1413446 (Refugee)

[2016] AATA 3288

1413446 (Refugee) [2016] AATA 3288 (3 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413446

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Linda Symons

DATE:3 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 03 February 2016 at 12:10pm

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, arrived in Australia [in] November 2010 as the holder of a Visitor visa. [In] December 2010, he was granted a Bridging visa in association with his first application for a Protection visa. This visa expired [in] August 2011 and he thereafter remained in Australia as an unlawful non-citizen. He was granted a further Bridging visa [in] September 2011 which expired [in] March 2012. He thereafter remained in Australia as an unlawful non-citizen until [date] March 2012. He was subsequently granted ten further Bridging visas.

3. The applicant first applied to the Department of Immigration and Border Protection (the Department) for a Protection visa [in] December 2010 and the delegate refused to grant the visa [in] March 2011. [In] September 2011, he made an application for review to the Tribunal. [In] July 2011, the Tribunal (differently constituted) affirmed the decision not to grant the applicant a Protection visa. [In] August 2011, he lodged an appeal with the Federal Magistrates Court (as it was then called) and [in] February 2012 the Federal Magistrates Court dismissed his appeal. [In] March 2012, he lodged an appeal with the Full Federal Court and [in] August 2012 the Full Federal Court dismissed his appeal. [In] August 2012, he lodged a request with the Minister of Immigration for Ministerial intervention pursuant to s.417 of the Act. [In] October 2012, his request was also referred for consideration under s.48B of the Act. These requests were both unsuccessful [in] December 2012.

4. The applicant lodged his second application for a Protection visa with the Department [in] February 2013. This application was deemed invalid pursuant to s.48A of the Act and was referred for consideration under s.48B of the Act. [In] February 2013, he lodged an application with the Federal Magistrates Court seeking review of this decision. [In] February 2013, the applicant was informed by the Department that his second application for a Protection visa did not meet the guidelines under s.48B of the Act.

5. The applicant lodged a valid application for a Protection visa [in] August 2013. This application was considered by the Department, pursuant to SZGIZ v MIAC (2013) 212 FCR 235 (SZGIZ) and the delegate refused to grant the visa [in] July 2014. [In] August 2014, the applicant applied to the Tribunal for review of that decision.

6. The Tribunal wrote to the applicant [in] May 2015 and informed him that it had considered the material before it but was unable to make a favourable decision on that information alone. He was invited to appear before the Tribunal (differently constituted) on 24 June 2015 to give evidence and present arguments relating to the issues arising in his case. Unfortunately, the hearing was cancelled as the Member constituting the Tribunal was unable to finish the review before she stopped being a Member. 

7. The applicant appeared before the Tribunal as presently constituted on 27 October 2015 and 2 February 2016 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Bengali and English languages.

8. The issue that arises on review is whether Australia has protection obligations to the applicant under the complementary protection criterion.

   RELEVANT LAW

9. 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

10. 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).

    Complementary protection criterion

11. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she 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 or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

    Section 499 Ministerial Direction

12. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Further application for a Protection visa made before 28 May 2014

13. Section 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 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. The Federal Court in AMA15 v MIBP [2015] FCA 1424 (AMA15) upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of these authorities, the Tribunal has considered the applicant’s claims only in relation to s.36(2)(aa).

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

    First application for a Protection visa lodged [in] December 2010

14. The applicant’s claims in his first application for a Protection visa lodged with the Department [in] December 2010 are summarised as follows:

    ·He was born in Sylhet in Bangladesh on [date]. He attended primary and secondary school between [years]. In 2003 he started working as [Occupation 1] in a local restaurant named [Restaurant 1] at [Bazar 1] in Sylhet and worked there for 4 years. In April 2009, he moved to [Country 1].While working at [Restaurant 1] he was involved in labour union politics associated with Jatiotabadi Shramik Dall (a labour wing of the Bangladesh Nationalist Party (BNP)). He met local elites and influential people when they went to [Restaurant]. In 2007, he was elected as [Official 1] of the Jatiotabadi Shramik Dall at [Bazar 1] Upazila.

