2005186 (Refugee)

[2024] AATA 2090

2005186 (Refugee) [2024] AATA 2090 (19 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Abu Siddique (MARN: 0901413)

CASE NUMBER:  2005186 and 2109450

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:David McCulloch

DATE:19 February 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal:

a.affirms the decision not to grant the applicant a protection visa in matter 2005186 (Safe Haven Enterprise visa application made on 24 February 2016); and

b.sets aside the decision in matter 2109450 to refuse to grant the applicant a Safe Haven Enterprise visa for the visa application made on 12 October 2020 and substitutes it with a decision that the visa application was not valid.

Statement made on 19 February 2024 at 2:17pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – arrival at Territory of Ashmore and Cartier Islands – political opinion – BNP supporter – regular harassment by Awami League supporters – ex-wife’s family’s wealth – ex-wife family Awami League supporters – physical attacks by ex-wife’s family members – state protection unavailable due to Awami League being in government – credibility issues – application for Safe Haven Enterprise visa invalid and set aside – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 48, 65, 91K, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
DBB16 v MIBP (2018) 260 FCR 447
Luu & Anor v Renevier (1989) 91 ALR 39
MICMSMA v CBW20 [2021] FCAFC 63
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao‑Jing Li v MIMA (1997) 74 FCR 275

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 20 January 2017 and 1 July 2021, respectively, to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant claims to be a citizen of Bangladesh.

3. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] November 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 Act). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant him a Safe Haven Enterprise visa is a Part 7‑reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

4. The applicant was granted a Safe Haven (Subclass 449 – Humanitarian Stay (Temporary)) visa on 8 May 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 (CBW20), s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.

5. The applicant applied for a Safe Haven Enterprise visa on 24 February 2016 (the first visa application). A delegate of the Minister decided to refuse to grant this visa. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further protection visa application in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on s 5H(2), 36(1B) or (1C), or s 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act. Following this, the applicant purported to make a second application for a Safe Haven Enterprise visa on 12 October 2020 (the second visa application). However, the applicant’s first visa application was not invalid due to the operation of s 91K (see CBW20). This means that the s 48A bar was not lifted for the applicant because he was not within the class of persons specified in the then Minister’s s 48B Determination.

6. The first application for a Safe Haven Enterprise visa on 24 February 2016 was refused by the delegate on 20 January 2017. On 5 March 2020 the applicant was re-notified of his visa application refusal. An application for review of that decision was made on 16 March 2020.

7. The second visa application made on 12 October 2020 was refused by a delegate of the Department on 1 July 2021. An application for review of that decision was made on 26 July 2021. 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.

8. The applicant’s representative in the hearing indicated that there was no contention with the view that the application dated 26 July 2021 is invalid.  The Tribunal noted that that does not prejudice the applicant in any way because similar claims are made in the first application in which the Tribunal will be considering all of the evidence in both applications.

9. The applicant appeared before the Tribunal on 9 February 2024 at 9.30am to give evidence and present arguments. A prior hearing had occurred which was adjourned because of the representative’s concern with the quality of the interpreter. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

10. The applicant was represented in relation to the review. The representative attended the hearing.

    CRITERIA FOR A PROTECTION VISA

11. The criteria for a protection visa are set out in s 36 of the Act 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.

12. 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.

13. 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).

14. 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, which are extracted in the attachment to this decision.

15. 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), which are extracted in the attachment to this decision.

    Mandatory considerations

16. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Bangladesh, 30 November 2022, a copy of which was provided to the applicant in advance of the hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criterion for protection is met. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

18. The applicant’s migration history is extracted from the delegate’s Decision Record:

[Date]/11/2012

Arrived in the vicinity of Ashmore and Cartier Islands, Australia on board Boat

Cadillac. The applicant was taken to Darwin and was placed in detention

25/01/2013

S195A Ministerial intervention outcome – Not referred

06/05/2013

S195A Ministerial intervention outcome – Visa granted

08/05/2013

UJ-449 (Temporary Humanitarian Stay) visa granted, LUD1 15/05/2013; WE-050

(Bridging Visa E - BVE) granted, LUD 08/11/2013; Released from detention

09/11/2013

Unlawful status until 20/10/2014

13/10/2014

S46A Ministerial intervention outcome – Bar lift, visa application allowed;

S91L Ministerial intervention outcome - Bar lift, visa application allowed

21/10/2014

Multiple BVEs granted, LUD 12/04/2016

23/11/2015

S46A Ministerial intervention outcome – Bar lift to allow XE-790/XD-785/WE-050

Application

24/02/2016

XE-790 - Safe Haven Enterprise Visa (SHEV) application commenced
PRID [deleted]

17/03/2016

Associated BVE granted, LUD 10/10/2017

20/01/2017

SHEV application refused PRID [deleted]

06/06/2017

SHEV refusal affirmed by the Immigration Assessment Authority (IAA)
PRID [deleted]

[Date]/06/2017

Judicial review on IAA decision commenced PRID [deleted]

10/10/2017

Associated BVE granted (Out of effect)

06/08/2018

DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178,
making the SHEV application under PRID [deleted] invalid

[Date]/02/2020

Judicial review result – Minister withdraw PRID [deleted]

24/02/2020

Re-notification of SHEV refusal advising that applicant could seek merits review
with AAT PRID [deleted]

16/03/2020

Administrative Appeals Tribunal (AAT) review commenced on SHEV refusal
PRID [deleted]

01/10/2020

S91L Ministerial intervention outcome – Bar lift to allow visa application

11/10/2020

SHEV application commenced PRID [deleted]

