1317629 (Refugee)

[2016] AATA 3857

1317629 (Refugee) [2016] AATA 3857 (16 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1317629

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Bruce MacCarthy

DATE:16 May 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 16 May 2016 at 11:29am

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Bangladesh, arrived in Australia [in] March 2007.  They applied for the visas [in] February 2011.  The delegate refused to grant the visas [in] May 2011.  

3. The applicant sought review of the delegate’s decision and the Refugee Review Tribunal, differently constituted (“T1”), affirmed the delegate’s decision on 28 February 2012.  That decision was subsequently upheld by the Federal Magistrates Court (as it then was) but that decision was overturned by the Federal Court which, [in] October 2013, set aside the orders of the Federal Magistrates Court, quashed the decision of T1 and and remitted the matter to the refugee Review Tribunal to be determined according to law.  The matter is now before the Tribunal as presently constituted (“the Tribunal”) pursuant to the order of the Court.

4. After the delegate refused the application the applicant’s wife gave birth to a child in Australia.   In a letter dated 23 September 2011, it was pointed out to the applicants that there was no protection visa application by their child; that the delegate’s decision related only to the 2 applicants; and that no review application had been made for or on behalf of the child.  The letter stated that the Tribunal had no jurisdiction to make any decision relating to the child.  The applicants have not taken issue with that assertion.  The Tribunal finds that it has no jurisdiction to make any decision about the applicants’ child

5. The applicants appeared before T1 on 19 June 2011, before the Refugee Review Tribunal (differently constituted and referred to in these reasons as T2) on 29 January 2015, and before the Tribunal on 6 May 2016 to give evidence and present arguments.  The Tribunal also received oral evidence the author of one of two statements submitted immediately prior to the hearing.  The hearings were conducted with the assistance of interpreters in the Bengali and English languages though there were times when the applicant responded directly in English to questions put to him, without waiting for those questions to be translated into Bengali.  The applicants were represented in relation to the review by their registered migration agent.

   RELEVANT LAW

6. 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

7. 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).

8. 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; ...

9. 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.

10. 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.

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

12. 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.

13. 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.

14. 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

15. 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’).

16. ‘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.

17. 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

18. 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.

    Member of the same family unit

19. Subsections 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 r.1.12 of the Regulations to include a spouse of the person.

    Credibility

20. 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.

21. 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

22. In connection with the applications, the applicants have submitted photocopies of pages of their Bangladesh passports.  Given this evidence, and evidence in the Department’s records, the Tribunal finds that the applicants are citizens of Bangladesh.  Accordingly, the Tribunal will assess their claims as against that country.  There is no evidence to suggest that any of the applicants has any right to reside in any country other than Bangladesh.

23. In the present case, only the first named applicant (“the applicant”) has made claims in his own right.  His statement of claims is signed by him alone and that statement makes it clear that the claims relate specifically to him.  His wife, by submitting her application on application form 866D, made it clear that she does not have personal claims for protection but is applying as a member of the applicant’s family unit.

24. The issue in this case is whether the applicant would face harm if he returned to Bangladesh because of his political opinion.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    The applicant’s claims

25. The applicant’s claims were set out in detail in a statutory declaration dated [in] January 2011.  He elaborated on these claims in an interview with the delegate [in] April 2011, conducted with the assistance of a Bengali speaking interpreter.  He has also given oral evidence elaborating on his claims in hearings before T1, T2 and the Tribunal.  In the earlier decision (see RRT file 1105965), T1 summarised the applicant’s written and oral evidence in paragraphs 21 to109 of the decision record. 

26. The Tribunal is satisfied that these paragraphs provide a fair account of the applicant’s claims, with one exception.  In paragraph 80, there is an implication that the applicant had not previously made any claim that a false case had been made against him.  While the applicant did not make any such claim in his written statement of claims, there was a brief reference, in his application form 866C, to a false case having been taken out against him [though he gave no details].  At the third hearing the applicant confirmed to the Tribunal that, apart from the exception just mentioned, he accepted that his claims and evidence had been set out accurately in paragraphs 21 to109 of T1’s decision record.  To ensure that the Tribunal understood his claims correctly, it read out a brief summary of his claims, as follows:

    You became involved in the activities of the Bangladesh Nationalist Party [the BNP] when you were studying your [qualification], and you advanced to positions of authority.  You continued your activities when you went to university and, again, you rose to a position of authority, and you helped campaign for a candidate for Parliament.