    ·His political opponent was [Mr A] who was a leader of the Awami League Shramik League (AL). [Mr A] was envious of his popularity in the area, especially the [Bazar 1], as a labour leader for the BNP. Prior to the 2008 election, [Mr A] told him to quit BNP politics. He did not pay any attention to this and worked for his party especially with 4 party alliance candidates in the 2008 national election. The BNP did not win that election and the AL had a landslide victory.

    ·The AL candidate, [Mr B], won the seat in his constituency. Thereafter, [Mr A] wanted to harm him in various ways. He was scared for his life when the Awami League came to power in December 2008. He was in hiding after the AL came to power and tried to flee from Bangladesh.

    ·In April 2009, he obtained a visa to work as [Occupation 1] in [Country 1]. He obtained a 2 year contract until May 2011 to work as [Occupation 1] for [name]. In August 2010, he visited [Country 2] with his employer and his family. After he returned from [Country 2], his employer wanted to terminate his contract 6 months before it expired. He told his employer about his problems with the AL in Bangladesh and his employer was sympathetic and arranged for an Australian visa [in] October 2010.

    ·[In] October 2010, he returned to Bangladesh as his mother was sick. [Mr A] knew he was in Bangladesh and [in] October 2010 he influenced the Police to insert his name in a robbery which occurred at 11.30pm on [date] October 2010. He escaped from Bangladesh [in] October 2010 (sic) and returned to [Country 1]. He then travelled to Australia [in] November 2010.

    ·The Bangladeshi Police raided his home twice to arrest him after he left Bangladesh. He cannot return to [Country 1] as his contract is no longer valid. If he returns to Bangladesh the Special Police Force will arrest him in connection with the robbery and he will be killed in a cross fire. They have killed hundreds of AL opponents in relation to being terrorists or extortionists.

    ·He is seeking protection from the Australian government to protect his life from the AL and the Special Police Force in Bangladesh.   

15. The applicant provided to the Department a Charge Sheet dated [in] November 2010, a letter dated [in] January 2011 from [Restaurant 1] and a letter dated [in] January 2011 from the Bangladesh Jatiotabadi Sromik Dall. The charge sheet referred to [Crime 1] indicated that the applicant had absconded and an application was being made for the issue of “W/A/P & A”. The letter from [Restaurant 1] indicated that the applicant had worked there as [Occupation 1] from [date] February 2003 to [date] November 2007. The letter from the Bangladesh Jatiotabadi Sromik Dall indicated that the applicant had worked as the [official] of the Bangladesh Jatiotabadi Sromik Dall, [Bazar 1] Upazila Branch, Sylhet from 2003 to 2008.

16. The applicant attended an interview with the Department [in] February 2011. During the interview, he re-iterated and expanded on his written claims. The Department refused to grant the applicant a Protection visa [in] March 2011.

17. The applicant appeared before the Tribunal (differently constituted) on 2 June 2011. During the hearing he re-iterated his previous claims. He also made a new claim that the Police had raided his house on three or four occasions since he left Bangladesh. When asked to be more specific, he claimed that the Police raided his home in November 2010, [date] December 2010 and in April 2011. On 27 July 2011, the Tribunal (differently constituted) affirmed the decision made by the Department.

    Second application for a Protection visa lodged [in] February 2013

18. The applicant’s claims in his second application for a Protection visa lodged with the Department [in] February 2013 are summarised as follows:

    ·He was involved in labour union politics associated with the Jatiobadi Shramik Dall (a labour wing of the BNP) in Bangladesh. He was targeted by particular members of the AL in his constituency when the AL came into power. He fears he will be targeted and face a real risk of harm due to his political opinion.

    ·He fears that because he has been in Australia for a considerable period of time he will be perceived to be a wealthy person. Country information indicates that extortion and human rights abuses targeting wealthy people have significantly increased in Bangladesh with the active and passive support of the present government. He fears he will face significant harm including torture, inhuman, degrading and cruel treatment in Bangladesh.

    ·He fears that even if he moves to another part of Bangladesh he will continue to face harm. He cannot get adequate State protection in Bangladesh because the Police and Judiciary in Bangladesh are ineffective and corrupt.

19. The applicant’s migration agent provided written submissions dated [in] April 2014 to the Department and referred to numerous country information websites.  

20. The applicant attended interviews before the Department [in] April 2014 and [in] June 2014. During the interviews, he made a new claim that after the election in 2008 four or five people with long knives were waiting for him on a street corner and when he saw them he ran away and escaped.

