1315621 (Refugee)

[2016] AATA 3069

1315621 (Refugee) [2016] AATA 3069 (11 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

RRT CASE NUMBER:  1315621

COUNTRY OF REFERENCE:                  Bangladesh

TRIBUNAL MEMBER:  Bruce MacCarthy

DATE:11 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 11 January 2016 at 11:20am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Bangladesh, applied for the visa [in] January 2013 and the delegate refused to grant the visa [in] September 2013.  

3. The applicant appeared before the Tribunal as previously constituted (T1) on 24 February 2015, though that hearing was adjourned (due to technical issues with a video link) without any evidence being taken.   The applicant also appeared before the Tribunal as currently constituted (“the Tribunal”) on 3 December 2015, to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.  The applicant was represented in relation to the review by his registered migration agent.

   RELEVANT LAW

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

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

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …

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

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

9. There are four key elements to the Convention definition.  First, an applicant must be outside his country.  Second, an applicant must fear persecution.  Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)).  Examples of ‘serious harm’ are set out in s.91R(2) of the Act.  The High Court has explained that persecution may be directed against a person as an individual or as a member of a group.  The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality.  However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.  Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutors.

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

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

12. In addition, an applicant must be unable, or unwilling because of his fear, to avail himself of the protection of his country or countries of nationality.  The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad.  Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

13. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

14. If a person is found not to meet the refugee criterion in s.36(2)(a), he may nevertheless meet the criteria for the grant of a protection visa if he is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

15. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1).  A person will suffer significant harm if he will be arbitrarily deprived of his life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.  ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

16. 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.

    Section 499 Ministerial Direction

17. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Credibility

18. When determining whether a particular applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims he has made.  This may involve an assessment of the credibility of the applicant.  When assessing credibility, the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his claims.  However, it is not required to accept uncritically each and every assertion made by an applicant.  Further, the Tribunal need not have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.  Nor is it obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

19. If the Tribunal were to make an adverse finding in relation to a material claim made by an applicant but were to find itself unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MIMA v Rajalingam (1999) 93 FCR 220).

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. In connection with the application, the applicant has submitted photocopies of a number of documents he said were issued to him in Bangladesh.  These include, a birth certificate, a University degree and a secondary school certificate.  The biographical details on these documents are consistent with those given by the applicant in his application form.  The authenticity of these documents cannot be verified but, in the absence of any evidence to the contrary, the Tribunal finds that the applicant is a citizen of Bangladesh.  Accordingly, the Tribunal will assess his claims as against that country.  There is no evidence to suggest that the applicant has any right to reside in any country other than Bangladesh.

21. The issue in this case is whether the applicant faces harm in Bangladesh from terrorist groups who have sought to recruit him.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    The applicant’s arrival in Australia

22. According to the decision under review (a copy of which the applicant provided to the Tribunal), the applicant arrived [in Australia] [in] June 2012 without any documentation.  Other Departmental records indicate that he was briefly interviewed on that date to establish some basic details of his identity and his purpose in coming to Australia.  Later, he was interviewed in considerable detail [in] June 2012 and [in] August 2012 about his personal and family background and the circumstances which prompted him to leave his country and his travel to Australia.  His responses at these interviews are set out in a record of “Irregular Maritime Arrival Entry Interview” (“the Entry Interview” which appears at folios 90 to 99 of the Department’s file.  This written record was signed by the interviewer, the applicant, and an interpreter on [that date in] August 2012.

    The applicant’s claims

23. The applicant’s claims for protection were set out in a statutory declaration dated [in] January 2013 (at folios 55 to 58 of the Department’s file).  He elaborated on these claims in oral evidence given at an interview [in] August 2013.   A CD recording of that interview is located at folio 100 of the Department’s file.  The Tribunal has listened to that recording and is satisfied that the delegate’s summary of the applicant’s claims, appearing at pages 4 and 5 of the decision record, together with other references to details of his oral evidence set out elsewhere in the decision record, represents a fair précis of the applicant’s claims as they were put to the Department.

24. In brief, the applicant claimed to fear persecution from terrorist groups who made threats against him in an attempt to force him to join them.  In his written claims, he referred to these groups as “Shorbuhara, Hog Group and the Communist Party.” 

25. In written submissions to the Tribunal, the applicant’s agent referred to the first of these groups as the “Purba Bangla Sarbahara” or “Sarbahara Party” and described it as “a communist party in Bangladesh and known for extortion, crime and carrying out violent attacks against its opponents.”  The Tribunal is aware of other spellings, including that used by the delegate, namely “Sharbohara.”  In these reasons, the Tribunal will refer to this group as “Sharbohara.”