    After you completed your [qualification], you intended to undertake a [further qualification], but you were unable to complete that course because of adverse attention by members of the Chatra League, which I understand is the student wing of the Awami League (AL).  On some occasions, people shot at you.

    As a result, you left the University and returned to your home district of [town] and joined the local branch of the BNP.  You soon became an executive member of that branch, which was one of the foremost leadership positions in the area.  On one occasion during a protest, you were arrested and remained in custody for a couple of days during which time you were physically assaulted.  You were later released on bail.

    Because of your work in the 2001 Parliamentary elections, you became a popular member of your party and you were hated by the Awami League.  After the Awami league came to power, a number of leading members of the BNP were arrested.  You were not arrested at this time, but your house was ransacked and this caused you to seek student visa to leave the country.

    You believe that, if you were to return to Bangladesh now, you will be persecuted.  There is a false case pending against you.

27. The applicant confirmed that the Tribunal had presented a fair summary of his claims, saying that “it’s correct.”  He did not seek to change anything or add anything to the summary.

    Supporting documents

28. After the applicant was interviewed by the delegate in April 2011, he submitted, among other documents, 2 letters purported to have been written by officers of the BNP attesting to the applicant’s involvement in the BNP and stating that he had been the subject of a false case instigated by members of AL.  For reasons outlined in paragraphs 53-54 below, the Tribunal gives no weight to these documents. 

29. In June 2011, the applicant provided a number of documents to the Tribunal about the situation in Bangladesh and, in particular about the way the government was mistreating political opponents.  He made it clear that these documents contained background information and that none of the information specifically mentioned him by name or related to him specifically.  At the third hearing, he submitted further background information in the form of a report by Odhikar but he told the Tribunal that this report did not mention him and he had not identified any media articles which referred specifically to him or his situation.

30. He also submitted a statement by a journalist and a statement by a research fellow at [name] University.  Each of these statements referred to the political situation in Bangladesh at the present time and each stated that the applicant was at risk of persecution.  However, the Tribunal notes that, in referring to the applicant, the research fellow used a name which is slightly different from the applicant’s correct name.  The writers of the statements invited the Tribunal to contact them if further information was required.

    Evidence by the journalist

31. The Tribunal phoned the journalist during the hearing.  He had said in his statement that he would expect the government of Bangladesh would review the applicant as a threat.  He had seen the applicant’s “political profile” and was of the opinion that that the applicant would be persecuted if he returned home.  The journalist told the Tribunal that the statement had been dictated by him.  The Tribunal asked how he came to see the applicant’s “political profile.”  He did not answer directly but said he used to visit lots of places in Bangladesh.  The Tribunal pressed the point and asked if this profile was in a document that he had seen.  He said that he had visited the area concerned but, when the Tribunal asked where that area was, he claimed that he was very sleepy and could not answer the question.  He said that he had mentioned everything in his statement.  He suggested that the Tribunal should ring him at some other time, but when asked to nominate a suitable time did not nominate any specific time. 

32. After that call was terminated, the Tribunal commented to the applicant and his agent that he did not find the journalist’s evidence is particularly helpful.  The Tribunal is of the view that the journalist was evasive.  His statement was written only 2 days before the hearing.  Even if the journalist had been sleepy, as he claimed, the Tribunal would have expected him to have been able to explain briefly how and where he had come across the “political profile” he claimed to have seen.  Given the Tribunal’s belief that the journalist was evasive, it decided not to follow-up with a further call.

33. The Tribunal accepts the journalist’s evidence about the general political situation in Bangladesh but is not satisfied that his reference to the applicant’s “political profile” is based knowledge acquired from sources other than the applicant.  In particular, the Tribunal is not satisfied that the journalist travelled to the applicant’s home district and acquired information about the applicant there.  It therefore gives no weight to the journalist’s evidence in relation to the applicant’s personal situation

    Evidence by the research fellow

1. The Tribunal attempted to contact the research fellow during the hearing but, having dialled the number provided, received a recorded message saying the service was not available.  The applicant’s migration agent said that the research fellow was overseas and that perhaps explained why his phone was out of service. 

