1915066 (Refugee)

[2020] AATA 2253

1915066 (Refugee) [2020] AATA 2253 (2 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1915066

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:James Lambie

DATE:2 June 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 02 June 2020 at 10:09am

CATCHWORDS

REFUGEE – protection visa – Bangladesh – Federal Circuit Court remittal – political opinion – Jamaat-e-Islami party member – unapproved relationship – daughter of Awami League supporters – legal proceedings to prevent contact – fear of killing – credibility issues – identity documents – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 45AA, 65, 91R, 91S, 423A
Migration Regulations 1994, r 2.08F; Schedule 2

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Bangladesh, applied for the visa on 30 September 2013 and the delegate refused to grant the visa on 8 April 2015.  That decision was affirmed by the Tribunal on 5 April 2016.  The Tribunal’s decision was remitted to Tribunal by the Federal Circuit Court of Australia [in] May 2016.  The decision of the delegate was set aside by the Tribunal on 12 April 2017, substituting a decision that the Protection (Class XA) visa application was not valid and cannot be considered.

3. [In] November 2017 this matter was remitted to the Tribunal as presently constituted by the Federal Circuit Court of Australia, with a direction for the Tribunal to determine the matter according to law and that the Tribunal has an application for a class XD visa before it and to decide on the merits whether the visa ought to be granted or not.

4. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Although the delegate refused the application as an application for a Protection (Class XA) visa, the effect of r.2.08F is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD) visa.

5. The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.

6. The applicant appeared before the Tribunal on 5 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

7. The applicant was represented in relation to the review.

   RELEVANT LAW

8. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

   Refugee criterion

9. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

10. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

11. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

12. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

13. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

14. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

15. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

16. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

17. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

18. 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 a protection 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 the applicant 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’).

19. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Mandatory considerations

20. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

22. The applicant arrived in Australia [in] December 2012 as an unauthorised maritime arrival. Initially and for some time, he identified himself as [Alias 1] or [Alias 1 variant], born on [Date 1]. On 7 May 2013 provided documents purporting to be his Bangladeshi birth certificate and citizenship certificate in the name of [applicant’s name], born on [Date 2]. These documents are discussed further below.

23. I have had regard to the other documents and information supplied by the applicant, including his statutory declaration of 9 September 2013, his interviews with departmental staff and two submissions lodged on his behalf at various times. A detailed submission dated 2 April 2016 was lodged for the purposes of the first Tribunal application.  He has not provided any new documentary material or submissions for the purposes of the hearing of this application.

24. The applicant claims to have been born on [Date 2] in [Village 1], district of Satkhira, division of Khulni, Bangladesh.  He is single with no children. He has [number of siblings]. He claims to have had about five years of religious education and to have worked as an [Occupation 1] before working variously in [other occupations].

25. The applicant claims to have met his girlfriend, [Ms A], in about 2008 when she was a [student]. She lived on the other side of the street from where he lived, and he used to walk past her house on the way to work. One day, he says, he dialled a wrong number on his telephone and she answered. Their relationship developed from that conversation, to the point, he says, that they decided they wish to spend the rest of their lives together.

26. An obstacle to their relationship soon became apparent: her family were supporters of the Awami League while he was a member of the Jamaat-e-Islami party. At some point, her brothers became aware of the relationship. They arranged for her to marry someone else and confined her to her family home. She escaped and made her way to him, but her brothers located them and beat him up. They took her away. He went into hiding. Afterwards, her family took court proceedings against him to prevent her seeing her again.  The brothers have threatened him with death if he contacts her again.

27. The applicant says that [Ms A’s] family would not accept him as [Ms A’s] husband because of his attachment to a rival political organisation, the disparity in the respective families’ wealth (her family being wealthy while his family is poor), and the fact that he has darker skin. He further says that her family is extremely well-connected within the Awami League and could use those connections to have him disappear. It was, he says, because of the violent treatment to which he had already been subjected and his fear of what might be meted out to him in the future that he decided to flee the country. He says that he could never return to Bangladesh because the Awami League would deploy its resources to track him down and it was inevitable that he would come to harm.

28. At the hearing, several problems with the applicant’s version of events became apparent. Previously, he said that they met through a wrong number but not that they had lived in the same neighbourhood and that he had seen her often before. He sought to confirm the story of the wrong number when prompted as to his previous statements. When asked about the likelihood of a wrong number connecting with the very same young woman in whom one had been interested for some time, he said he did not think it was strange.