21/10/2020

Associated BVE granted

27/05/2021

SHEV interview conducted

1. The following information is apparent from the applicant’s first application for protection form. The applicant was born on [date] in Jessore District, Bangladesh. The applicant speaks, reads, and writes Bengali and English. He is of Bengali ethnicity, whose religion is Sunni Muslim. The applicant was married in March 2012 and divorced [in] December 2013. The applicant’s parents, [sisters] and [brothers] reside in Bangladesh. From birth to January 2002, the applicant resided in Jessore, Bangladesh. From January 2002 to January 2007 the applicant resided in Dhaka, Bangladesh. The applicant returned to Jessore District in January 2007 and resided there until September 2012. From September 2012 to November 2012, the applicant resided at various addresses in Bangladesh, [Country 1], and [Country 2]. The applicant attended Primary School and High School in Jessore District from [year] to [year]. From January 2002 to June 2007, the applicant worked as [an Occupation 1] in Dhaka. The applicant was self-employed from July 2007 to September 2012 as a farm worker in Jessore.

2. The same information as indicated above is contained in the application forms in relation to the second application.

3. [In] November 2012 the Department conducted an Entry Interview, and the applicant provided the following responses to the interviewer’s questions as set out in the record of the interview:

   Q. Tell me why you left Bangladesh…
   We are poor. We can not manage our family well. I am the elder one in the family to work and earn money for the family. My family sold some land and property to collect money for my trip to come to Australia. They have spent 400,000 Taka for the trip. I had heard Australia helps poor people so I came here. I came here to work and to earn money to send for my parents because they have become old. I want to work here.
   Q. Are there any other reasons why you left Bangladesh?
   We have a problem with the villagers because of different political parties. People get murdered. They put pressure on the poor people.
   Q. Tell me more about these problems you have with the villagers…
   Houses get stolen (robbed). They make a hole in the back of the home to get stuff out of it. Sometimes they write letters to the family asking for money. We can not raise cattle. They steal them.
   Q. Who are doing these things?
   I do not know who does. They are known as Mastan and Kedar. They are the people who murder and rob the people.
   Q. Has anything specifically happened to you or your family that has made you decide to leave Bangladesh?
   My home was stolen. They steal our money when we keep money at our home. They do not want us to get rich. The harass us.
   Q. How do they harass you?
   They steal our household items at night. There is not (anything) like a beaten for us.
   Q. Have you or any of your family even been physically harmed?
   No.
   Q. Or threatened?
   No.
   Q. What would have happened if you had stayed in Bangladesh?
   It could happen… fighting. Some other problem could happen.
   Q. Is there any other reason why you left Bangladesh?
   I came here to work and I heard the Australian government is helping and accepting the poor people so I came here. That is all.
   Q. Where did you hear that the Australian government are helping poor people?
   When I was in Bangladesh I heard from friends who came.
   Q. Came where?
   Who came to Australia. I went with someone to the market. One of his family members came to Australia. I heard from them.

4. In the same Entry Interview, the applicant was asked ‘Have you or any members of your family been associated or involved with any political group or organisation’? and ‘Were you or any members of your family involved in any activities or protests against the government’? The applicant answered with ‘No’ to both those questions.

5. When asked to provide details of the applicant’s current partner, the applicant stated his partner’s given name was ‘[Wife A]’ and did not provide his wife’s family name.

6. The Departmental file indicates an Identity Interview was held with the applicant on 12 February 2013. The record of the interview indicates the applicant referring that his marriage took place in [named] village with a Muslim religious leader present. The marriage was not registered officially. The applicant indicates that he and his family belong to the BNP. The applicant’s school was located in an area where the new Chairman was a member of the Awami League. At one stage the applicant and his brother could no longer attend school out of fear of harassment. The applicant studied until year [grade]. The applicant will often attend political gatherings and protests organised by the BNP where police would often harass political party supporters. The applicant and his family were regularly harassed by Awami League supporters.

7. On the Departmental file is the record of the following additional claims made in the interview that took place on 7 March 2013:

   Additional information provided by [the applicant], based on his latest, and second only, statement of claims since being Entry Interviewed on [date]/11/2012, very soon after his apprehension.

   [The applicant] stated that since he now understands the need to qualify as a refugee by the Convention Definition, he states as follows:

   •         He was an active supporter of the Bangladesh National Party (BNP) when in Bangladesh.

   •         His earlier statements of his poverty and hardship still stand, and people in that social group receive no justice in Bangladesh, while political leaders in power take all benefits for themselves.

   •         Two days before this interview of 7/3/2013, two persons of his village from the same political party as he were killed for their BNP connections. His family as supporters of the BNP are forced to attend BNP meetings. They are victimised by whichever party they do not support, so they are forced to be active supporters of one side or another.

   •         He carries scars from beatings that were politically motivated. These took place some five months before he departed Bangladesh for Australia.

   •         Political opponents take pre-emptive action against BNP members to avoid retribution should the BNP return to power.

   •         Police offer no protection as they operate in chaos and political conflict. Soon after the BNP was voted out of office his father’s business began to have repeated attacks involving damage and extortion. His family is singled out because his grandfather relocated interstate due to flooding in his former area, and they are outsiders in their village now.