26. In written submissions to the Tribunal, the applicant’s agent referred to the second of the groups mentioned in paragraph 24 above as the “Hoque group” and referred to information suggesting that this group (which later took the name “Bangladesher Communist Party”) was an offshoot of Sharbohara, led by one Mohammed Hamidal Hoque.  At the hearing, the applicant confirmed that the group in question is the “Hoque group” and the Tribunal will therefore refer to the group by that name.

    The timing of alleged events

27. There are contradictions in the evidence before the Tribunal regarding the time alleged events took place.  At the hearing, the applicant confirmed his written claim that the terrorist groups in question had first approached him urging him to join them in 2006.  However, as discussed with him at the hearing, he said in the Entry Interview that these approaches had taken place “since 2004/2005.”  The precise timing of any such alleged approach is not, of itself, crucial to the applicant’s claims, but the Tribunal would expect the applicant to have been able to recall with consistency when such approaches were made. 

28. When this was discussed with the applicant he said that 2004 and 2005 was when those groups had approached one of his [brothers].  He said they were targeting that brother and he fled to Dhaka after which they started targeting him (the applicant) in 2006.  The Tribunal has considered this explanation, but does not accept it.  Given that the applicant thought it significant to mention the alleged approach to a cousin of his in his written statement of claims submitted to the Department, if there had been an approach by terrorist groups to his brother, the Tribunal would have expected that to have been mentioned in his written statement of claims. 

29. Later in the hearing, the applicant and his agent stated that contradictions between his later claims and things he said in the Entry Interview may have arisen because, at the time of his entry interview, he had just completed an arduous journey by sea and was tired and confused.  The Tribunal has considered this explanation but is satisfied, for reasons set out below, or does not accept it.

30. As detailed in a letter sent to the applicant on 2 December 2015 in accordance with the provisions of s.424A of the Act, when the applicant first arrived [in Australia] [in] June 2012, he was briefly interviewed on that date to establish some basic details of his identity and purpose for coming to Australia.  He was not asked for details of his claims.  He was only asked if he was seeking Australia’s protection and to state, in one sentence why he was seeking protection.  In response he said that he was seeking protection “just to survive and to live (a) good life.” 

31. Some time later, officers of the Department conducted what the Entry Interview.  Parts A and B of the interview took place [in] June 2012, nearly 2 weeks after his arrival.  It is not clear whether part C of the interview, which dealt with such things as his reasons for leaving Bangladesh and information about his travel to Australia was also conducted [in] June 2012 or whether it was conducted [in] August 2012.  However, what is not in doubt is that, on the latter date, a record of all 3 parts of the interview had been set out in writing and were read out to him with the assistance of an interpreter.  The record of interview was signed by the interviewer, the interpreter, and the applicant. 

32. As explained in the Tribunal’s letter of 2 December 2015, this information is relevant because it indicates that the Entry Interview was not conducted immediately on the applicant’s arrival in Australia.  Moreover, the applicant confirmed what had been said in the interview almost 8 weeks after his arrival in Australia when he signed the record of interview [in] August 2012.  The Tribunal pointed out that, if it relied upon the information about the dates on which the Entry Interview was held it may not accept that mistakes were made in the entry interview because he was tired and confused having just completed an arduous journey, and may therefore give considerable weight to the contradictions previously discussed at the hearing about between what was said in the entry interview and what he later claimed.

33. The applicant’s migration agent responded to the Tribunal’s letter of 2 December 2015 on the applicant’s behalf on 16 December 2015.  The agent said that the information provided by the Tribunal “does not confirm that mistakes may not have arisen either in the course of the interview all the transcribing of it, notwithstanding the signing of the record.  The agent pointed out that, in his protection visa application, the applicant had “corrected” the years of birth of his siblings.  While, as pointed out by the applicant’s agent, there is no audio recording of the Entry Interview, the fact remains that the applicant signed the written record as translated to him some 8 weeks after he arrived in Australia.  If there had been mistakes in the transcription, the Tribunal would have expected him to have taken the opportunity to correct them. 

34. In written submissions made to the Tribunal by the applicant’s agent in March 2014, it is claimed that the applicant was approached in January 2012 by members of Sharbohara who told him that they had been patient with him for years but would now kill him unless he joined them they later came armed to the family home and told the applicant’s father that they would kill the applicant if he chose not to join them.  It is claimed that it was these incidents in January 2012 which prompted him and his father to start making arrangements for him to flee Bangladesh. 

