1410400 (Refugee)

[2015] AATA 3131

1410400 (Refugee) [2015] AATA 3131 (6 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1410400

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Chris Thwaites

DATE:6 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 06 July 2015 at 10:07am

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] February 2013 and the delegate refused to grant the visa [in] May 2014.

3. On 12 June 2014 the applicant applied to the Tribunal for review of that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The Tribunal has before it the Department’s files relating to the applicant’s protection visa applications and the Tribunal’s file relating to the review application. The Tribunal has also had consideration of the written submissions provided by the representative.

5. The applicant’s written reasons for claiming protection in his visa application forms states:

   I am a supporter of the Awami League in Bangladesh. I came to Australia in 2000 to escape from the harm I faced from the Bangladeshi Nationalist Party (BNP). I fear that I will face significant harm because the Awami League party members engage in infighting and target not only the BNP members but also the same party members. In addition, I fear I will face significant harm because I will be considered as a person with wealth in Bangladesh. The Awami League criminal elements and the criminal gangs will abduct me to extort money from me. I fear I will face torture, inhuman, cruel and degrading treatment in Bangladesh. I fear I will not get adequate state protection in Australia. I also fear even if I move to other parts of Bangladesh I will continue to face harm due to my background.

6. The representative provided a written submission to the Department dated 23 April 2014 stating the applicant has a well-founded fear of suffering persecution for convention reasons if he returned to Bangladesh for the cumulative reasons of Political Opinion: Holding and supporting the political ideologies of the Bangladesh Awami League Party. The representative further submits that given the current ongoing human rights problems and political instability in Bangladesh, there is no meaningful option there of the applicant relocating or obtaining effective protection from the Bangladesh authorities. The submission refers to recent country reports in relation to: the volatile political situation; human rights violations and abuses against members of the Awami League; and refers to RRT Country advice reports and previous RRT decisions. The written submission also addresses Bangladesh political history and human rights violations and abuses against Awami League supporters. The submission refers to case law in relation to political opinion and persecution and makes submissions in relation to imputed political opinion stating the applicant is an Awami League political activist involved with the local political activities of the Awami League and does face a real chance of being seriously harmed by agents of the BNP and Jamaat in Bangladesh because of his active political activities and support for the Awami League. The submission also addresses the real chance of persecution, serious harm, well-founded fear, State protection, internal relocation and complementary protection. The submission notes Bangladesh has not criminalised torture in compliance with the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The submission states there is a systemic pattern of torture practiced in Bangladesh and submits the applicant belongs to a vulnerable group of BNP supporters who face the risk of torture from Awami League members and authorities in Bangladesh. The submission also notes Bangladesh has failed to ratify the Optional Protocol 1 to the ICCPR and submits that the applicant should not be sent back to a country which has not ratified that protocol.

7. In conclusion the submission states the applicant’s claims establish the following:

   a.The applicant is a National of Bangladesh.

   b.The applicant is outside his country and in Australia.

   c.The persecutors the applicant fears consider the applicant holds a political opinion against the persecutors due to his actual political opinion and particular social group.

   d.Country information supports the findings that human rights abuses in particular against opposition political supporters and activists continue in Bangladesh.

   e.Country information confirms that Awami League activists face harm from BNP and Jamaat at both the national and local levels.

   f.The applicant reports that his is a supporter of the Awami league.

   g.The applicant further reports that he will continue to support and be involved in political activities in Bangladesh, if he returns to Bangladesh.

   h.Political activists who do not accept the Jamaat and the BNP’s political views face persecution from the authorities.

   i.Thus the applicant holds a political opinion against the ideologies of his persecutors and therefore the applicant faces potentially life threatening harm due to the cumulative reasons of his political opinion and given the current country situation in Bangladesh.

   For the reasons outlined above, we submit the that applicant’s political opinion, and particular social groups are essential and significant reasons for the persecution that would, were our client returned to Bangladesh, involve serious harm amounting to systemic and discriminatory conduct.