   •         His father advised him to leave the country and sold a piece of land to pay for the trip, because at that time [the applicant] was living in hiding

   •         When last interviewed on [date]/11/2012 he was fearful and ashamed of his personal story, so withheld it. In summary it relates to his marriage to the daughter of a rich family. This marriage was for mutual love, rather than an arranged marriage. His in-laws have subsequently rejected the union, and have used thuggery to keep him and his wife apart. As a poor person, he cannot receive justice in Bangladesh over the power of this rich family. They have effectively kidnapped his wife to separate the couple. When she has returned to him, the family have sent thugs to kidnap her again, beating him and his parents in the process and extorting money. The in-laws have also discovered that he keeps in touch with her from Australia, and have vowed to kill him on his return.

   [The applicant] said he is able to obtain statements from his home area to substantiate these claims, for example, the medical records of his injuries, and statements of his political affiliation. He was advised to submit these when he is able, preferably using the NT.Client shared email inbox.

8. The applicant provided the following statement of claims dated 1 December 2015 in relation to both applications (not corrected for spelling or grammar):

   Introduction

   1.     I am a citizen of Bangladesh. I do not have a right to citizenship or a right to reside in any other country.

   2.     My ethnicity is Bengali and I am a practicing Sunni Muslim.

   3.     I am a supporter of the Bangladesh National Party (BNP).

   4.     I was born on [date] in [Jessore] District in Bangladesh.

   5.     I have a Chairman’s Certificate and a Birth Certificate at my home in Bangladesh. I have asked my family to send me the original documents.

   6.     I had my Entry interview the day after I arrived in Australia. I had been at sea for about two weeks. I was tired, hungry and tense and I didn’t understand what the interview was for. I was told I had to attend an interview that day but was not told what the interview was about. I didn’t understand that I was being asked by the interviewer to explain to him why I need protection from Australia. For these reasons, I didn’t tell him everything relevant to my claims for protection.

   7.     In my Entry Interview, I said that I have some problems arising because of the political situation in Bangladesh, but I wasn’t asked anything more about this.

   8.     In my Arrival Interview, I said that my father’s name is [name deleted]. [Details deleted]. My father’s legal name is [name].

   9.     Similarly, in my Entry Interview, I gave my mother’s name as [name]. In my identity documents, her name is stated as [variation of that name]. [Details deleted].

   10.  I left school at the end of Year [grade] because my parents could not afford to continue my education.

   11.  I was married in about March 2012. My wife’s family did not accept the marriage and she divorced me about two years ago.

   12.  I left Bangladesh in September 2012 illegally, by boat from Chittagong. I have never held a passport. I went first to [Country 1] where I Stayed two days. The smuggler put me on a boat to [Country 2] and I stayed there for a bit over four weeks. From [Country 2] I caught a boat that was intercepted by the Australian Navy. I was taken to Northern Immigration Detention Centre in Darwin [in] November 2012.

   13.  In [location], most of the people are Muslims. There are about [number] people living there. Our family home is [location deleted] of the village. My uncle’s house is next door. Our farming land is [crops] about 10-15 minutes on foot from our house and very small. We grow [crops].

   14.  We live about half an hour’s walk from the local market.

   15.  In our village, there are many supporters of Jamaat-e-Islami, BNP and the Awami. But the majority of them are for the Awami League as it is currently in government. Even though they are already in power, the Awami League wants to take over everyone so that they have complete power and are ruling Bangladesh as a single party state. By name the BNP and other parties are there but they have no authority. For example, if you want to report a crime to the police, the first question the police will ask you is ‘what party do you support?’ This is what happened when my sister went to lodge a complaint. She said she supported the BNP and the police took her complaint but we haven’t seen any progress in her case.

   16.  The Chairman in our area, who is based in [location], is a representative of the Awami League. The Awami League Chairman knows that my family and I support the BNP. He is reluctant to issue any sort of documentation or provide help to families supporting other parties. If you have a problem and go to the Chairman, the Chairman will pretend to take the matter seriously and mediate the dispute or action your complaint, but then doesn’t do anything

   The country to which I fear returning

   17.  I fear returning to Bangladesh.

   What I fear may happen to me, by who and why, if I return to Bangladesh

   18.  I fear being arrested and assaulted or tortured by the government because I am BNP supporter.

   19.  I fear being killed, tortured, assaulted, inhuman and degrading treatment and punishment, serious economic and mental harm by the Awami League.

   20.  The Awami League and its mastaans do not think twice about killing someone even for a small offence. The Awami League is always after people supporting other parties. They investigate or follow you and are looking for you to make a mistake so they can come after you. They also regularly stole from me and my family.

   21.  I also fear being harmed by Awami League maastans associated with my wife’s family. They are from [named] village.

   22.  My x-wife’s parents are supporters of the Awami League. My x-wife’s family never accepted the marriage because my wife were in love with eachother. While I was still in Bangladesh, about a few months after the wedding, my wife’s family sent mastaans around to my home. I was living with my parents and my wife at that time. The mastaans tried to get my wife to leave the house and go and live back with her parents. They came in the day time with my wife's father and argued with us. My wife did not agree to go with them.

   23.  Later that evening, when I was returning home from the market, I was attacked. It was dark so I could not see who attacked me. A couple of people held me and someone else struck me with what looked like a torch, breaking my arm. They also hit me on my head, cutting me. I don't remember what happened after that. I went to the village doctor and he treated me with an injection.

   24.  The next day, I went to a specialist in another village, about 8-10 kilometres from my home. He fixed the break.

   25.  After this incident I feared for my life and decided to leave Bangladesh for my safety. We did not go to the police because our Chairman was from the Awami League. There was no point. If we had made a complaint, the police would have gone to the Chairman for instructions and the Chairman would have directed the police not to investigate or arrest the culprits. I also feared that if I went to the police, the Awami League mastaans might harm me again and more seriously.

