2100385 (Refugee)

Case [2024] AATA 3974

2100385 (Refugee) [2024] AATA 3974 (10 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Mr Mahalingam Sutharshan (MARN 0961664)

CASE NUMBER:  2100385

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Peter Papadopoulos

DATE:10 July 2024

PLACE OF DECISION:  Sydney

DECISION: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 Temporary Protection (Class XD) visa.

Statement made on 10 July 2024 at 11:31am

CATCHWORDS

REFUGEE – protection visa – Bangladesh – Federal Court remittal – imputed political opinion – particular social group – family association with Jamaat-e-Islami – failed asylum seeker – physical assault – extortion – fear of killing – disappearance of the applicant’s brother – social media activity – decision under review set aside

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 48, 65, 91, 423, 424A, 438, 499
Migration Regulations 1994, Schedule 2; rr 1.12, 2.08

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 91
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sun v MIBP [2016] FCAFC 52
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816

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 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 (Cth) (the Act).

  2. The applicant, [named], is [an age]-year-old male who claims to be a citizen of Bangladesh.  He arrived in Australia [in] May 2013 as an illegal maritime arrival.  He applied for a Protection (Class XA) visa on 11 June 2014.  The delegate refused to grant the visa on 27 January 2015.

  3. The applicant applied for a Protection (Class XA) visa.  However, by operation of s 45AA of the Act and…

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AGLC
2100385 (Refugee) [2024] AATA 3974
Case
[2024] AATA 3974
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a non-citizen who arrived in Australia as an illegal maritime arrival. The applicant claimed to fear returning to Bangladesh due to the political involvement and subsequent death of his brother, and the threats he received as a result. The Federal Court was required to review a decision concerning the applicant's protection visa application.

The primary legal issue before the court was whether the applicant met the criteria for a protection visa under the relevant provisions of the Act. This involved determining if the applicant had a well-founded fear of persecution, or if he was a member of the same family unit as a person who held a protection visa. The court also considered the provisions of section 36(2B) of the Act, which outline circumstances where a real risk of significant harm may not be established, such as the availability of internal relocation or general risks faced by the population.

The court examined the applicant's claims made during an entry interview, noting discrepancies between the interview record and the audio recording. It considered the applicant's assertion that he had not been involved in Bangladeshi politics, but that his brother, who was involved with Jamaat, was killed by supporters of the Awami League. The court also noted the applicant's claim that he was threatened and sought refuge with his uncle, who then facilitated his travel to Australia. Crucially, the court found no evidence that the applicant satisfied the criteria for being a member of the same family unit as a person who held a protection visa.

Consequently, the court determined that the applicant did not satisfy the criteria under section 36(2) of the Act for a protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include spouses, de facto partners and dependent children.CLAIMS AND EVIDENCE PROVIDED TO THE DEPARTMENTIllegal Maritime Arrival & Induction Interview [In] May 2013, the applicant arrived in Australia as an illegal maritime arrival. The applicant attended an Illegal Maritime Arrival & Induction Interview (entry interview) conducted by Departmental interviewing officers at the [named] Detention Centre. The first part of the entry interview was conducted on 29 May 2013. The second part of the entry interview was conducted on 7 July 2013. The entry interview was conducted with the assistance of an interpreter in the Bengali and English languages. According to the entry interview record, the applicant gave the following reasons as to why he left Bangladesh and feared returning to Bangladesh: · He had not been involved in Bangladeshi politics.· His [brother] [Brother A] was involved in politics with Jamaat and was killed as a result of that involvement. [Brother A] also had a shop and some ‘terrorist groups’ that asked [Brother A] for donations which [Brother A] did not pay. [Brother A] was killed in 2002 by [Mr A], a supporter of the Awami League.· He objected to these people killing [Brother A]. He contacted a lawyer but didn’t get justice. He also tried to attack the person who killed [Brother A] but was outnumbered. These people then came looking for him at his home and threatened to kill him. His [uncle] hid him in some other place so that he would not be harmed. · His [uncle] paid [amount] taka to an agent to facilitate the applicant’s travel to Australia by boat.· If he goes back to Bangladesh, he fears that he will be killed by the people who killed his [brother] who he had stood up against. The Tribunal has listened to a copy of the recording of the entry interview and refers to it, where relevant, in the findings and reasons below. However, it is clear from the Tribunal’s review of the recording that the entry interview record is not an entirely accurate or complete account of the applicant’s claims presented during the interview because:· The applicant did not specifically tell the interviewing officer on 29 May 2013 that he had not been involved in Bangladeshi politics.· The applicant told the interviewing officer on 29 May 2013 that:o his [brother] was killed in 2012 (rather than 2002);o a terrorist group (rather than groups) had asked his [brother] for donations;o [larger amount] taka (rather than [first amount] taka) was paid by the applicant’s [uncle] to the agent to facilitate the applicant’s travel to Australia by boat. · The applicant told the interviewing officer on 29 May 2013 that [Brother A] was killed at his shop (a detail that was omitted from the entry interview record).· The applicant told the interviewing officer on 7 July 2013 that he lived at his uncle’s address for about 10 to 15 days before he departed Bangladesh (a detail that was omitted from the entry interview record). The Tribunal has taken these matters into account in its overall assessment of the applicant’s claims and relies upon the recording as the basis of what transpired at the entry interview. Protection visa applicationProtection visa application form signed 8 June 2014

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).DECISION

Ratio Decidendi

Legal Principle Established

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 In accordance with Direction no. 84 – Consideration of Protection visa applications, 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.Member of the same family unit Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include spouses, de facto partners and dependent children.CLAIMS AND EVIDENCE PROVIDED TO THE DEPARTMENTIllegal Maritime Arrival & Induction Interview [In] May 2013, the applicant arrived in Australia as an illegal maritime arrival. The applicant attended an Illegal Maritime Arrival & Induction Interview (entry interview) conducted by Departmental interviewing officers at the [named] Detention Centre. The first part of the entry interview was conducted on 29 May 2013. The second part of the entry interview was conducted on 7 July 2013. The entry interview was conducted with the assistance of an interpreter in the Bengali and English languages. According to the entry interview record, the applicant gave the following reasons as to why he left Bangladesh and feared returning to Bangladesh: · He had not been involved in Bangladeshi politics.· His [brother] [Brother A] was involved in politics with Jamaat and was killed as a result of that involvement. [Brother A] also had a shop and some ‘terrorist groups’ that asked [Brother A] for donations which [Brother A] did not pay. [Brother A] was killed in 2002 by [Mr A], a supporter of the Awami League.· He objected to these people killing [Brother A]. He contacted a lawyer but didn’t get justice. He also tried to attack the person who killed [Brother A] but was outnumbered. These people then came looking for him at his home and threatened to kill him. His [uncle] hid him in some other place so that he would not be harmed. · His [uncle] paid [amount] taka to an agent to facilitate the applicant’s travel to Australia by boat.· If he goes back to Bangladesh, he fears that he will be killed by the people who killed his [brother] who he had stood up against.