8. The applicant appeared before the Tribunal on 22 April 2015 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

9. During the hearing the applicant told the Tribunal he understood the contents of the visa application form that he had signed and did not wish to add or change any of the claims in the form. He noted he now has a wife and a [child] who have applied for permanent residence in Australia under an employer nominated application, and who are not included in the applicant’s protection visa application. The applicant told the Tribunal he fears returning to Bangladesh due to his previous political activity in Bangladesh and the threat from people associated with the BNP as well as the infighting in the Awami League. After discussing this in more detail the applicant told the Tribunal his main reasons for fear of returning to Bangladesh is in relation to money, and that he may be kidnapped, beaten and treated brutally in order to extract money from him and his family. The representative confirmed the applicant had not provided a further statutory declaration, as indicated in their letter to the Department dated 21 February 2013, and clarified that the particular social group referred to in point C of the conclusion of their written submissions, dated 23 April 2014, referred to the group of perceived wealthy person returning to Bangladesh.

10. At the conclusion of the hearing the Tribunal granted the applicant seven days in which to provide any further evidence or submissions in support of the application.

11. On 28 April 2015 the Tribunal received a post hearing submission from the representative submitting the applicant will face a real chance of persecution due to his political opinion and refers to a number of country information articles and reports. The submission submits that:

    Country’s laws and criminal justice delivery system are under serious threat due to the prevalence of judicial killing.

    There is grave concern over the persistence of political violence.

    Criminalisation of politics started after the Awami League reassumed power through the controversial Parliamentary elections on January 5, 2014.

    The United Nations human rights office has expressed concern over the rising levels of political violence rippling across Bangladesh.

    Hundreds of opposition activists, including from the BNP have been rounded up and arrested across the county in recent days.

    Security forces carried out abductions, killings, arbitrary arrests, particularly targeting opposition leaders and supporters.

12. The post hearing submission also attached a copy of a Memorandum of Advice from [Special Counsel] on the operation of s.48A and the decision in SZGIZ v MIAC (2013) 212 FCR 235.

13. On 4 May 2015 the Tribunal received a written submission from the representative submitting the applicant will face a real risk of significant harm or a real chance of persecution due to his political opinion if he returns to Bangladesh due to political chaos in the country. The submission also requests the Tribunal refer the case to the Minister under s.417 should it decide to affirm the decision under review, and makes submission in relation to the Minster’s guidelines.

    FINDINGS AND REASONS

14. The law which the findings below refer to is attached to this statement of decision and reasons.

    Nationality

15. On the basis of the applicant’s consistent information provided to the Department and Tribunal about his place of birth and citizenship of Bangladesh, and the copy of the applicant’s Bangladeshi passport provided to the Department, the Tribunal finds that the applicant is a citizen of Bangladesh. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Bangladesh. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicant is a national of Bangladesh, the Tribunal also finds that Bangladesh is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

    S.48A Bar

16. During the hearing the applicant confirmed he had initially arrived in Australia [in] April 2000 on a student visa and had returned to Bangladesh [in] April 2002 and returned to Australia [in] May 2002. He confirmed he had made his first protection visa application [in] September 2002 and that application had been refused and that decision had been affirmed by the Refugee Review Tribunal (RRT) (differently constituted).

17. The representative confirmed the applicant’s second protection visa application was initially thought to be invalid due to the operation of s.48A, but after the decision in SZGIZ v Minister of Immigration and Citizenship the application was accepted.

18. While the Tribunal acknowledged it had jurisdiction to review the decision in relation to the complementary protection criteria in s.36(2)(aa), it discussed with the applicant and his representative whether the Tribunal had jurisdiction to review the decision in relation to the refugee convention referred to in s.36(2)(a). The representative submitted that the Tribunal had jurisdiction under both the refugee convention criteria and the complementary protection criteria and requested time to provide an advice from special counsel in relation to jurisdiction. At the conclusion of the hearing the Tribunal granted the applicant 7 days in which to provide any further evidence or submissions in support of his application, including the advice from special counsel.