   26.  I had heard of a similar story in our Union where a young man was murdered because he had had a love relationship with his wife prior to marrying her. He was killed on the school sports ground.

   27.  I heard from everyone in my family that in 2014, two of my sisters were as attacked. One of my older sisters was visiting her younger one who lives in the same area as my x-wife. I suspect that they were harmed by the same people who attacked me or they were at least associated with them. My older sister sustained some injuries to her forehead. She also went to the police and filed a complaint and then went to the court with a doctor's certificate. But no action has been taken by the authorities to arrest the attackers.

   28.  At the moment, most of the mastaans are from the Awami League. Mastaans associated with the BNP do not get support from the police and government.

   29.  There mastaans in my village have the complete backing of the Awami League and they commit horrendous crimes without consequences. They murder and steal.

   30.  This situation was particularly bad for me because I am a BNP supporter. All of my family support the BNP. They voted for the party in the past and still support them. As this was my family's tradition, I supported them also.

   31.  When I was [age range] years old, I started going to BNP meetings. I was living in Dhaka at that time but there were times when there was not a lot of work and I went home [for] a few days.

   32.  I have never voted for the party. Once you turn 18 you are eligible to vote but I was never registered. I think what happened is that I was in Dhaka when the registration authorities came around. At that time, I was not aware of how a person got onto the electoral roll.

   33.  People from the BNP used to call me and the other BNP members in the village to go to meetings. Sometimes, I would be called by BNP leaders in my village, sometimes from a nearby village. The main member and BNP representative in my village is [name deleted]. Meetings were not regular. Sometimes there would be two a month and at other times no meeting for five months. I went to meetings for all the years I remained in Bangladesh.

   34.  I did not go to any meetings in Dhaka because I didn't have connections within the BNP there. Also, Dhaka is not safe. There are kids who prey on newcomers and rob them with knives and so on. I was living in a room next door to the factory I worked in and keeping a low profile

   35.  In about 2014, after I left Bangladesh, there was an incident involving my family. In every election, the electoral commissioner assigns a symbol for each person standing for the election. A large banner was erected in support of the BNP candidate in front of my family's house. As BNP supporters, my family was happy to have the banner put up there. The Awami League came and cut down all our trees and they threatened my brother.

   Why I believe the authorities of Bangladesh cannot or will not protect me if I were forced to return there

   36.  As I have explained earlier, the police and the judiciary are run by the Awami League. Because my family and I support the BNP, there will be no justice to us for the harms done so far and there will be no protection to me in the future.

   Why I believe the serious harm I fear relates to all areas of Bangladesh

   37.  In Bangladesh, you never know when the awami League is going to harm you as a BNP supporter and especially now, the situation is particularly bad. With this last election, massive numbers of BNP supporters have been assaulted and arrested by the government.

   38.  Where I might go to try and hide, the Awami League and their mastaans will find me. Their reach is across the whole country. They brought back many enemies who had fled to Dhaka to our village and harmed them.

1. In addition to the statement of claims dated 1 December 2015, the applicant provided the following additional documents in support of the first application:

   ·Government of the people’s Republic of Bangladesh Birth Certificate issued to the applicant [in] December 2012.

   ·Bangladesh Citizenship and Character Certificate issued to the applicant, undated.

   ·Translated affidavit by the applicant’s father, dated 10 March 2013.

   ·A medical report issued on 3 December 2014.

   ·Legal submissions dated 15 December 2016.

2. In addition to the statement of claims dated 1 December 2015, the applicant provided the following additional documents in support of the second application:

   ·[Certificate III], issued to the applicant on 10 April 2020.

   ·[Certificate III].

   ·A certified and translated court/police document for an incident occurring on 2 December 2014.

   ·A certified and translated Medical Clearance Certificate dated 7 December 2014.

3. The applicant provided to the Tribunal a letter from [an official] of BNP Australia dated [November] 2023 indicating that the applicant has been an active member of the organisation, without providing dates of involvement.

4. The applicant also provided a translation of a Divorce Notice Form between the applicant and ‘[Wife A]’ dated [October] 2013.

5. The applicant also provided to the Tribunal various Bangladesh medical reports including from a cardiologist and psychiatrist as well as a Doppler study and CT scan report.

   Hearing, credibility (including prehearing correspondence), findings and assessment

6. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision‑making (Yao‑Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

7. In considering overall the credibility of the applicant, the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for … [but this should not lead to] … an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191] where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

8. The Tribunal is satisfied that the applicant is a citizen of Bangladesh and his claims will be assessed against Bangladesh.

9. Given the procedural complexity of these matters the Tribunal in advance of the hearing provided to the applicant an outline of credibility concerns to allow the opportunity for written comment in advance of the hearing with the assistance of the applicant’s representative.

10. The Tribunal wrote to the applicant on 24 October 2023 in the following terms:

    The Tribunal will be considering the Safe Haven Enterprise Visa (Class XE) visa
    applications with the case numbers 2005186 and 2109450 in a combined hearing.

    Given the fact of multiple applications, the lengthy procedural history of the matters
    and multiple interviews, the Tribunal is taking the opportunity in advance of the hearing
    to outline credibility concerns that have been identified by the Tribunal in its
    preparation of the matters for hearing. The Tribunal is providing an opportunity for
    written comment, with the assistance of your representatives, to be made in advance
    of the hearing in relation to these issues. There will be further opportunity for oral
    comments in the hearing.