21. The applicant provided the Department with a copy of an article from [newspaper] dated [in] May 2014 and titled ‘[name].’

22. The Department refused to grant the applicant’s second application for a Protection visa [in] July 2014.

23. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated [in] July 2014. He has also filed with the Tribunal copies of the letters from [Restaurant 1] and the Bangladesh Jatiotabadi Sromik Dall previously provided to the Department.

Findings in relation to the Refugees Convention

1. Pursuant to the decision of the Full Court of the Federal Court in SZGIZ and the Federal Court in AMA15, an applicant who had previously applied for and been refused a Protection visa on the basis of one of the criteria was enabled to make a further application for a Protection visa on the basis of one of the other criteria. Thus an applicant who had previously been refused a Protection visa on the basis of the Refugees Convention (s.36(2)(a) of the Act) was able to apply for a Protection visa on the basis of complementary protection (s.36(2)(aa) of the Act).

2. The applicant was previously refused a Protection visa on 4 March 2011 on the basis of the Refugees Convention. [In] February 2013, he lodged a second application for a Protection visa. Applying the reasoning in SZGIZ and AMA15, the Tribunal finds that it does not have the power to consider the applicant's claims under the Refugee Convention criterion in s.36(2)(a) of the Act and has proceeded on the basis that it can only consider his claims under the complementary protection provisions in s.36(2)(aa) of the Act.

   Are there substantial grounds for believing that, as a necessary and foreseeable   consequence of the applicant being removed from Australia, there is a real risk that he will        suffer significant harm

3. The Tribunal finds that the applicant is a citizen of Bangladesh, based on his passport which is before the Tribunal, and will assess his claims on this basis. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.

4. During the first hearing, the applicant gave evidence that his first application for a Protection visa lodged [in] December 2010 was prepared by a Bangladeshi friend. He stated that he provided this person with the information to prepare his visa application and the information he provided was true and correct. When asked whether he was satisfied that his first application for a Protection visa is accurate and complete, he stated that he was not sure and his friend probably made a mistake. He stated that he had a political case in Bangladesh when he returned to Bangladesh in 2010. He stated that his second application for a Protection visa filed [in] February 2013 was prepared by his migration agent, [name]. He stated that the information he provided [name] to prepare the visa application was true and correct and that he was satisfied that his second application for a Protection visa is accurate and complete.

5. The applicant gave evidence to the Tribunal on 27 October 2015 and 2 February 2016 in relation to his claims. The Tribunal discussed with him his background, his family, his political activities in Bangladesh, why he left Bangladesh and why he fears returning to Bangladesh. In considering the applicant’s evidence, the Tribunal formed the view that some aspects of his evidence were vague and lacking in detail and other aspects of his evidence were implausible. He made new claims during the course of the first hearing which the Tribunal did not find to be convincing. There were a number of inconsistencies and contradictions between his written claims and his oral evidence to the Tribunal. These issues raise concerns for the Tribunal in relation to his credibility and the veracity of his claims. The Tribunal’s concerns are referred to below.

6. The Tribunal asked the applicant a number of questions in relation to his association with the BNP. He initially stated that he was a supporter of the BNP and subsequently stated that he became a member of the BNP in 2007. When asked the difference between being a supporter and a member of the BNP, he responded that there is little difference. He stated that he did not have to fill out a form or pay a fee to become a member of the BNP. This is not consistent with the BNP Constitution[1] which requires an application form to be completed and lodged with a fee to become a member of the Party. When asked to describe the organizational structure of his local branch of the BNP, he responded that it changes every year. When asked what the aim objectives and aims of the BNP are, he responded “to develop the country and fight for the nation.” When the Tribunal noted that there are four main objectives and asked him what they are, he responded that he is just a member and cannot tell the Tribunal everything.

   [1] Constitution of the BNP. (>

   The applicant’s lack of knowledge about how to become a member of the BNP and his general lack of knowledge about the BNP raise concerns for the Tribunal as to whether the applicant was a member of the BNP in Bangladesh, was involved in labour union politics associated with the labour wing of the BNP, was elected [Official 1] of the local labour wing of the BNP and, as he claimed during the first hearing, helped his local member and organized the election in his local area. When the Tribunal raised this as an issue with the applicant, he responded that they can check that he was a member of the BNP and what he said was the truth. He stated that if you work for the BNP you are a member. The Tribunal does not accept this explanation.