19. The Tribunal has taken into consideration the representative’s cover letter to the Department enclosing the current visa application forms for lodging dated [in] February 2013. The letter addresses the operation of s.48A, and notes the applicant’s previous protection visa application was assessed under the Refugee Convention, and submits the applicant’s claims have never been assessed under the complementary protection criteria. The letter submits s.48A only prevents an application made now if the grounds relied on were available in the past. It submits that s.48A does not prevent an application being made now in reliance on the complementary protection grounds if a prior application was made and finalised before those grounds were available for consideration.

20. The Tribunal has also taken into consideration the submissions made by the representative including the written Memorandum of Advice from [Special Counsel] dated [in] November 2014. The advice notes the Court in SZGIZ reasoned:

    Consistently with the individual operation of each of the criteria by reference to which an "application for a protection visa" is defined in s 48A(2), we see no basis for a construction which prevents a person such as the appellant from making an application based on a criterion which did not form the basis of a previous unsuccessful application for a protection visa by him

21. In summary the advice states that it is clear s.46 does not contemplate an application for a visa being partially valid and partially invalid, nor should the Federal Court’s judgment create such a distinction. Provided a subsequent application raises a previously unconsidered criterion, then the application is fully valid. The advice notes the structure of Part 866 of Schedule 2 to the Regulation requires the applicant to make one of four types of claims at the time of application, and submits that nothing in the language of the regulation suggests that an applicant must rely on only one of the four types of claims. The advice submits that at the time of decision the Minister (hence the Tribunal) must be satisfied that one of the four criteria is satisfied, and while those four criteria reflects the four types of claims in the time of application criteria, there is no restriction on the decision maker limiting their consideration to only those types of claims raised at the time of application. If a person makes an application for a Class XA visa which is not rendered invalid by any provision of the legislation, including s.48A, then the decision maker must decide whether or not they are satisfied of any of the time of decision criteria in Part 866, regardless of the basis on which the application was originally made. Any other approach would be contrary to the objective of the legislation and would represent a failure of jurisdiction for the purposes of s.65 of the Act.

22. The Tribunal does not accept the written submission. The Tribunal notes that s.48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.

23. On the evidence before it the Tribunal finds the applicant made his first protection visa application [in] September 2002 and that application was refused with reference to the Refugee Convention criteria and prior to the commencement of the complementary protection provisions on 24 March 2012.

24. Applying the reasoning in SZGIZ v MIAC (2013) 212 FCR 235, the Tribunal finds that it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that it can only consider the applicant’s claims under the Complementary Protection provisions in s.36(2)(aa) of the Act.

    Credibility

25. While the applicant gave generally consistent oral evidence to that he had previously provided about his family composition, education and political activity while at school, the Tribunal found the applicant’s oral evidence vague when pushed for detail, and inconsistent with some of the information he had previously provided to the Department. The applicant also referred to an assault he had not mentioned previously and changed his oral evidence in response to an issue raised by the Tribunal. The Tribunal finds the applicant is not a witness of truth and it is not satisfied the applicant has told the truth in relation to critical aspects of his claims. The reasons for this finding are discussed in more detail below.

    Claims in relation to the applicant’s previous political activity/ political opinion.

26. During the hearing the applicant told the Tribunal he started his involvement with the Chattra League (the student wing of the Awami League) [at] school and helped recruit students and enrol them as members. He told the Tribunal he decided to stop supporting the Awami League in 1997 or 1998 while he was studying for his [tertiary qualification]. He stopped supporting the Awami League because they asked him to undertake illegal fund raising, collecting money. They pushed him to use his network to collect money from friends and his network, so he left them. Once he left them he was approached by the BNP to join them and use his network to help raise funds from them. They also approached his father for money which stressed him. The applicant decided not to join anyone and mainly avoided them, although the pressure from the Awami League and the BNP continued until he left the country.