    A very significant credibility concern is the failure by you in the entry interview that took
    place [in] November 2012 to articulate claims for protection subsequently made. A
    subsequent key claim is that you and your family had political involvement in the BNP
    and that you suffered physical harm as a result of that activity. However, in the entry
    interview you answered ‘no’ to the question as to whether you or any members of his
    family had been associated or involved with any political group or organisation. You
    also answered ‘no’ to the question as to whether you or members of your family had
    been involved in any activities or protests against the government. You also answered
    ‘no’ to a question as to whether you or any member of your family had ever been
    physically harmed.

    The Tribunal notes that you have subsequent to the entry interview, claimed harm
    based on an adverse reaction by the family of a woman to whom you had been
    married. While in the entry interview you indicate that you were married in 2012 to a
    woman by the name of [Wife A], in the multiple questions asked as to why you left
    Bangladesh, the problems you had in Bangladesh and the harm that you suffered, you
    did not make any reference to difficulties from your wife’s family. This is contradictory
    to later evidence given by you that members of her family caused you to be attacked
    at a market, inflicted physical harm upon members of your family, and that there is an
    ongoing risk of harm from your wife’s family.

    In relation to the fact that the entry interview makes no reference to you being a
    member of the BNP or suffering harm on that basis or any mention of harm from your
    wife’s family, the Tribunal acknowledges your indication in the written statement dated
    1 December 2015 that you had been interviewed just after you had arrived in Australia.
    You indicated that after being at sea for about two weeks you were tired, hungry, and
    tense and did not understand what interview was for. You indicated that you did not
    understand that you are being asked by the interviewer to explain why you needed
    protection from Australia.

    The Tribunal accepts the potential for stress, tiredness and anxiety and some degree
    of confusion at the time you were interviewed. Nevertheless, if you had left
    Bangladesh to escape harm with the desire to seek protection in Australia, the
    Tribunal considers that you would have had in your mind, as the utmost priority, a
    desire to articulate to the Government on arrival the difficulties that you faced in
    Bangladesh. However, you made no mention at all of harm based on involvement in
    the BNP or from your wife’s family, which are now your core claims.

    The record of the entry interview indicates multiple questions being asked of you and
    mostly cogent and coherent responses provided by you in addition to the ‘yes/no’
    questions asked. You were asked multiple open-ended questions as to why you
    cannot return to Bangladesh, harm that you suffered with multiple questions seeking to
    elucidate further difficulties. You provided personal details relating to your family,
    education, employment, and other matters.

    In the context of the significant detail that you provide in this entry interview, the
    Tribunal has great difficulty accepting tiredness or confusion prevented you articulating
    what would the most important information to convey to the Australian government,
    namely why you faced harm in Bangladesh and seek protection in Australia.
    The Tribunal is providing further opportunity to comment on your failure to provide this
    vital information in the entry interview and answering a number of ‘yes/no’ questions
    incorrectly as to what would seem comprehensible issues.

    The Tribunal also notes the following credibility concerns in relation to claims of you
    being married and facing harm from the family of your wife.

    In the interview with the delegate dated 27 May 2021 you are unable to name the
    family name of your wife or the name of your wife’s father. It seems unlikely that you
    would not know the family name of a woman that you had married.

    Initially in the same interview you indicated that you were married in the local
    registration office. This is inconsistent with evidence that you gave in the identity
    assessment interview on 12 February 2013 that you were not married officially, but
    religiously by a Muslim with no officials.

    In the interview dated 27 May 2021 you indicated that you could not get evidence of
    your marriage because of a possible storm and flooding causing the records to be
    destroyed. This is inconsistent with evidence a relationship was not officially
    registered.

    In your original application form for the protection visa you said that you were married
    [in] March 2012. However, in the identity assessment interview dated 12 February
    2013 you said that you were married 2.5 months before you left Bangladesh. Given
    that you left Bangladesh on your evidence in September 2012, that would mean you
    were married in June 2012 at the earliest which is inconsistent with claims you were
    married [in] March 2012.

    In your application form for the protection visa you said that the relationship began on
    1 January 2012. On the basis of the information in the application form that you were
    married [in] March 2012 that would mean that your relationship before marriage was
    two months. This is inconsistent with the interview that took place on 27 May 2021 in
    which she said that you dated for 5 to 6 months before getting married.

    Your written statement for protection says that the mastaans (thugs) associated with
    your wife’s family tried to get your wife to leave your home and go back to her parents.
    The statement indicates your wife did not agree to go with them. This is different than
    the evidence you gave in the interview of 7 March 2013 that your wife was effectively
    kidnapped by her family returned to you and that then thugs were sent to kidnap her
    again beating you and your parents in the process and extorting money.

    In the interview of 27 May 2021 you said that you have not kept in contact with your
    wife after arriving in Australia. This is inconsistent with your additional claims made in
    the interview on 7 March 2013 that your in-laws have discovered that you keep in
    touch with your wife from Australia and vowed to kill you.

    The Tribunal seeks comment in relation to these various credibility concerns. It is
    acknowledged that there may be understandable confusion in terms of specific dates
    and explicable inconsistencies to some extent in relation to timeframes, but the fact of
    multiple credibility concerns when considered cumulatively is potentially significantly
    adverse in terms of the truth of claims of the circumstances of the marriage and
    threats and harm by your wife’s family.

    The Tribunal invites you to comment on these issues by 24 November 2023.