2. After the hearing, the Tribunal wrote to the research fellow by email, asking him what he knew of the applicant and the circumstances in which he came to know about the applicant and his situation.  The Tribunal asked the research fellow to respond by 11 May 2016.  He has not responded.  The Tribunal accepts the journalist’s evidence about the general political situation in Bangladesh.  However, his statement refers to the applicant [as noted above, by a slightly different name] in only one sentence.  He said that, if the applicant were to return to Bangladesh, “he will face severe persecution” but he did not state the basis upon which he made that assertion.  There is nothing to suggest that the assertion is based upon anything the research fellow knows about the applicant independently of the applicant’s assertions to him.  In these circumstances, the Tribunal gives no weight to the research fellows evidence about the personal situation of the applicant.

   Credibility concerns

   Post-1997 employment

3. In his written evidence and in his oral evidence to the Department, to T1, T2 and the Tribunal, the applicant has claimed that he was heavily involved in political activities on behalf of the BNP, from 1997 (when he left university) until shortly before he left Bangladesh.  He told T1 that, although activities associated with political gatherings or meetings did not involve full-time involvement, he said that for most of the remainder of his time he stayed with senior leaders of the BNP discussing strategy and other party related-matters.  He said that he had no employment outside his political activities other than some [work] for students in his home area which he said took approximately 6 h per week (see T1’s decision record, paragraphs 50-54).  In response to the relevant questions in his application form 866C, the applicant had said that he was unemployed before he came to Australia and that he had no previous employment.

4. However, as T1 discussed with him at the first hearing, and as set out in a letter sent to him on 23 September 2011 in accordance with the provisions of s.424A of the Act, he had earlier provided, in connection with an application for a Student visa, information which contradict this claim.  In that application (see RRT file 1105695, folio 69), he had said that he had worked in the “garments manufacturing” industry between November 1997 and October 2006.  He had given the name and address of the firm for which he had worked at had said that his occupation was that of “[Occupation 1]”  He said, in an attached document that his salary was not high enough, so he decided to go abroad. 

5. When, at the first hearing, T1 asked him to explain the inconsistency between his claims for protection and the information provided in connection with his Student visa application, the applicant then acknowledged that he had worked for the company in question, though he said it was more in the nature of voluntary work.  He said that the employer in question was a business in Dhaka owned by his [relative] and that the money he had disclosed in his Student visa application as salary was more in the way of an allowance to cover travel expenses. (see T1’s decision record, paragraph 90-92).

6. The applicant’s migration agent responded to the Tribunal’s letter of 23 September 2011 stating that the (monthly) salary of (amount) BDT disclosed in the Student visa application was equivalent to approximately (amount) and reiterated that the amount in question was “an allowance” intended to cover travel expenses and that it was certainly not enough for the applicant to live on with his wife.  He said that the applicant had been given a “courtesy title of [Occupation 1]” 

7. While the Tribunal accepts that a salary of (amount) BDT or (amount) is low by Australian standards, it does not consider it to have been low by the standards applicable in Bangladesh at the relevant time.  As discussed with the applicant at the third hearing, country information obtained in April 2016 indicates that in while the average salary and median monthly salary in Bangladesh is somewhat higher than the figure quoted in the applicant’s Student visa application ((amount) as given by the applicant’s agent in the response to the Tribunal’s letter), the relevant figure for people in the fashion and apparel industry, at (amount) BDT is lower (see Salary Survey in Bangladesh/ Salary Comparison downloaded from =18&amp:loctype=1 on 6 April 2016).  Moreover, a report from 2013 indicates that Bangladesh’s official wage board had approved a considerable increase in pay for people in the garment industry.  That report indicated that the minimum wage for entry level garment industry workers rose from 3000 BDT to 5300 BDT.  The figure of 3000 BDT had apparently applied since 2010 (see Bangladesh Approves 77% Pay Rise for Garment Factory Workers, downloaded from on 6 April 2016). 