27. On questioning about how the pressure was applied to the applicant, he told the Tribunal people from Chattra League detained him in a [shop] one day, and used metal rods to beat him and threaten him to join them to collect money. The applicant told the Tribunal this happened in 1995.

28. The Tribunal noted this incident was not mentioned in his visa application form. In response the applicant told the Tribunal he had mentioned he was threatened and pushed. The Tribunal noted that the visa application form states:

    I am a supporter of the Awami League in Bangladesh. I came to Australia in 2000 to escape from the harm I faced from the Bangladeshi Nationalist Party (BNP). I fear that I will face significant harm because the Awami League party members engage in infighting and target not only the BNP members but also the same party members. In addition, I fear I will face significant harm because I will be considered as a person with wealth in Bangladesh. The Awami League criminal elements and the criminal gangs will abduct me to extort money from me. I fear I will face torture, inhuman, cruel and degrading treatment in Bangladesh. I fear I will not get adequate state protection in Australia. I also fear even if I move to other parts of Bangladesh I will continue to face harm due to my background.

29. In response the applicant told the Tribunal that maybe he did not get to talk about that as maybe it did not arise.

30. In accordance with s.424AA the Tribunal put information to the applicant from the record of his interview with the delegate. The information was that the applicant had not mentioned the incident in 1995 during his interview with the delegate. On request the Tribunal adjourned the hearing for five minutes to enable to the applicant to consult with his representative. On resumption of the hearing the applicant chose to respond and told the Tribunal that it happened a long time ago and it could be his memory.

31. When asked if anything else had happened to him, the applicant told the Tribunal he was put in-between the Awami League and the BNP, as well as in-between elements in the Awami League.

32. When asked if anything else had happened to him while studying his [tertiary qualification] or prior to coming to Australia, the applicant told the Tribunal he cannot recall any significant incident.

33. When asked who was pressuring him, the applicant was unable to name anyone, he told the Tribunal it had been a while and the members of the committee changed all the time. He then told the Tribunal he could remember one person on the BNP Chattra Committee was called [name].

1. The Tribunal is not persuaded by the applicant’s response. The Tribunal notes the applicant’s oral evidence is different from the claims made in the visa application form. The Tribunal notes the applicant told the Tribunal he stopped supporting the Awami League in 1997 or 1998 and avoided them after that. This is different to his written claims that he is a supporter of the Awami League. When questioned about the pressure place on him, the applicant gave an example of being detained and physically assaulted by members of the Chattra League in 1995. The applicant was unable to recall any other incidents prior to leaving Bangladesh.

2. The Tribunal considers the omission of the incident in 1995 in his written claims, and the difference between his oral evidence and written claims, reflects poorly on the applicant’s credibility and the reliability of his evidence.

3. The Tribunal noted this all happened a long time ago and asked the applicant why he thought anything would happen to him now. In response the applicant told the Tribunal the three main reasons why he is still fearing for his life is:

   ·his father still has a house in Dhaka which is quite costly;

   ·the applicant has been in Australia a long time and people who want to do him harm are of the understanding the applicant has a lot of money;

   ·and the applicant has a past that he was actively working on the committee in the past.

4. On questioning the applicant confirmed he came to Australia in 2000 to avoid that harm.

5. The Tribunal noted the applicant had told the Tribunal he had returned to Bangladesh in 2002 for a month. The Tribunal raised its concern in relation to the credibility of the claim that the applicant feared harm in Bangladesh, yet travelled there and stayed for a month in 2002.

6. In response the applicant told the Tribunal his mother was very sick, and he had provided a letter to that effect to his college at that time. He told the Tribunal he stayed at his grandmother’s home, where he met his mother, and then came away. The Tribunal raised its concern that the applicant had earlier told the Tribunal he had stayed at his parents’ home during this visit. In response the applicant told the Tribunal he did stay there, but he did not stay there all the time.