7. In his first application for a Protection visa lodged [in] December 2010, the applicant claimed that he was elected [Official 1] of the local labour branch of the BNP in 2007. He was interviewed by the Department [in] February 2011 in relation to that application. During that interview, he claimed that he became a member of the BNP in 2003 and [Official 1] in 2007. During his hearing before the Tribunal (differently constituted) on 2 June 2011, he claimed that he became a member and [Official 1] in 2007 or 2008. At the first hearing before this Tribunal, he gave evidence that he became a member of the BNP in 2007. He stated that he was an ordinary member and never held a position in the BNP.

1. When the Tribunal put this information to the applicant, pursuant to s.424AA of the Act, he responded that he forgot that he held a position in the BNP. When asked how he could forget something like that, he responded that he was mentally distressed and mentally sick. There is no evidence before the Tribunal that the applicant is suffering from any mental illness. During the hearings before this Tribunal, he appeared to understand the questions asked of him, responded appropriately and participated meaningfully in the process. The Tribunal is mindful that he may have been nervous at the hearings, anxious about the outcome of his application and that his memory of dates may have faded with the passage of time. However, the Tribunal is not satisfied that this accounts for the inconsistencies in his evidence in relation to whether he was an ordinary member of the BNP or was an office holder in the party.   

2. The applicant has provided to the Department a letter dated [in] January 2011 from the Bangladesh Jatiotabadi Sromik Dall which states that he worked as the [official] of their local branch from 2003 to 2008. This is inconsistent with his evidence to the Tribunal that he joined them in 2007. It is also inconsistent with his evidence to the Tribunal that he was an ordinary member and did not hold any position in the BNP. When the Tribunal raised this as an issue and noted its concerns in relation to the authenticity of this document, the applicant declined to respond.

3. In his first application for a Protection visa, the applicant claimed that shortly prior to the 2008 elections [Mr A], a leader in the AL, warned him to quit BNP politics but he ignored him and continued working for the BNP. He claimed that he was scared for his life when the AL came to power and he made arrangements to leave Bangladesh and go to [Country 1]. He was interviewed by the Department [in] February 2011 in relation to that visa application. During that interview, he claimed that about 2 months prior to the elections in 2008 members of the AL attacked him and other BNP leaders. He claimed that he was able to flee the scene and only had minor injuries. He subsequently stated that he was alone when he was attacked and was not part of a group.

4. During the first hearing before this Tribunal, the applicant gave evidence that after the 2008 election he was attacked by [Mr A] and 4 or 5 of his followers. He claimed that he suffered an injury to his left shoulder, had pain for a long time and still has pain. He claimed that he sought medical treatment, had to have an x-ray and was prescribed medication.

5. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that it would expect that if he was attacked and injured he would have mentioned this in his first application for a Protection visa and this was not something it would expect him to have forgotten. The Tribunal noted that his failure to mention this incident in his first application for a Protection visa raises concerns in relation to the credibility of these claims. The Tribunal also noted that his evidence in relation to when and how the assault took place and the injuries suffered has changed over time and the inconsistencies in his evidence raise further concerns in relation to the credibility of these claims. The applicant responded that he has forgotten and made mistakes. The Tribunal does not accept this explanation.

6. The applicant was interviewed by the Department [in] February 2011 in relation to his first application for a Protection visa.  During that interview, he claimed that after the 2008 election [Mr A] and another person threatened to file a false case against him and he reported this threat to the Police. He made no mention of this in his first or second applications for a Protection visa. He made no mention of this during his hearings before this Tribunal despite the Tribunal asking him a number of questions in relation to what happened before and after the election in 2008. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that it would expect that if a threat was made against him that he took so seriously that he went to the Police and reported it, he would have mentioned this in his first application for a Protection visa and this was not something it would expect him to have forgotten. The Tribunal noted that his failure to mention this incident in his first application for a Protection visa raises concerns in relation to the credibility of these claims. The applicant responded that whatever he claimed is the truth. The Tribunal does not accept this explanation. 