11. The following response was provided on 28 November 2023:

    Thank you for giving me the opportunity to comment on the concerns the tribunal has. In response to the questions asked I say the following:

    [In] November 2012, I attended an interview with [name deleted] through a Bengali interpreter. At the beginning of the interview, I was told and explained the following information:

    "Important Information I need information about you and your arrival in Australia. This interview will be recorded. This interview is your opportunity to provide any reasons why you should not be removed from Australia. If you do not answer questions a decision may be made on the basis of the information we have. You are expected to give true and correct answers to the questions I ask. You should understand that if the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said. The Department is careful to protect the privacy of all information given by you during this interview. This information will not be made available to authorities in the country of your habitual residence. The exception to this is if a determination is made that you have no lawful basis to remain in Australia. In this situation, personal information may be provided to authorities of a foreign government where disclosure is necessary for your removal from Australia. The information you provide at this and any future interview may be used or disclosed as the basis for checks with authorities in countries through which you have passed or in which you have resided since you left your country of origin. The information may also be used to carry out checks with international humanitarian agencies concerning any contact you may have had with them before coming to Australia. The information may also be disclosed to Australian Government agencies authorised to receive information, including that in relation to foreign affairs, border control, health, security and law enforcement matters. The recording for this or any future interview may be disclosed to language experts contracted by the Australian Government to assist in verifying your place of origin."

    I want to bring the following key points of the above statement:

    ·I was advised that the purpose of the interview was for me explain why the Department will not remove me from Australia and failure to answer questions will lead them to remove me.

    ·I was advised that my information will be disclosed to a country or countries for conduct checks and possible removal from Australia.

    ·At the interview amongst other things I was asked "Tell me why you left Bangladesh... " and I was asked "Are there any other reasons why you left Bangladesh? In response I said:

    o"We have a problem with the villagers because of different political parties.

    oPeople get murdered. They put pressure on the poor people."

    I accept that it was not conveyed in repones to question "Are there any other reasons why you left Bangladesh? " that I was a member of Bangladesh Nationalist Party. I did not mention in response that I am a member of Bangladesh Nationalist Party as I was not asked to raise my asylum claim nor the Department invited me to apply for asylum at that time. It was my understanding at that time that that the Department is conducting an interview with possible removal and my details will be disclosed to a Country or countries. In addition, I was really exhausted at the time of the interview. I was not able to concentrate on the questions asked.  It is for the reason above I have not disclosed all my claims at the entry interview, but I did raise my claims when invited by the department and has been consistent on my claim.

    At the entry interview I identified that I am married to a girl named [Wife A]. [Wife A] does not have any other family name or names. She is only known as [Wife A]. I believe this is consistent with my claim. In addition, in my entry interview I was not able to provide any date as I had difficulty remembering any event due to exhaustion. I am consistent with my statement and confirm that I was married to [Wife A] and the relationship ended by way of divorce.

    I must convey to the tribunal that the interpreter was I given both at the entry interview and in 2013 were able to Speak and understand Bengali but they were from Burma or Myanmar. Hence their ability to interpret was not satisfactory to me and now I understand that they have misinterpreted in both of these interview.

12. In the hearing, the Tribunal asked the applicant about the medical reports from Bangladesh that have been provided to the Tribunal relating to 2 individuals.  The applicant indicated that these relate to his parents who both have suffered strokes. It was indicated that this is provided by way of background and are not core to claims for protection.

13. The Tribunal repeated to the applicant towards the end of the hearing a number of its concerns set out in writing before the hearing in terms of the failure of the Entry Interview to articulate claims for protection subsequently made. The Tribunal noted that in the written response it was indicated that one of the reasons that full information was not provided as to claims in the Entry Interview is because the applicant was told that information might be provided to other countries for the purpose of removal. The Tribunal indicated to the applicant that it had difficulty accepting this as a reason for not providing the information.

14. This is because it was made clear that it only relates to information relevant to returning the applicant and also the fact that the applicant has never provided this explanation previously on the multiple occasions when this issue had been put to him in prior interviews. Further, the applicant was specifically told in the introduction that reliability concerns could be raised if he later gives evidence that is different than what is indicated now.

15. In response, the applicant reiterated the tiredness, stress and anxiety as a result of the interview being conducted the day after his arrival in Australia. The applicant also indicated that the interview occurred just after a medical appointment in which he had received an injection and that he was not thinking straight.

16. While the Tribunal noted to the applicant that the Entry Interview was not the key means to articulate claims for protection, it nevertheless indicated that the applicant was being asked why he should not be removed from Australia and that this, the Tribunal would consider, would prompt the applicant as the first priority in the interview to explain why he faces harm in Bangladesh. The Tribunal also takes into account its reasoning set out in writing before the hearing as to its expectation that the applicant would make at least reference to some key issues now claimed for protection in the Entry Interview.

17. The Tribunal noted that the concerns about failure to provide key information in the Entry Interview are significantly compounded by numerous credibility concerns identified by the Tribunal in the course of the hearing. The Tribunal then proceeded to set out to the applicant in the hearing those credibility concerns and to seek the applicant’s responses.  Those concerns and responses follow together with credibility assessments.

18. Firstly, in the hearing, the applicant indicated that on the day he was assaulted after leaving the market by thugs he believed to be sent by his in-laws, that, at that point, his wife had been taken from his home by the thugs at the behest of his in-laws. The applicant indicated in the hearing that the thugs had arrived at his home taking his wife approximately 2 days before the assault leaving the market.

19. The Tribunal noted to the applicant that this is inconsistent with the applicant’s written statement which indicated that the thugs had come to the family home on the day of the assault, as opposed to 2 days before. The Tribunal noted to the applicant that, more significantly, the applicant’s written statement indicates that the thugs tried to get the applicant’s wife to leave with them, but that his wife did not agree to go, as opposed to the applicant in the hearing indicating that at this point his wife was taken never to return to him before he left Bangladesh.

