FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRO15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 284 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for Protection visa – Administrative Appeals Tribunal did not believe applicant’s factual claims – no jurisdictional error – application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), ss.36, 499 |
| Cases cited: Aporo v Minister for Immigration and Citizenship (2009) 113 ALD 46 CLI15 v Minister for Immigration and Border Protection [2016] FCA 1223 MZAKA v Minister for Immigration and Border Protection [2016] FCA 781 |
| Applicant: | CRO15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3397 of 2015 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 18 May 2016 |
| Date of Last Submission: | 1 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 1 March 2017 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr L M Dennis |
| Solicitors for the Respondents: | Minter Ellison |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Leave is granted to the First Respondent to file, read and rely upon the affidavit of Mr Liam Michael Dennis affirmed on 31 May 2016.
The Application filed on 15 December 2015 is dismissed with costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3397 of 2015
| CRO15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Bangladesh aged 26 years, having been born on 31 December 1990.
By Application filed in this Court on 15 December 2015 he seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 16 November 2015 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 22 August 2014 refusing to grant to him a Protection (Class XA) visa (Protection visa).
Background
The Applicant applied for a Protection visa on 6 June 2013, having arrived in Darwin on 28 March 2013 as an unauthorised maritime arrival. He stated that he had left his home in Bangladesh in February 2013.
In his Irregular Maritime Arrival Entry Interview of 12 April 2013 (Entry Interview) the Applicant claimed that “terrorist people” would kill him if he returned to Bangladesh because they had broken and ransacked his shop some “one and a half months ago” (presumably referring here to the time period prior to his departure) and subsequently threatened to kill him.
In his Statutory Declaration of…
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- Case
- [2017] FCCA 284
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Minister was satisfied that Cro15 met the criteria for a Protection visa under section 36 of the *Migration Act 1958* (Cth). This involved assessing whether Cro15 held a well-founded fear of persecution for reasons of imputed political opinion, as defined by Article 1A(2) of the Refugee Convention, or whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia, he would suffer significant harm, as defined by section 36(2)(aa) and (2A) of the Act.
The court applied the principles established in *CLI15 v Minister for Immigration and Border Protection* and *Minister for Immigration and Citizenship v SZQRB*, which clarify that a fear is well-founded if there is a "real substantial basis" for it, and that significant harm is limited to the specific circumstances outlined in section 36(2A). The court noted that the threshold for significant harm is high. The decision does not specify the final orders or outcome.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
In his Statutory Declaration of 4 June 2013 (Statutory Declaration) which formed part of his Protection visa application he claimed that he had left Bangladesh because of his “imputed political opinion as a person who did not comply with the demands of the most influential political party in Bangladesh”, being the Awami League Party (ALP), which was the current government, and that if returned to Bangladesh he would be captured, tortured and killed by supporters of the ALP. The Statutory Declaration further claimed that ALP supporters came to his shop and demanded donations for their party, which he refused to pay, and they then verbally abused and threatened him with the destruction of his shop if he did not pay them money. The men then left and returned in a larger group about two to three hours later and destroyed the shop. The Applicant then immediately informed his father, who went to the police station to make a complaint, but the police refused to accept the complaint. Thereafter the Applicant hid at his aunt’s place. Whilst he was residing at his aunt’s place, the ALP supporters discovered his father’s attempt to complain to the police. They went to his parents’ home, seeking him out and threatening that as he had not paid them money they would find and kill him. He then decided to leave Bangladesh to prevent any such attempt by ALP supporters. The relevant criteria and law concerning the grant of a Protection visa were recently and conveniently summarised by Burley J in the Federal Court of Australia in CLI15 v Minister for Immigration and Border Protection [2016] FCA 1223 at [34] to [41] as follows:[34]The Act provides for different classes of visa, one of which is a protection visa under section 36. A protection visa may be granted if the criteria in subsection 36(2)(a) are met, namely, where the Minister is satisfied that the person is a person to whom protection obligations are owed under the Convention relating to the Status of Refugees 1951, as amended by the Protocol relating to the Status of Refugees 1967 (Refugee Convention). Article 1A(2) of the Refugee Convention provides, that a refugee is a person who, relevantly:... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.[35]A fear of harm is “well-founded” for the purpose of subsection 36(2)(a) of the Act when there is a “real substantial basis for it”, even where the chance of the object of the fear eventuating is less than 50 per cent. A fear of harm is not “well-founded” if it is merely assumed or speculative; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at [48] (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). [36]Subsection 36(2)(aa) provides that a criterion for a protection visa is that the applicant for the visa is: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; ...[37] A person who is not a citizen of Australia is a “non-citizen”.[38]Section 36(2)(aa) recognises that a non-citizen who is not entitled to a protection visa because he or she is not a refugee may nevertheless be entitled to protection in Australia under the obligations owed by Australia to afford protection, including under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 and the International Covenant on Civil and Protection Rights 1966; Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (SZQRB) at [70] and [100] (Lander and Gordon JJ), and [300] and [313] (Besanko and Jagot JJ).[39]The proper test is whether there is a “real chance” that an applicant will suffer “significant harm” if returned to her or his country of origin: SZQRB at [242] – [246] (Lander and Gordon JJ, with whom Besanko and Jagot JJ agreed at [297] and Flick J at [342]).[40]Subsection 36(2A) in turn prescribes the circumstances in which a non-citizen will suffer significant harm as being 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.[41]The phrase “significant harm” does not bear its ordinary and natural meanings. Its meaning is limited to that defined by section 36(2A); SZTMC v Minister for Immigration and Border Protection [2015] FCA 1282 (SZTMC) at [10] (Perry J). It is apparent from this definition that a requirement that a person suffer significant harm imposes a high threshold; SZTMC at [10].