8. As the Tribunal pointed out to the applicant, given that the figure of 3000 BDT had applied since 2010, the figure in 2007 would have been even lower.  Taking into account the fact that the income the applicant had referred to in his Student visa application was applicable approximately 9 years ago, it was difficult to accept that the sum concerned was nothing more than a travel allowance.  The Tribunal said that, if it were to conclude that he was  employed in the garment industry before he came to Australia, it may not accept that he was an active member of the BNP who spent almost all his time engaged in political activities.  It may conclude that he came to Australia for economic reasons.

9. In response, the applicant reiterated what he had said to T1 at the first hearing.  He said that his parents wanted him to do some kind of work and that’s why he sometimes went to his [relative]’s factory.  He said he did his political work and the work at the factory on a side-by-side basis.  When he travelled to Dhaka for political reasons, he also visited the factory.

10. The Tribunal has considered the applicant’s responses, but does not accept that the applicant was only working at the factory on a nominal basis, being given only a “courtesy title” and a modest travel allowance.  The Tribunal accepts the country information referred to above and finds that the salary given by the applicant in his Student visa application, though low in comparison with Australian salaries and even in comparison with the average in Bangladesh, was relatively high in comparison with salaries applicable in the fashion and apparel industry. 

11. At the hearing, the applicant told the Tribunal that, when he completed his degree, he had contemplated going into [occupation], but had not done so.  The Tribunal notes that in the first of the documents cited in paragraph 38 above, the average salary in the job category of “[occupation]” is currently given as only 15 500 BDT, which is less than the salary quoted by the applicant he was receiving approximately 9 years ago. 

12. In all the circumstances, the Tribunal prefers to accept the evidence provided by the applicant in, and in support of, his application for a Student visa.  That evidence indicates that the applicant had a job in a full-time paid occupation the garment industry throughout the period when he claimed to have been engaged in an almost full-time in politics.  The Tribunal therefore finds that the applicant was employed as a [Occupation 1] in the garment industry from the time he left university until just before he came to Australia.  This undermines the credibility of his claim that he was engaged almost full-time in political activities of one kind or another on behalf of the BNP.

    Are there fabricated criminal charges against the applicant?

13. In answer to question 64 in his application form 866C, in response to a question which asked whether there were any criminal charges are pending against him, he wrote “A FALSE CASE” but, in response to a question which asked for details of any criminal investigation of which he was the subject, and the reason for any investigation, he wrote “N/A.”  In his written statement of claims, he made no mention of any such “false case” or charges.  He only mentioned that, during a “hartal” [which to Tribunal understands to refer to a public protest or strike], he was arrested and detained for 2 days and then released on bail. 

14. At the first hearing, T1 questioned the applicant in some detail about harm or difficulties he had experienced at the hands of AL when he was in Bangladesh.  Although asked what news he had been given by his family since his arrival in Australia that would cause him to fear returning to Bangladesh, the applicant made no mention of the case being taken out against him until, later in the hearing, T1 explicitly asked him about the claims made in the 2 letters mentioned in paragraph 28 above. 

15. At the hearing, the applicant told the Tribunal that the charges in question were instituted in October 2000.  He said they related to possession of arms and throwing bombs at political meetings.  He said that although the charges were instituted in October 2000, he was never interviewed by police or anyone else and only knew about the charges because some leaders of his party told him about the charges.  However, when the government changed and the BNP took power in 2001, there was no longer any problem.  When the Tribunal expressed the view that, when his political party came to power in 2001, it would have been sensible for him to have sought to have the charges dismissed he responded by saying he was not bothered enough to do so.  The Tribunal has considered this response but does not accept it.  If, as he claims, such serious charges were outstanding against him, the Tribunal finds it completely implausible that he would not seek to have them dismissed when he had the opportunity to do so.

16. Moreover, if such charges were in existence and had been for more than 15 years, the Tribunal would have expected the applicant to have more detailed information about them than he provided at the third hearing.  He told the Tribunal that he did not have any documents in his possession which would allow checks to be made as to whether such charges genuinely existed.  For example, he could not identify any court before which charges had been brought, or any relevant court reference number.  In addition, he could not identify the FIR number.  He confirmed the Tribunal’s understanding that, in Bangladesh, when someone makes a an allegation of criminal conduct to police, a record of those allegations has to be set out in a formal “First Information Report.” 