35. However, as discussed with the applicant in accordance with the procedures of s424AA of the Act, he had said in the Entry Interview that he had started making arrangements will travel to Australia “at the end of 2011 and the beginning of 2012.”  In this regard, the Tribunal’s comments above regarding the date on which the applicant confirmed the contents of the Entry Interview are relevant. 

36. Again, the precise timing of any such alleged approach is not, of itself, crucial to the applicant’s claims, but the Tribunal would expect the applicant to have been able to recall with consistency.  However, a s stated in the delegate’s decision record, as provided to the Tribunal by the applicant, when the delegate discussed this point with him, he said that the people who first come with arms to his parents place in December 2011.  At the hearing, the applicant told the Tribunal that he had not kept a precise note of the time when this event took place, and it may have been late December 2011 or early January 2012.

1. While the Tribunal accepts that such a degree of imprecision would be perfectly understandable in statements made years after the alleged events, it notes that the applicant’s written claims to the Department were made approximately a year after the alleged events, and the Entry Interview took place even earlier.  Given the centrality of the alleged approaches of January 2012 to the applicant’s claims, the Tribunal would have expected him to have recalled consistently when they took place.  Nevertheless given that the difference between the “the end of 2011 and the beginning of 2012” on the one hand, early January 2012 on the other is relatively minor, the Tribunal gives the significantly less weight to this contradiction than it does to that mentioned above.  However, it considers that some small weight should be given to this contradiction in the overall context of its other concerns mentioned elsewhere in this decision.

2. There is another minor contradiction in the applicant’s claims about when he went to Dhaka.  In his written statement of claims, the assertion that he went to Dhaka occurs under the heading “2006” whereas he claimed at the hearing that he went to Dhaka in December 2007.  When this was discussed with the applicant at the hearing, his agent pointed out that the way the claims were written could be interpreted as meaning only that the applicant went to Dhaka after 2006 and before 2012.  The Tribunal accepts this and gives no weight to this particular contradiction.

   The applicant’s [brother]

3. In the statutory declaration dated to January 2013 in which the applicant set out his claims for protection, he made no mention of any of his brothers experiencing harm or threats at the hands of the terrorist groups, although he did refer to a cousin who was forced to join a communist group.  However, in his oral evidence to the delegate, he said that [a] brother (identified in these reasons as “M”) had been harassed by the terrorists.  As a result, M had gone to live in Dhaka and had avoided retribution by keeping his location secret.  Even the family did not know where he was. 

4. In written submissions to the Tribunal, the applicant’s agent said that, after M had been in Dhaka for about 8 months, he advised the family that he believed that Sharbohara were following him and that, shortly after, M ceased communicating with the family who now suspect that he has been harmed by Sharbohara.  At the hearing, the applicant told the Tribunal that, after 7 or 8 months in Dhaka, M had told the family that he was being targeted again and that he was going to hide, with the result that the no longer knew where he was.

5. However, as discussed with the applicant at the hearing in accordance with the provisions of s.424A of the Act, in the Entry Interview signed by the applicant [in] August 2012 he provided details of all of his siblings including details of the places in which they were residing.  In particular, he gave the location where he said M was living.  In particular, the record of interview shows that he was specifically asked whether M was deceased or missing and replied in the negative to both questions. 

6. The Tribunal pointed out that this information was relevant because it contradicted his claim that no one in the family knew where M was living.  If he genuinely had not known where M was living and suspected he may have been harmed by the terrorists, the Tribunal would have expected him to have said in the Entry Interview that M was “missing.”  Based upon the information in the entry interview the Tribunal said it may conclude that M was not hiding all living discreetly in Dhaka which in turn might lead it to conclude that M had moved to Dhaka like some of the applicant’s other brothers in order to find employment.

7. When invited to comment on, or respond to, this information and reminded of his right to seek more time in which to do so, the applicant elected to respond immediately.  However, he did not address the question of what he had said in the Entry Interview but simply asserted that the terrorist had targeted 3 people in his family.  The first was a cousin who had been forced to join them in 1996 after the terrorists [inflicted an injury], the second was M and the third was the applicant himself.

8. In connection with his application for protection, the applicant provided details of all members of his family unit.  In particular he gave information about M.  That information clearly indicates that he did not believe him to be dead and that he believed him to be residing in Bangladesh.  While this information is not inconsistent with an assertion that M is “missing” it is consistent with what he said in the Entry Interview.