29. His account of the commencement and duration of the relationship varied in the course of the hearing. At one point, he said that she was about [age] when they met and at another that she may have been [older age]. Similarly, he claimed to have been in a relationship with her for about four years before he left; at another point saying that the relationship lasted about two years. He claims the brothers found out about the relationship in about 2011, while at other times this was said to have happened in 2012.

30. The detail of having been caught with her by the brothers and beaten up, so far as I can tell, is entirely new. The detail of the court proceedings is also new. The applicant maintained these details when questioned.  There are no documents to support the claims of the court proceedings and the applicant provided no coherent detail as to how he became aware of them. The existence of such documents would, of course, lend his claims substantial credibility. He says that his parents told him about the proceedings and that he may have become aware of them after he left Bangladesh but could provide nothing further. When offered the opportunity to seek any relevant documents from his parents, he said he did not believe that any documents existed.  His explanation, that it had not occurred to him to raise these matters before, I do not consider reasonable.

31. Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence.  If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.

32. The applicant claimed that [Ms A] is still in Bangladesh and still intends to marry him. She still lives with her family and has not married anyone else. His account as to how they remain in touch seems contrived to exclude the possibility of any documentary proof of the relationship or her existence: he says that she has no mobile phone and no access to any device that would permit any independent written or oral communication. He said that he telephones an aunt and that she passes messages from one to the other. He could suggest no reason why a reasonably well educated and wealthy young woman would have so little contact with technology, other than that her brothers would not permit it. There are no photographs, letters or keepsakes that even minimally enterprising parties to a relationship of the nature described might be able to manage. In the circumstances, I do not accept the applicant’s account of the relationship in any respect.

33. Having not accepted the maintenance or existence of the relationship, there is little reason to accept the applicant’s claims that he might be subject to political persecution. In any event, he demonstrated no familiarity with the political positions of the Awami League or the the Jamaat-e-Islami party to which he variously claimed to belong or to have supported by attending meetings and rallies. He was unaware of Jamaat-e-Islami’s goals for a religious state and did not demonstrate any knowledge of its youth wing, the ICS. He was not able to tell me anything about the relatively recent deregistration of the party, or of the death sentences handed down to members of its senior leadership for the commission of atrocities during the civil war. He was unable to volunteer information about election campaigns, fundraising or any other party activities. He did not provide details as to the subject of the meetings and rallies he had attended. He provided no details that might support a conclusion that his family could be identified with the party. I consider that his claims about any involvement, attachment or identification with the Jamaat-e-Islami party are not plausible.

34. I have had regard to the DFAT Country Information Report: Bangladesh (22 August 2019) in order to determine whether an alternative formulation of the applicant’s claims might assist him. There is, however, nothing arising from his statement or any other material has submitted that would appear to give rise to a credible claim.  The report assesses that ordinary JI and ICS members who do not engage in political activities and demonstrations face a low risk of arrest.  Even taking the applicant’s claims at their highest, I cannot be satisfied that he faces any risk of harm by reason of any actual or imputed political opinion.

35. Having considered the applicant’s claim and evidence against the refugee criterion as described in paragraphs 9 to 17 above, I cannot be satisfied that the applicant is a person who fears harm in Bangladesh for a Convention reason.

36. A further matter arises from the only documentary evidence submitted by the applicant: the document purporting to be his birth certificate and a citizenship certificate. This was the subject of the Tribunal’s decision on 5 April 2016, finding that the birth certificate is a bogus document provided without a reasonable explanation, and therefore the grant of the visa is precluded by the operation of s. 91WA.  This decision was set aside on other grounds.  Despite the clear evidence cited in the Tribunal decision, and that of the delegate, that the document is bogus, and that no match could be found for it in the Birth Registration Information System of Bangladesh (BRIS)[1], and with the passage of some four years to provide any verifiable identification document, no material was produced by the applicant that might in any way address those findings.  While it is not necessary on this application for me to make an explicit finding for the purposes of s. 91WA, the applicant’s failure to produce any material that might substantiate any aspect of his claims, including that of his identity, is a matter I take into account in assessing his credibility generally.

    [1] and also see the DFAT Country Information report at 50.

1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. 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

4. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   James Lambie
   Senior Member