17. The applicant told the Tribunal that he had not asked anyone to investigate the charges because he did not want to place anyone at risk by making inquiries.  The Tribunal has considered this response but does not accept it.  The Tribunal considers it would be a relatively simple matter for someone on his behalf to enquire as to the status of the charges.  In particular, it would be a relatively simple matter for him, or someone acting on his behalf, to engage an impartial party such as a lawyer to make such enquiries.

18. Had the such serious charges existed, the Tribunal would have expected them to have been mentioned explicitly in his written statement of claims.  As the applicant confirmed at the hearing, that statement was prepared in consultation with his migration agent who had told him at the time of the need to include all significant claims in his statement.  When asked to explain why he had made no mention of the claims in the detailed statement you submitted with his application, he said that one could not mention everything in a statement and that it did not seem necessary given that reference had been made in the application form itself.  He said it probably was just “missed out.”  The Tribunal has considered this explanation, but does not accept it.  Had the applicant made a detailed reference to any alleged false charges in the application form, it might argue that he had no need to refer to it in his statement.  However, as noted above, there were no details whatsoever of the alleged “false case.”

19. When asked about the same issue at the first hearing, the applicant gave a different explanation for his failure to mention the false case issue in his written statement.  He told T1 (see paragraph 82 of T1’s decision) that he had not mention the matter any statement because he thought that, if he did, he would not be believed and that he only mentioned the matter after he was specifically asked about at the first hearing.  The Tribunal does not accept this explanation given that he mentioned other incidence of alleged harm in the statement which, equally, may possibly not have been believed.

20. As mentioned in paragraph 28 above, the applicant submitted 2 letters purporting to have been written by BNP officials in which it was stated that claimed that a false case was taken out against the applicant by AL activists.  However, those letters contained no details of any such case.  Moreover, the Tribunal has doubts about the authenticity of the documents in question.  Each document contains a number of errors of spelling and grammar and, in particular, each has an identical error in the spelling of the month of April in the date though they purport to be written by different people on different dates.  As discussed with the applicant at the hearing, this suggests to the Tribunal that the documents were prepared by one of the same person and not by 2 different people. 

21. This undermines the credibility of those documents, particularly given that it is well known that it is relatively easy to obtain fabricated documents in Bangladesh.  The applicant acknowledged the ease with which fraudulent documents may be obtained in his country but said the 2 documents in question were genuine.  The Tribunal has considered this response but gives no weight to the 2 documents, particularly in the light of the matters discussed in paragraphs 45-52 above.

22. For all the reasons discussed in paragraphs 45-54 above, the Tribunal finds that the applicant is not and was not the subject of false charges of any kind and, in particular, charges relating to the possession of arms and the throwing of bombs.

    Searches and destruction of property

23. At the first hearing, the applicant said that, before he left Bangladesh, officials of the caretaker government officials had gone to the home of his father-in-law and the home of his parents to look for him.  He said that the officials destroyed his [sibling]’s [business].  He said that, since he arrived in Australia, officials and AL people have continued to look for him at both his parents place and that of his father-in-law.  However, he did not mention these allegations in his written statement of claims which, as noted above, was prepared in consultation with his migration agent who had advised him of the need to include all significant claims.

24. In his statement, while he referred to persons from the caretaker government ransacking his home, he made no mention of any approaches to his parents or his father-in-law before he left Bangladesh; he made no mention of any destruction of a business owned by his [sibling]; and he made no mention of any ongoing attempt either the government or the AL to find him since then.  At the first hearing, when T1 asked why these things were not mentioned in his written statement, if they had happened, he was unable to give any convincing answer.  He said that the reference to the ransacking of his home should be interpreted as a reference to the destruction of his [sibling]’s business. 

25. The Tribunal does not accept that response.  The alleged ransacking of a home and the alleged destruction of a [business] are clearly two separate events.  He told T1 that the his [sibling’s] [business] was two kilometres from his home.