7. In his first application for a Protection visa, the applicant claimed that after the AL victory in the 2008 elections he was scared for his life and went into hiding. He was interviewed by the Department [in] February 2011 in relation to this visa application.  During that interview, he claimed that after the 2008 election he went to Dhaka for 2 weeks in early January 2009 and then went to live with an aunt in Sylhet until he left for [Country 1]. During his hearing before the Tribunal (differently constituted) on 2 June 2011 his claims were different. He claimed that after the 2008 election he received threats from [Mr A] over the telephone and he went to the home of a relative in Sylhet for 2 months. He stated that at the end of the two months he went to Dhaka for the first time around the end of February 2009 or the beginning of March 2009. He stated that he then stayed between Dhaka and Sylhet until he went to [Country 1]. 

8. At the first hearing before this Tribunal, the applicant gave a different version to his previous versions. He stated that one week after the 2008 elections he went to Dhaka and stayed with a friend or in a hotel until shortly before he left for [Country 1]. He stated that he returned home for about 2 or 3 days before he left for [Country 1]. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that the inconsistencies in his evidence raise concerns in relation to the credibility of these claims. The applicant responded that whatever he told the Tribunal is the truth. The Tribunal does not accept this explanation.

9. In both his applications for a Protection visa, the applicant claimed that he lived at the same address in Sylhet, Bangladesh from the time of his birth in [year] until he left Bangladesh in March 2009 to travel to [Country 1]. This is inconsistent with his claims that he was living away from home and was in hiding from shortly after the election in December 2008 until he left Bangladesh in March 2009. When the Tribunal raised this as an issue with the applicant, he responded that the persons who prepared his visa applications made a mistake. When the Tribunal noted his earlier evidence that a friend prepared his first application for a Protection visa based on information he provided and that the information he provided was true and correct, he responded that his friend made a mistake. When the Tribunal noted his earlier evidence that his migration agent prepared his second application for a Protection visa based on information he provided, that the information he provided was true and correct and that he was satisfied that his second application for a Protection visa was accurate and complete, he responded that he has forgotten many things. The Tribunal is mindful that memory may fade with the passage of time. However, the Tribunal is not satisfied that this accounts for the inconsistencies in the applicant’s evidence.

10. In his first application for a Protection visa, the applicant claimed that [in] October 2010 he returned to Bangladesh as his mother was sick. He was interviewed by the Department [in] February 2011 in relation to this visa application. During that interview, he claimed that he returned to Bangladesh [in] October 2010, spent 2 days with his mother and then heard that the Police were coming to his house so he went to his uncle’s house in the same village and spent 2 days there. He stated that he then went to his aunt’s house In Sylhet and stayed there until he left Bangladesh [in] November 2010. At the first hearing before this Tribunal, he gave a different version in relation to what he did. He stated that he stayed with his family for 2 days and then went to Dhaka and stayed there until he left Bangladesh. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that the inconsistencies in his evidence raise concerns in relation to the credibility of these claims. The applicant responded requesting that the Tribunal consider his case.  

11. When asked about any problems he had with the Bangladeshi authorities, the applicant gave evidence to the Tribunal that the Police filed a case against him when he returned to Bangladesh in 2010 and said he was a terrorist. This is a new claim he had not made previously. When asked for details of when the Police accused him of being a terrorist, he responded that because he is a BNP supporter they will probably say he is a terrorist. When asked whether he has ever been charged with being a terrorist, he responded “no”. This raises concerns for the Tribunal that the applicant was fabricating some of his evidence as he was giving it.  

12. During his hearing before the Tribunal (differently constituted) on 2 June 2011, the applicant gave evidence that he returned to Bangladesh [in] October 2010 and the Police went to his house [in] October 2010 between 8pm and 10pm to arrest him under false charges. He has provided the Department with a copy of a Charge Sheet which indicates that the applicant was charged with [Crime 1] at 1.00am on [date] October 2010. Based on the Charge Sheet, the Police went to his home to arrest him prior to [Crime 1] occurring. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that it raised concerns in relation to the credibility of these claims. The applicant responded that the Police can arrest people before they are charged and they were doing it according to their plan. When the Tribunal noted that the Police came to arrest him even before the alleged incident took place and before they received the complaint, he responded that it can happen in Bangladesh.