7. The Tribunal raised its concern that the applicant had changed his oral evidence in response to an issue raised by the Tribunal. In response the applicant told the Tribunal he was in his family home and also moving around.

8. The Tribunal is not persuaded by the applicant’s response. The Tribunal finds the applicant returned to Bangladesh in 2002 and stayed at his parents’ home for a month. While the Tribunal accepts the applicant’s mother may have been ill at the time, it also considers the applicant’s return to Bangladesh in 2002, where he stayed at his parents’ home for a month, undermines his claims that he left that country in fear for his safety. The Tribunal is also concerned the applicant changed his oral evidence during the hearing about where he stayed, in order to address an issue raised by the Tribunal. The Tribunal considers this reflects poorly on the applicant’s credibility and on the reliability of his evidence.

9. During the hearing the applicant told the Tribunal that since he arrived in Australia in 2000 he did not mix with any political affiliations. The Tribunal notes that nearly 15 years had passed since the applicant first left Bangladesh, and raised its concern about whether anyone would have any interest in the applicant after such a long period of time. In response the applicant told the Tribunal that politics in Bangladesh is very regional, and the main reason is the money issue, as he has been in Australia for so long they may have the idea he has money and will find out means and ways to extract money; they may kidnap him or take him away, lock him up and beat him up, thinking he has a lot of money. When asked who he feared would do this, the applicant told the Tribunal that although he had supported the Awami League, the infighting had got to the extent, and money is the core reason, he now fears everyone from those political parties. When asked which parties, the applicant told the Tribunal he fears people from the Awami League/Chattra League and the BNP.

10. The Tribunal noted country information indicated the Awami League had been in power in Bangladesh for some time and suggested the Awami League may protect him now. The applicant told the Tribunal they would not support him as he stopped supporting them over the money collection issue and so they would not support him.

11. The Tribunal has taken into consideration the written submissions from the representative and the country information referred to, including The Odhikar Human Rights Report 2012, Human Rights Watch World Report 2013, US Department of State 2012 Country Reports on Human Rights Practices Bangladesh. During the hearing the Tribunal noted the DFAT Country Report Bangladesh (20 October 2014) assessed that supporters or members of political parties in Bangladesh are not at risk of being arrested or living in fear of violence on a day to day basis due to their political affiliations. In response the applicant told the Tribunal about recent incidents in media reports indicating political activists are murdered and drowned by police, and an American political blogger was recently attacked and murdered in front of the police. The Tribunal has also considered the more recent country information reports and articles referred to in the post hearing submission including the Odhikar Human Rights Monitoring Report November 2014, the UN News Service, Bangladesh UN rights office alarmed at deepening political violence, January 2015 and the Human Rights Watch Bangladesh: Crackdown on Opposition January 2015, as well as the numerous other reports and articles referred to, noting most of the reports focus on particular targeting of BNP members and activists. The Tribunal has also taken into account the BBC on line article/obituary of US-Bangladesh writer Avijit Roy dated 27 February 2015 and the NEWAGE and DailyStar articles. 

12. The Tribunal accepts that country information indicates there is violence between supporters and members of rival political parties in Bangladesh. While the Tribunal accepts the applicant may have been an active member as a student in support of the Chattra Legue/Awami League, the Tribunal finds he stopped his political affiliation/membership/ activities in 1997 or 1998.

13. Given the concerns outlined above, the Tribunal does not accept the applicant has told the truth in relation to critical aspects of his claims. The Tribunal does not accept the applicant was detained and beaten in 1995, or that he was under ongoing pressure from the Chattra League/Awami League or the BNP after he stopped his political activity in 1997/1998, or that he was in fear of his safety when he left Bangladesh in 2000. While the Tribunal accepts that Bangladesh politics can be very local, the Tribunal also accepts the applicant returned to his parents’ home for a month in 2002. The Tribunal does not accept the applicant was or is of any adverse interest to anyone in Bangladesh due to his previous political activity, which occurred well over 15 years ago.