26. He also said that he did not think he needed to mention, in his statement, visits to his parents’ home and that of his father-in-law because he only wrote in the statement what had happened to him while he was in Bangladesh.  However, this does not explain why he failed to mention visits to his parents’ house and that of his father-in-law while he was still in Bangladesh.  Moreover, given the applicant is claiming that he is still unable to return to Bangladesh, because authorities are still interested in him, one would expect that any evidence which would support such a conclusion would be included in his statement.  The Tribunal infers from his failure to include these matters in his written statement that they are fabrications concocted after the applicant came to Australia in order to bolster his claims for protection.

    Delay in applying for protection

27. The applicant claims that he left Bangladesh and came to Australia to save his life.  He claims that, since arriving here, he has been told by family that people, namely representatives of the government and of AL itself are still looking for him with a view to harming him.  Despite this, the applicant did not seek protection for almost 4 years.

28. At various times, the applicant and his agent have told the Tribunal that he did not seek any advice about taking such a step for a considerable period of time because he held a student visa which permitted him to remain in Australia for a considerable period, and he believed that, if he pursued his studies he would eventually gain the right to reside in Australia permanently.  The Tribunal does not believe that a person who fled his country in fear for his safety would choose to remain in Australia on that sole basis when he would have known there was no guarantee he would gain permanent residence by that means.  Even though the applicant told the Tribunal that he knew other students from Bangladesh who ended up gaining permanent residence, that by no means indicated that he would be certain to achieve permanent residency himself.

29. He may not have known about a protection visa when he first arrived here (as he and his agent have claimed), but the Tribunal does not accept who feared to return to his home country would not seek some official confirmation of his beliefs about the possibility of obtaining permanent residence.

30. Moreover, the Tribunal has looked at the evidence of the applicant’s passport, as submitted at the third hearing.  The evidence in that passport indicates that the applicant’s first visa expired in March 2009.  He was later granted a second visa which also expired in March 2009.  It would have been apparent to the applicant is that visa was approaching its expiry date, that there was a possibility he would not be granted any further substantive visa.  In these circumstances, the Tribunal does not accept that his failure to seek protection until early 2011 can be explained by a belief that he would be able to remain in Australia indefinitely. 

31. The applicant’s agent suggested that that the fact the applicant had not returned to Bangladesh while he had a student visa he never returned to Bangladesh, was an indication that he feared for his life in that country.  However, could be many reasons to explain why he came to Australia with a student visa on why he has not since returned to Bangladesh. 

32. The applicant was in Australia for a period of almost four years before making a protection visa application and he has failed to provide an explanation for such a lengthy delay which satisfies the Tribunal.  The Tribunal regards his failure to take active steps to at least seek advice about the possibility of remaining in Australia indefinitely in the light of his claimed fears advice as an indication that he was not, and is not indicated that the applicant is not genuinely in fear of persecution in Bangladesh.

    Claimed support for BNP candidate

1. The applicant has claimed that he was active in the 2001 Parliamentary elections, in support of his local BNP candidate, [name].  At the hearing, the Tribunal asked the applicant to identify the constituency for which [name] was the candidate in 2001.  He said that it was the area covered by [town] police station.  The Tribunal suggested that while that may be a rough geographic description of the area concerned, it understood that, as in Australia, constituencies had specific names. 

2. He said that, in Bangladesh, attended normally represents one or 2 police station areas when he stands for the elections.  The Tribunal has considered this, but as pointed out to him in accordance with the provisions of s.424AA of the Act, it had information about the constituency for which [name] stood in 2001 which would, subject to any comments you may care to make, be part of the reason for affirming the delegate’s decision.  Specifically, the Tribunal said that it had information  that the constituency in question was known as “[number] ([district])” (see Bangladesh Parliament Election - Detail Results – Amar Desh Online, downloaded from on 6 April 2016).  The Tribunal said that this information was relevant because, if the applicant had actually been actively involved in the campaign in support of [name] in 2001, the Tribunal would have expected him to have been aware of the official name of the constituency.  The Tribunal said that his inability to name the constituency could undermine the his overall credibility and lead it to disbelieve his other claims.