13. In his first application for a Protection visa, the applicant claimed that the Bangladeshi Police raided his home twice to arrest him after he left Bangladesh in 2010. He claimed that if he returns to Bangladesh the Special Police Force will arrest him in connection with [Crime 1] and he will be killed in a cross fire. The Charge Sheet that the applicant provided the Department indicates that he had absconded. Yet he was able to leave Bangladesh [in] November 2010 without any problems. The Tribunal raised this as an issue with the applicant and noted that this tends to indicate that he was not of adverse interest to the Bangladeshi authorities. He responded that the Bangladeshi authorities did not stop him at the airport because they did not think he would be leaving at such short notice. The Tribunal does not accept this explanation.

14. In his first application for a Protection visa, the applicant claimed that [Mr A] influenced the Police to “insert his name in [Crime 1] that took place at 11.30pm on [date] October 2010.” The Charge Sheet that the applicant provided the Department refers to a First Incident Report dated [in] October 2010. It indicates that a [details of crime]. However, in the body of the document the Police indicate that during their investigation they seized [an item] on [date] October 2010. This is before it was even reported [as a crime]. The Tribunal discussed this with the applicant and raised its concerns in relation to the authenticity of this document. The Tribunal also discussed with him country information which indicates that it is very easy to obtain fraudulent documents in Bangladesh and that the use of fake documents is very prevalent in Bangladesh. The applicant responded that it is “not all the same.” This response does not alleviate the Tribunal’s concerns in relation to the authenticity of the Charge Sheet.

15. The applicant gave evidence that he left Bangladesh in 2009 because he feared for his life and fears returning to Bangladesh because he is at risk of being killed. However, he voluntarily returned to Bangladesh in 2010. The Tribunal raised this as an issue with the applicant and noted that it was inconsistent with his claimed fears. The applicant responded that his mother was sick and he only stayed there for a short time. The Tribunal does not accept this explanation. The applicant remained in Bangladesh from [date] October 2010 to [date] November 2010. The Tribunal is of the view that if the Police went to his home on [date] October 2010 to arrest him, as claimed, he would have left Bangladesh as soon as possible thereafter.   

16. The applicant gave evidence to this Tribunal that he found out about Protection visas at the end of 2008 or the beginning of 2009 when he was living in Bangladesh. He stated that information is freely available in the newspapers as to what countries you can go to to get protection. In his applications for Protection visas, the applicant stated that he travelled to [Country 2] and left in August 2010. He gave evidence to this Tribunal that he travelled to [Country 2] and [Country 3] with his employer when he was working at [Country 1]. The Tribunal raised as an issue with the applicant the fact that he was aware that he was able to seek protection in certain countries, [Country 3] and [Country 2] are signatories to the Refugees Convention and he did not claim asylum when he visited these countries.

17. The applicant responded that he realised that Australia was the best country in which to seek asylum because those countries do not give you permission to work. When asked whether he currently has permission to work, he responded that he does not, is not working and his friend and [sibling] support him. The applicant’s failure to seek protection in [Country 3] and [Country 2] raise further concerns in relation to the credibility of his claims.  

18. In his second application for a Protection visa, the applicant claimed that he fears that because he has been in Australia for a considerable period of time he will be perceived to be a wealthy person and that extortion and human rights abuses targeting wealthy people have significantly increased in Bangladesh with the active and passive support of the present government. The Tribunal discussed these claims with the applicant. When asked why he thought he would be at risk if he returned to Bangladesh because he would be perceived to be a wealthy person as he had lived in Australia, he responded that anyone who returns to Bangladesh from overseas is asked for money by local terrorists.

19. The Tribunal discussed with the applicant country information which indicates that there are over 600,000 Bangladeshis who live and work overseas and go back to Bangladesh. He responded that it is not the same for everyone and 2 foreigners were killed in Sylhet. When the Tribunal noted that he is a Bangladeshi and not a foreigner, he agreed and stated that he owns properties and money. He stated that he owns a house and land. When asked whether this is the house and land owned by his father, he responded that his father divided his assets and this is his share. When asked if each of his [siblings] received a house and land from his father, he responded that not everyone did. He stated that he acquired these assets from the money he obtained in Australia and sent to Bangladesh. When the Tribunal reminded him of his earlier evidence that he had not done much work in Australia, he responded that he did not work or earn much in Australia but what he had he sent to his family in Bangladesh. 