20. In response, the applicant referred to potential interpreter problems. The Tribunal noted that the evidence came from the applicant’s own statement prepared with the assistance of a migration professional. The applicant referred to what he in fact indicated orally not being properly recorded. The applicant maintained that his wife had been taken by the thugs preceding the event when he was assaulted leaving the market.

1. The Tribunal has significant difficulty accepting that the applicant’s own statement prepared with support would be inaccurate in this significant detail. The inconsistency creates credibility concerns.

2. Secondly, the applicant has not been consistent in terms of whether the thugs associated with his in-laws assaulted his father. In the interview that took place on 3 December 2016 the applicant said that thugs associated with his in-laws came to the home after the marriage and assaulted the applicant’s father. In contrast, in the Tribunal hearing, the applicant indicated that his parents did not suffer any assault from the thugs apart from verbal abuse.

3. In response to this inconsistency put to the applicant in the hearing, he indicated that he was not there at the time his father was assaulted as seeking to explain the inconsistency.

4. This explanation does not satisfactorily explain the inconsistency because the Tribunal considers that the applicant would have been made aware of whether his father was beaten by the thugs.

5. This inconsistency creates credibility concerns.

6. Thirdly, there is a disconnect in evidence as to the applicant’s claimed BNP political involvement during the years from 2002 until 2007 that he lived and worked in Dhaka.  In the applicant’s detailed written statement he refers to not attending BNP meetings in Dhaka because of security concerns. This implies no political involvement by the applicant during his time in Dhaka.  However, in the hearing the applicant indicated that he attended BNP rallies while in Dhaka.  The Tribunal put to the applicant that it might have expected that, if true that he attended rallies in Dhaka, this would have been mentioned in his detailed written statement apart from simply saying that he did not attend BNP meetings because of security concerns.

7. The Tribunal also put to the applicant that it did not seem consistent that he would not attend meetings due to security concerns, yet would attend public rallies where it might be considered he would be more exposed to difficulty. In response, the applicant indicated that it might be a translation mistake.

8. The Tribunal has doubts that the applicant’s own statement prepared with the assistance of a representative would not, if true, have indicated relevant information as to political activity that the applicant attended BNP rallies in Dhaka in the context of the whole statement.

9. The inconsistency on this issue is given some adverse weight, albeit limited. It is considered cumulatively together with more significant matters.

10. Fourthly, the applicant has not been consistent in terms of whether he ever voted or tried to vote in the election in Bangladesh. In the hearing, the applicant indicated that he never voted in an election after he turned 18. The Tribunal then asked the applicant if he ever attempted to vote in an election, to which he answered that he did not.

11. The Tribunal put to the applicant that in the interview with the delegate he indicated that on one occasion he went to vote at an election but his ability to vote was disrupted by violence. The Tribunal noted that this evidence was inconsistent with that given in the hearing that he never tried to vote. In response, the applicant indicated that he misunderstood the question and there was an occasion when he went to a polling centre but there was chaos preventing him from voting.

12. The Tribunal asked the applicant a specific question as to whether he had ever tried to vote after he indicated that he had never actually voted. The Tribunal is not satisfied that the applicant was confused in responding to this question by indicating that he had never tried to vote. The Tribunal considers that if it were true that the applicant had tried to vote but had been unable to do so because of violence that he would have indicated this in response to this question by the Tribunal.

13. The inconsistency on this issue creates credibility concerns.

14. Fifthly, the applicant has not been consistent in terms of instances of physical assault in Bangladesh. In the hearing, the applicant indicated that the only occasion on which he was physically assaulted was on the occasion of leaving the market when thugs from his wife’s family attacked him and broke his arm and injured his knee. The Tribunal noted to the applicant that in one of his delegate interviews (on 3 December 2016) the applicant indicated that there had been an occasion where he was beaten by 2 to 3 people from the Awami League in the context where trees had been cut down and the applicant was there to seek to find out why the trees have been cut.

15. In response, the applicant indicated that in this incident there was not a physical assault.

16. The Tribunal does not consider that this explains the inconsistency. In the interview the applicant provided specific details of being assaulted in indicating that he was attacked using the branches of the trees and a small knife and axe.

17. This inconsistency is undermining of the applicant’s credibility.

18. Sixthly, the applicant has been inconsistent in terms of contact and threats from his wife and her family after the applicant arrived in Australia. In the interview of 27 May 2021 the applicant indicated that he has not kept in contact with his wife after arriving in Australia. This is inconsistent with his additional claims made in interview on 7 March 2013 that his in-laws have discovered that he has kept in contact with his wife from Australia and vowed to kill him.

19. In response in the hearing to this inconsistency the applicant indicated that he does not remember saying the latter. The applicant in the hearing maintained he has not had contact with his wife while in Australia.

20. The applicant has made the statement in interview that he has had contact with his wife in Australia which has resulted in threats from her family. The inconsistent claims that he has not been in contact creates credibility concerns as to the applicant’s claims to face harm from his wife’s family.

21. These credibility concerns are considered cumulatively.  These are combined with what the Tribunal considers is the very significant credibility problem of the applicant failing in the Entry Interview to articulate claims based on political involvement and harm from his wife’s family. For the reasons given, the Tribunal does not accept the applicant’s various explanations as to why he did not in the Entry Interview answer multiple questions correctly in relation to political involvement, harm suffered and feared both politically and from his wife’s family. Cumulatively considered, the six credibility concerns identified above in addition to the failure to make key claims in the Entry Interview, result in the Tribunal not being satisfied as to any core claims by the applicant as to why he needs protection. The Tribunal does not consider that the applicant has been a truthful witness.