3. When asked 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.  He said it was always his understanding that the constituency simply was known by the 2 police stations he had mentioned.  The Tribunal has considered this but prefers to accept the independent evidence cited in the previous paragraph.  It finds that the applicant did not know the name of the constituency in which he had claimed to campaign actively on behalf of [name], and that this further undermines the credibility of his claims.

   Conclusions

4. The Tribunal accepts that the applicant has some knowledge of politics in Bangladesh, and it accepts that, of the various parties in that country, he favours the BNP.  However, given the concerns mentioned in paragraphs 36 to 68 above, taken as a whole, the Tribunal finds the applicant is not a witness of truth.  The Tribunal is not satisfied that any of his claims about adverse attention by the AL government and AL members are based on the applicant’s real experiences.  In particular, the Tribunal rejects the following claims:

   ·     that the applicant has ever been a member of or carried out activities for the BNP or its student wing, including holding any leadership position, organising and speaking at rallies or meetings, canvassing for members, handing out leaflets or supporting a particular BNP candidate for Parliament;

   ·     that the applicant was ever injured on any occasion at a rally;

   ·     that people from AL attempted to kill him or attack him in any way;

   ·     that he was ever arrested at a “hartal”, detained and physically assaulted before being released on bail;

   ·     that he was forced to abandon a [further qualification] course because of adverse attention;

   ·     that his home was ransacked;

   ·     that officials from the caretaker government or other people from AL went to his parents’ home or to his father-in-law’s home in search of him, whether before he left Bangladesh or after;

   ·     that that officials from the caretaker government or other people from AL ransacked his parents’ home, his father-in-law’s home, or destroyed his [sibling’s] [business].

   ·     That the applicant was ever the subject of false charges relating to the possession of arms or the throwing bombs, or of any other false charges;

   ·     that the applicant’s father, or any other member of his family had been active in the BNP or associated with members of leaders of that party.

5. It follows that the Tribunal does not accept that the applicant left Bangladesh because of any fear of harm, whether at the hands of the caretaker government or at the hands of a L members in general.  The Tribunal finds that the applicant does not currently hold any such fear.

6. When the applicant was interviewed by the delegate, the applicant said he had an “insignificant concern” that, having been away from Bangladesh a long time, he wondered what he would do there on return.  He was concerned about his employment prospects.  The Tribunal has found above that, before he came to Australia, the applicant had employment in a garment manufacturing company in Dhaka.  It is satisfied that that was full time employment.  There is no reason to believe he would not be able to find employment on return to Bangladesh, whether in that industry, or in some other industry where his qualifications in [course] would be an advantage.  The fact that he has been out of the country for some 9 years does not change this.  There is nothing to suggest that he would be denied employment in Bangladesh for any reason at all.

7. Having rejected all the applicant’s claims relating to his political opinion and his absence from Bangladesh, the Tribunal finds that the applicant does not have a well-founded fear of persecution based on any Convention ground.  He therefore does not satisfy the refugee criterion in s.36(2)(a). 

8. 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).  However, having rejected all the claims regarding the reasons the applicant claims to fear harm in Bangladesh, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

9. The applicant's wife applied for a protection visa as someone who did not have a refugee claim of her own and as the member of the same family unit as the applicant. At the first hearing, she told T1 that she did not claims of her own and said that she was afraid to return to Bangladesh in only because of the applicant’s situation arising from his political activities.  The applicant expressed a similar fear for her and his child’s safety because of the harm he may suffer because of his political activities. 

10. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations.  Therefore they do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.  It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    Psychologist’s report

11. At the hearing, the applicant’s migration agent asked the Tribunal to delay its decision to allow time for the applicant to seek a report from a psychologist.  The Tribunal agreed, and the applicant has since provided a copy of a report (dated [in] May 2016 and based upon a consultation on the same day) from a registered psychologist.

12. It is clear, from the terms of the report, that it is almost exclusively based upon the applicant’s personal account to the psychologist of his background and history.  The report refers to a psychometric assessment derived from a “10-item self-report questionnaire” completed by the applicant.  Given that the Tribunal has found above that the applicant is not a witness of truth, the Tribunal does not give any weight to the psychologist’s report as evidence in support of the applicant’s claims about events in Bangladesh. 

    DECISION

13. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Bruce MacCarthy
    

    Member