14. The Tribunal does not accept the submission that the applicant belongs to a vulnerable group of BNP supporters who face the risk of torture from Awami League members and authorities in Bangladesh.

15. The Tribunal does not accept the applicant is now an Awami League political activist or is perceived to be or imputed to be an Awami League political activist/member or supporter. The Tribunal does not accept the applicant would support and be involved in any political activity in Bangladesh if he returns there, or that he would suffer significant harm from the Chattra League/Awami League or the BNP or the Bangladesh authorities due to any past political activity or opinion or imputed opinion. The Tribunal does not accept the applicant would be perceived to be or imputed to be an Awami League political activist/member or supporter if he returned to Bangladesh, and the Tribunal does not accept there is a real risk he would suffer significant harm if he returned to Bangladesh now or in the reasonably foreseeable future.

16. As noted above, the Tribunal accepts that country information indicates there is violence between supporters and members of rival political parties in Bangladesh. The Tribunal does not accept the post hearing submission received on 4 May 2015 that implies there is political chaos in the country, or that the applicant will face a real risk of significant harm due to his political opinion if he returns to Bangladesh due to political chaos in the country.

    Claims in relation to being perceived as a wealthy person returning to Bangladesh.

17. During the hearing the applicant told the Tribunal the main reason for his fear of returning to Bangladesh was that he had been in Australia for a long time and would be perceived to be wealthy. He told the Tribunal he feared he may be kidnapped, taken away, locked up and beaten in order to get money. When questioned if his family had experienced any problems in relating to their wealth, the applicant told the Tribunal they had not faced any pressure since the applicant had left Bangladesh. He told the Tribunal his father had been pressured prior to the applicant leaving Bangladesh. When asked how this pressure was applied, the applicant told the Tribunal they would be very polite, and asked his father about the applicant, and told him, if your son is not here then you can pay. The applicant told the Tribunal it was BNP supporters who spoke to his father, and on further questioning the applicant told the Tribunal his father did not pay any money. When questioned if anything else had occurred to his family the applicant told the Tribunal not that he could recall. He told the Tribunal his brother has land and a farm but if that pressure had been applied to him the applicant has no knowledge. The applicant told the Tribunal he was in contact with this family in Bangladesh once a week.

18. When questioned why the applicant thinks he would be targeted, the applicant told the Tribunal maybe because he has been away, they know his background and his father’s financial situation, and they know his weakness, that he had been involved in the Awami League in the past. The applicant told the Tribunal his wife and child visited Bangladesh about one year and two months ago and spent about four weeks there, living at her parents’ home. They also visited his parents in their home but did not stay there.

19. The Tribunal raised its concerns about the credibility of the applicant’s claim that he is concerned that people returning to Bangladesh from Australia are perceived as wealthy and therefore at risk of harm, yet he let his wife and young child return there last year. In response the applicant told the Tribunal that maybe people in Bangladesh are not aware his wife was married to him.

20. When asked by the Tribunal who he thinks may perceive him to be wealthy and harm him for that reason, the applicant told the Tribunal it would be the people who knew him from before, people from his past political affiliations. When asked who those people were, the applicant told the Tribunal they were mainly in the opposition BNP and some student’s involvement in the infighting in the Awami League. When asked if he has any contact with these people or knew where they are now, the applicant told the Tribunal they would be able to identify him as they are all very local and have not left his family’s local area.

21. The applicant also told the Tribunal he thinks he will be perceived as being wealthy because of his father’s property, which is large in size, and is being [developed]. His family are being paid three to four Crores for signing the development deal. The applicant told the Tribunal his family will move out of their home into a property owned by the applicant in [location], while their property is developed. The applicant and his brother will receive some [lots] from the development although exact numbers have not been allocated. When asked if his family will move back to the property after the development, the applicant told the Tribunal there will be tension and stress if they return and the applicant returns to the same area, because of his past, but if he does not return they will probably move back to that property. The applicant told the Tribunal he believes people from the BNP would perceive him as wealthy, and for money they can do anything.