22. The Tribunal is prepared to accept that the applicant was married, but it is not satisfied that his in-laws or thugs associated with them have threatened, assaulted or forcibly retaken the applicant’s wife or tried to forcibly remove her from the applicant’s home. The Tribunal is not satisfied that the applicant was assaulted by thugs associated with his in-laws causing injuries to his arm and knee. The Tribunal is not satisfied with the truth of the applicant’s claim to have been assaulted by members of the Awami League when the applicant was investigating the cutting down of trees. Indeed, in the hearing the applicant indicated that there was not an assault on this occasion and there have been no other instances of assault.

23. The Tribunal is not satisfied that the applicant’s in-laws or thugs associated with them have targeted the applicant or have an ongoing desire to cause him serious or significant harm should he return to Bangladesh.

24. The Tribunal is not satisfied as to the applicant’s claimed level of political involvement with the BNP.  While the Tribunal is prepared to accept that the applicant and his family may have been supporters of the BNP and had an intention to vote for them, the Tribunal is not satisfied that the applicant has been a member of the BNP or attended any rallies or meetings of the BNP in his home area or during his time living in Dhaka.

25. The Tribunal is not satisfied that the applicant has ever suffered any serious or significant difficulties as a result of his political views and activities.

26. The Tribunal is not satisfied that the applicant has had past political activity in Bangladesh such as to create an adverse interest in him or a targeting of him such that he faces a real chance of serious or significant harm from authorities or the Awami League as a result of that past involvement or current involvement.

27. The applicant has provided a letter from BNP Australia indicating that the applicant has been involved in the organisation in Australia but does not give any dates as to involvement. In the hearing, the Tribunal asked the applicant how long he has been involved with BNP Australia. The applicant indicated that he’s been involved for one or 2 years.

28. The Tribunal questioned the applicant as to why he had delayed involvement for so long from his arrival here in 2012. In response the applicant indicated that it was because he did not have knowledge of the activity of BNP Australia. The Tribunal put to the applicant that it might have thought given his claimed involvement in the BNP in Bangladesh he would have made enquiries about BNP activities in Australia at an earlier time.

29. The Tribunal put to the applicant considering his credibility issues cumulatively, and his delay in involvement in BNP Australia, that it might conclude that the applicant does not have a genuine desire to be actively involved in the BNP on return to Bangladesh. It could be determined that the recent involvement in BNP Australia has been undertaken for opportunistic reasons not demonstrating a genuine desire to be politically involved. In response, the applicant indicated that he is withdrawn and does not socialise limiting his involvement in Australia. The Tribunal asked again in terms of its potential view that the applicant would not be significantly politically involved on return to Bangladesh. In response the applicant indicated that he has never claimed to be a leader. He and his family are just supporters.

30. As indicated, the Tribunal accepts that the applicant is a supporter of the BNP in terms of the fact that he would vote for them in election. However, the Tribunal, including not believing the applicant’s claimed level of political involvement in meetings and rallies in Bangladesh, does not believe that on return to Bangladesh the applicant would desire to become a member of the party or actively attend meetings or rallies.

31. The Tribunal accepts from independent evidence including information in the DFAT report referred to that the political environment in Bangladesh is very volatile with degrees of harm and harassment suffered by those involved in opposition politics, including with the BNP.

32. However, the Tribunal is not satisfied that the applicant has any intention to be involved politically in Bangladesh in any way that would subject him to a real chance of serious or significant harm.

33. In the Entry Interview the applicant referred to difficulties because he and his family were subject to thefts from their home. The applicant in prior evidence indicated that these thefts stopped when the family home was upgraded to brick. The applicant confirmed in the hearing that the home has been upgraded to brick and that this has prevented thefts.

34. The Tribunal does not consider that the applicant faces a real chance of serious or significant harm as a result of thefts from the family home now it has been upgraded to brick. In any event, the Tribunal would not consider that thefts from his family home constitute a serious harm or fall within the definition of significant harm.

35. The applicant has also claimed that there is hostility towards his family as a result of them originally coming from another part of Bangladesh. In the hearing the applicant indicated that his forebears came from another part of Bangladesh and this did create local hostility. The applicant was asked what difficulties he has faced in this respect and he indicated that they have not been significant difficulties.

36. Given this evidence, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm as a result of his family forebears coming from a different part of Bangladesh, which the Tribunal accepts.

37. In the Entry Interview the applicant has claimed difficulties in Bangladesh due to poverty. The Tribunal accepts that the applicant and his family may have struggled to support themselves with the desire of the applicant to seek a better life in a developed country. However, such difficulties in Bangladesh do not meet the criteria of harm for protection.

38. The Tribunal does not consider that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.

39. In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason set out in s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, there is a real risk of him suffering significant harm.

40. 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 s 36(2)(a).

41. 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).

42. 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 criteria in s 36(2).

43. Thus, the applicant is not owed protection in relation to matter 2005186.  In relation to matter 2109450, as indicated, this is not a valid application.

    DECISION

44. The Tribunal:

    a.  affirms the decision not to grant the applicant a protection visa in matter 2005186 (Safe Haven Enterprise visa application made on 24 February 2016); and

    b.  sets aside the decision in matter 2109450 to refuse to grant the applicant a Safe Haven Enterprise visa for the visa application made on 12 October 2020 and substitutes it with a decision that the visa application was not valid.

    David McCulloch
    Member

    
    

    ATTACHMENT  -  Extract 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.

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    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.

    …