9. In this regard, the matters raised in the Tribunal’s letter of 2 December 2015 regarding the timing of the Entry Interview are equally relevant.  In the response by the applicant’s agent, he said that the applicant still maintained that M had been missing since around 2005 even though he had said in the Entry Interview that he was currently residing in “[Dhaka].”

10. Given that, in the Entry Interview, the applicant explicitly identified the location in Dhaka in which M was living at the time, and given the applicant’s explicit statement in that interview that M was neither deceased nor missing, the Tribunal rejects his later claim, not made in the initial written statement of claims but first made in the interview with the delegate more than a year after the Entry Interview, that M’s location was unknown because he was avoiding terrorist who had initially targeted him.  Following from this conclusion, the Tribunal does not accept that M was ever targeted by terrorists.  This undermines the credibility of the applicant’s claims that he was subsequently targeted.

    The applicant’s friend

11. Though the applicant’s original statement of claims referred to the recruitment of a cousin, it makes no mention of any friend being killed because he rejected approaches by terrorists as he now claims is the case.  He claims that that death took place in 2005.  At the hearing, the Tribunal asked the applicant why, if this alleged death really happened, he had not made mention of it in his original statement.  He said that he had not mention a number of things in that statement, and in particular said that he had not mentioned the death of his father who had died of a [medical condition] after being harassed by the terrorists.

12. However, when the Tribunal questioned the applicant about his father’s death, he said that his father had died at the age of [age] in August 2014.  In his application for protection, he had said that his father was born in [year] and he confirmed this at the hearing.  Given this, if his father had died in 2014, he would have been [age] or [age] years of age at the time of his death.  As discussed with the applicant at the hearing, the Tribunal does not find it exceptional that a man aged in his [age range] might die of [this medical condition]. 

13. The applicant said that he believed it resulted from the terrorists’ harassment because he had spoken to his father a few days before on the telephone and his father was crying and complained about the terrorists’ adverse attention.  He also said that terrorists then threatened his brothers requiring them to inform them when the applicant returned to Bangladesh.  The Tribunal has considered this but, in the light of other concerns mentioned elsewhere in this decision, the Tribunal is not satisfied that any such threats were made to the applicant’s father or other members of the family around the time of his father’s death.

14. Further, it is not surprising that a death in 2014 would not have been mentioned in his original statement of claims, which was dated in January.  So the failure to mention his father’s death in the original statement of claims is not analogous to the failure to mention the alleged death of a friend in circumstances similar to those in which the applicant claims apply to him. 

15. At the hearing, the applicant’s agent said that the failure to mention this alleged death in the original statement of claims should not be relied upon to damage the applicant’s credibility.  However, if his friend had truly died in the circumstances as claimed, the Tribunal would have expected that death to have been mentioned in the original statement of claims, given the direct relevance to the claims the applicant was making.  The Tribunal finds that this claim was fabricated in order to strengthen his overall claims at the interview with the delegate.

    The lack of any real harm to the applicant over a protracted period

16. The applicant claims that the groups in question first targeted him more than 9 years ago, seeking to recruit him to their ranks and threatening him with harm when he refused these approaches.  However, he has made it clear that he never suffered any physical harm.  When the Tribunal asked why he believed he would face harm now if he were to return to Bangladesh given that he came to no physical harm in before he left the country in 2012, he said that, initially, because M was their main target, he was of less importance.  He said that the group had also killed a friend of his in 2005 after that friend had refused their approaches and had reported them to the police.

17. He said that, initially, the terrorists allowed him some time to make up his mind but the pressure later became more intense like a form of mental torture.  If, as the applicant claims, his cousin had been forced to join a terrorist group in 1996 after being physically harmed, and a friend had been killed after refusing to join the terrorists and reporting their approaches to the police and if his brother, M, had likewise been targeted, the Tribunal finds it difficult to understand why he would continue to reside in his home village while being pressured by them himself.  When this was discussed with the applicant he said that since the terrorists had found M after he had gone to Dhaka to hide those terrorists could find the applicant wherever he went.  However, as noted above, the Tribunal has rejected the applicant’s claim that M was ever targeted.  Given this, and other problems with the applicant’s evidence referred to above, the Tribunal does not accept the applicant’s assertion that he did not leave his home village because the terrorists could find him anywhere. 