22. While the Tribunal noted there was some county information in relation to crime in Bangladesh, it also noted it was unaware of any country information in relation to the targeting of people who were perceived as being wealthy. The Tribunal noted there were wealthy people in Bangladesh, and many people travelled in and out of Bangladesh, coming from wealthy countries. The Tribunal asked the applicant and representative if they were aware of any relevant country information which suggests that people are targeted due to being perceived as wealthy, whether due to their family’s wealth or because they had come from a wealthy country. The representative noted there were no specific references in the written submissions and the applicant told the Tribunal he would submit anything he found after the hearing. The Tribunal notes the post hearing submissions and articles focus on the political violence and killings in Bangladesh.

23. On the evidence before it the Tribunal does not accept there is a real risk the applicant will suffer significant harm because he has been in Australia for a long time and will be perceived as a wealthy person on his return to Bangladesh. The Tribunal notes the applicant returned to Bangladesh from Australia for a month in 2002 and lived in his parent’s home, and has made no claim of any adverse attention over that period. The Tribunal also notes the applicant’s wife and child visited Bangladesh for one month last year and the applicant has not made any claims they experienced any difficulties. The Tribunal also notes the DFAT report makes no mention in its discussion of treatment of returnees that returnees are perceived as wealthy and suffer significant harm because of that.

24. The Tribunal notes the applicant’s oral evidence was also that he will be perceived as wealthy due to the development of his father’s land. The applicant has made no claims that his father or his brother has experienced any difficulties due to this wealth. The Tribunal does not accept the applicant’s previous political activity, which ceased in 1997/1998, raises the risk that he or his family will be harmed because they are perceived to be wealthy.

25. The Tribunal does not accept there is a real risk the applicant will be kidnapped, or taken away, locked up and beaten, in order to get money, if he is returned to Bangladesh.

26. The Tribunal is not satisfied there is a real risk the applicant will suffer significant harm because he is perceived as a wealthy person returning to Bangladesh.

    Conclusion

27. The Tribunal is not satisfied there is a real risk the applicant will suffer significant harm because of his background, his political activity and involvement with the Chattra League/Awami League in the past, because he has been away from Bangladesh in Australia for a long time, because he may be perceived as wealthy, or because of his father’s financial situation, or a combination of those reasons.

28. The Tribunal is not satisfied there is a real risk the applicant will suffer significant harm for any of the reasons he has claimed, if he were returned to Bangladesh now or in the foreseeable future.

29. While the Tribunal has taken into account the written submissions and country information referred to, on the evidence before it the Tribunal does not accept the representative’s written submission that there is a foreseeable, real and personal risk of violence amounting to torture for the applicant if he returns to Bangladesh. The Tribunal does not accept there is a real risk the applicant will suffer significant harm if returned to Bangladesh, or that because Bangladesh has yet to criminalise torture in compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, his risk of significant harm is increased. Nor does the Tribunal accept being returned to a country which has not ratified an Optional Protocol of the ICCPR amounts to significant harm or increases his risk of significant harm.

30. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subject to torture, or cruel or inhuman treatment or punishment; or subject to degrading treatment or punishment, if he is returned to Bangladesh, now or in the foreseeable future. 

31. Accordingly, the Tribunal is not satisfied that there are 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 he will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa) for a protection visa.

32. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations.

33. 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).

34. The Tribunal has considered the representative’s request for the Tribunal to refer this matter to the Minister for consideration under s.417. The Tribunal has decided not to refer the matter and notes the applicant can make that application himself should he wish to pursue it. 

    DECISION

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

    Chris Thwaites
    Member  6 July 2015

    ATTACHMENT - RELEVANT LAW

36. In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:

    ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

    (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

    (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

    (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa; or

    (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa.’

    Complementary protection criterion

37. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above.  The Full Court of the Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention as referred to above (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed). ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A) of the Act: see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.