returns to Bangladesh. The applicant also appears to claim fearing harm if he returns to Bangladesh as a failed asylum seeker.Background The applicant is a [age]-year-old man from [Area 1], [Union 1], [an] upazila (subdistrict), Jessore district. According to Google Maps, [Area 1] is [location deleted]. He lived there until his departure from Bangladesh in 2009 (at the age of [age]). He is a Bengali Muslim, and a speaker of Bengali (Bangla). The applicant attended school from 1988 to 1995. He indicated in the SHEV application that he discontinued his schooling for financial reasons. He told the Tribunal that he started [a grade] but, despite pressure from his father, he stopped attending because he was not interested in study. After that, he worked for the family doing farm activities. This included, from about 2003 to 2008, work on the family’s [farm], jointly owned by him and his brother. That business ceased operation (he has on occasions linked that with his protection claims). After that, he worked casually as a farm labourer, before going to [Country 1]. The applicant indicated on his written applications that he has never married. § However, at the Entry Interview and at the Tribunal hearing he said that he is married and has a daughter born in [year] (currently [age] years old). § The applicant told the Tribunal that his wife and daughter are not interested in him anymore. He occasionally speaks with them or sends them a little money, but they need a husband and a father. He intimated that the pressure of being separated from his wife and daughter has undermined their relationships.§ In his response to the Tribunal’s s.424A issue, the applicant stated that he no longer has any contact with his wife, adding that for that reason he cannot provide a marriage certificate.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).DECISION The Tribunal affirms the decisions not to grant the applicant the protection visas.James SilvaMemberATTACHMENT - CRITERIA FOR A PROTECTION VISAExtract 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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