18. In all the circumstances, the Tribunal finds that the applicant was not pressured by terrorists (of any kind) to join them.  It consequently finds that the applicant was not threatened with harm for failing to join them and that there is no real chance that he will face harm at the hands of terrorists for such a reason were he to return to Bangladesh in the reasonably foreseeable future.

    The approach of January 2012

19. In the statutory declaration submitted to the Department in early 2013, the applicant said “on one occasion in January 2012, I was approached by 2 of the terrorist groups and they asked me to join them. “  He identified those 2 groups as Sharbohara and Hoque.  In a submission by the applicant’s agent, it is stated that the this incident involved people from Sharbohara only.  The agent said, in a footnote, that the applicant was taken “to have incorrectly referred to the fact” that both Sharbohara and Hoque had approached him.

20. The Tribunal does not accept this explanation.  As discussed with the applicant at the hearing, the statutory declaration in question had obviously been prepared with the assistance of his migration agent’s firm, and was interpreted to the applicant in his own language before he signed it.  In these circumstances, the Tribunal is satisfied that there was no misunderstanding about what he originally had claimed.  When this was discussed with the applicant he confirmed that he had said that both groups approached him on the day in question.  However he said that both groups had been pressuring him but Sharbohara was the more powerful and that, once that group approached him, the Hoque group “became quiet.”

    External evidence

21. The applicant provided a number of news articles about the political situation in the applicant’s home area, but he only provided a translation into English for one of those articles.  At the hearing, the Tribunal said that it assumed this was the article with most relevance to his personal situation and the applicant tacitly acknowledged this.  However, as discussed with him at the hearing, that a translation referred to the arrest of a regional leader of an outlawed organisation called the “Purbo Bangla Biplobi Communist Party.”  The applicant confirmed that the word “Purbo” could also be Anglicised as “Purba” and that the term “Purba Bangla” simply means “East Bengal.”

22. The only connection apparent between the organisation named in the article and Sharbohara, is that both organisations have the term “Purba Bangla” in their name and both are organisations of a communist nature.  The Tribunal said that there are numerous Communist parties in Bangladesh including several that use the term “Purba Bangla” in their title.  The applicant confirmed that this was so.  The Tribunal asked what relevance the article had to his claims that he feared harm from either Sharbohara or the Hoque group.  He said that the group in question was a local group in alliance with the government. 

23. The Tribunal asked why, the group in question was aligned with the government, they were said to be outlawed.  He said that in Bangladesh dosing involved in politics need to do deals with underground parties.  He said the fact that his friend was killed after complaining to police was, in his opinion, an indication that the terrorists found out that he had complained to police that he did not know how they did so.

24. The Tribunal has read the agent’s submissions relating to the activities of political and terrorist groups in Bangladesh and, in particular those of Sharboharah.  However, as discussed with the applicant at the hearing, while it accepts there is considerable level of political violence in Bangladesh it had seen nothing that would satisfy it that Sharbohara or the Hoque group forcibly recruits people to their ranks with threats of violence.  In response to this, the applicant said that, if they did not do this they would have no one in the team.  He said they need to make money so they need to resort to robbery to acquire funds.  He asserted that people would not join such groups if they were not forced to do so.

25. While the Tribunal accepts that such terrorist groups may use violence when conducting robberies and may use violence against their political opponents, there is nothing in the information seen by the Tribunal which would persuade it that such groups use violence to recruit people to their cause.

26. Towards the end of the hearing, when the applicant was asked if there was anything else he wished to say, he said that he had resided in a rural area of Bangladesh and that things which happened there do not get published in papers or on the Internet.  That was why he was unable to obtain corroborating evidence.  He said that such news as is published does not name any particular terrorist group but simply refers to it as “a terrorist group.”  However, as pointed out by the Tribunal at the hearing, he had provided a news article which did name a particular terrorist group.  He said that they only do this when someone is killed.

    Relocation

27. The Tribunal’s letter of 2 December 2015, sent in accordance with the provisions of s.424A of the Act, referred to the fact that, in the Entry Interview, he had been asked what would happen to him if he did not join the groups that he claimed had been pressuring him to join them.  The record states that he answered that, if he did not join them he would have to go to a different area of the country and would have to survive there, and, if he could not get food in that different area, he would be forced to join those groups or commit suicide.  He was also asked whether the groups he feared would do anything to him if he did not join them to which he replied that he stayed in “that area” (that is to say his home area) those groups would “get (him) and shoot (him) or something.”  The Tribunal’s letter pointed out that these answers suggested any problems he had would not exist away from his home area.  If the Tribunal were to rely on this information, it may conclude that he would be able to live safely in Dhaka, as some of his brothers currently do. 

28. In the agent’s response on 16 and December 2015, he said that it would be neither safe nor reasonable for the applicant to relocate to Dhaka because his evidence was that his brother attempted to do that the similar reasons and had been traced there by the groups they feared and subsequently went missing.  The agent also referred to the” the applicant’s recorded answer at page 20 of the entry interview written record” which he said it clearly indicated the applicant’s view that if he were to relocate to another area he would be unable to support himself and to paragraph 4 of his statutory declaration in which his claims were outlined in which he had said that he could not remain in Dhaka because of his low salary. 

29. The record of the Entry Interview is contained in only 19 pages, but the Tribunal infers that the agent was referring to part of the applicant’s response recorded under the heading of question 18 in that record.  In fact, it was to that particular response that the Tribunal drew the applicant’s attention in its letter, as mentioned in paragraph 63 above.  That response did not assert that he would be unable to support himself in another location but spoke about what might happen if he could not do so. 

30. The Tribunal has also considered what the applicant said in paragraph 4 of the statutory declaration to which the agent referred.  In that paragraph, the applicant said that he had gone to Dhaka to work but his salary “was not too good” and he needed to be able to support his family.  He did not claim that he could not earn sufficient money for him to survive in Dhaka.

31. As discussed with the applicant at the hearing, it is application indicates that he is a man with a University degree (Department’s file folio 18).  He has said that he was able to earn money tutoring students in his home village to supplement his other income.  He has not disclosed the nature of the employment he had in Dhaka, and at the hearing, the Tribunal told him it may conclude that it would be reasonable for him to live in Dhaka and, given his level of education, earn sufficient income to survive there.  When this was discussed, the applicant did not address the question of whether he could earn sufficient income in Dhaka, but merely asserted a game that there would be no guarantee he would be safe.

32. Even if the Tribunal were satisfied that the applicant faces harm in his home village (which it is not), and having rejected his claims that his brother was located by terrorists in Dhaka, it is of the view that he could relocate to Dhaka and not face harm in that city.  Given his level of education, the Tribunal is satisfied that he would be able to find work and earn enough money to live on in that city.  The Tribunal finds, therefore, that it would not be unreasonable for him to move to Dhaka if he felt the need to do so.

    The reasons for leaving Bangladesh

33. The Tribunal’s letter of 2 December 2015, sent in accordance with the provisions of s.424A of the Act, referred to the fact that, in the Entry Interview, the applicant mentioned that, apart from his “main problems” arising from alleged threats on harassment by terrorists, he had “financial problems arising from the fact that Bangladesh was a poor country and that he was a member of a large family with limited property.  The letter stated that this information was relevant because it suggested that he had financial problems in Bangladesh and that, if the Tribunal were to reject some or all of his claims about alleged harassment by terrorist groups, it may conclude that his only reason for coming to Australia was to secure a better economic future.  In the agent’s response, he said in essence that the applicant had at all times maintained that his main reasons for leaving the country were his Convention-related claims. 

1. The Tribunal accepts that a person may have mixed reasons for leaving the country and accepts that the applicant has consistently maintained that his main reasons for doing so were his fears of harm at the hands of terrorists groups.  However, as stated in the Tribunal’s letter, in the event of a rejection of his claims regarding alleged threats and harm from terrorists, the only remaining reason for leaving the country evident to the Tribunal is a desire for a better economic future.

   Conclusions

2. The Tribunal has considered all the applicant’s claims but has rejected them, finding that he was not approached by terrorists threatening him with harm in order to recruit him and that he would not face harm on return to Bangladesh because he has not joined a terrorist group.  In addition to the claims that the Tribunal has rejected above, it explicitly makes the following findings, for the sake of completeness:

   ·The death of the applicant’s father of a [medical condition] in 2014 was unrelated to any threats allegedly made against the applicant or his family;

   ·The applicant’s cousin was not forced to join a terrorist group; and

   ·The applicant’s brother, M, was not forced to relocate to Dhaka.  He was not located by terrorists in Dhaka and forced to go into hiding.  He is not “missing.”

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

4. 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).  Given that the Tribunal has rejected all the applicant’s claims about harm feared in Bangladesh, it follows that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm. 

5. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

   DECISION

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

   Bruce MacCarthy
   Member