20. The Tribunal discussed with the applicant country information that indicates that certain groups of people like wealthy businessmen and journalists in Bangladesh are targeted for extortion by criminals and corrupt officials. The Tribunal informed him that it was not able to find any country information that indicates that people who have returned from living abroad are particularly targeted for extortion because of their perceived wealth. The Tribunal informed him that, in the absence of relevant country information, it had difficulty accepting his claim that he will be targeted because he has lived in Australia for a long time and will be perceived to be a wealthy person. He responded that not everyone is targeted but he will be targeted by his enemies.

21. The Tribunal discussed with the applicant country information from the Centre for Non Traditional Security Studies which indicates that there are over 600,000 Bangladeshi workers who work abroad and travel back and forth to Bangladesh. The Tribunal informed him that it was not able to find any country information that indicates that this group of people is being targeted by terrorists or criminal gangs for extortion. He responded that the media do not publish lots of things and that it is difficult to get information from villages.

22. The Tribunal has considered the submissions made by the applicant’s migration agent.

23. The Tribunal has had regard to policy guidelines prepared by the Department and country information assessments prepared by DFAT, expressly for protection status determination purposes, to the extent that they are relevant to this review.

    Findings

24. Having considered all the applicant’s claims, the evidence including the country information and the submissions, the Tribunal is of the view that the applicant is not a witness of truth and that he fabricated his material claims for the purpose of obtaining a Protection visa. The Tribunal finds that the applicant is not a credible witness.

25. The Tribunal accepts that the applicant was born in Sylhet in Bangladesh on [date] and that he attended primary and secondary school between [years]. The Tribunal accepts that in 2003 he started working as [Occupation 1] in a local restaurant named [Restaurant 1] at [Bazar 1] in Sylhet and worked there for 4 years. The Tribunal accepts that in April 2009 he went to [Country 1] for the purpose of employment. The Tribunal accepts that he returned to Bangladesh [in] October 2010 for the purpose of visiting his family. The Tribunal does not accept that his mother was ill at that time. The Tribunal accepts that he returned to [Country 1] on [date] November 2010. The Tribunal accepts that he travelled to [Country 2] and [Country 3] with his employer. The Tribunal accepts that he travelled to Australia from [Country 1].

26. The Tribunal does not accept that, while working at [Restaurant 1], the applicant became involved in labour union politics associated with Jatiotabadi Shramik Dall (a labour wing of the BNP) or that he was elected as [Official 1] of that organization. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal does not accept that the applicant was or is a supporter or member of the BNP. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal is not satisfied that the letter dated [in] January 2011 from the Bangladesh Jatiotabadi Sromik Dall provided by the applicant to the Department is an authentic document.

27. The Tribunal does not accept that the applicant was or is of adverse interest to [Mr A], the AL or its supporters or members. It follows that the Tribunal does not accept that he will be targeted by any of them for extortion or any other reason. The Tribunal is not satisfied that there is a real risk that he will suffer significant harm at their hands if he returns to Bangladesh now or in the reasonably foreseeable future.

28. The Tribunal does not accept that the applicant was falsely accused of being involved in [Crime 1] or, alternatively, of being a terrorist, after he returned to Bangladesh [in] October 2010 or that the Police raided his house after he left Bangladesh. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal is not satisfied that the Charge Sheet provided by the applicant to the Department is an authentic document.

1. The Tribunal does not accept that the applicant was or is of adverse interest to the Bangladeshi Police, the Special Police Force or any other Bangladeshi authority. It follows that the Tribunal does not accept that he will be arrested or killed by any Bangladeshi authority upon his return to Bangladesh. The Tribunal is not satisfied that there is a real risk that he will suffer significant harm at the hands of the Bangladeshi authorities if he returns to Bangladesh now or in the reasonably foreseeable future.

2. The Tribunal does not accept that the applicant has inherited a house and fields from his father. Alternatively, the Tribunal does not accept that he has acquired a house or houses and land in Bangladesh from his earnings in Australia. The Tribunal does not accept that, because the applicant has been in Australia for a considerable period of time, he will be perceived to be a wealthy person and targeted for extortion and human rights abuses for this reason or any other reason. The Tribunal is not satisfied that there is a real risk that he will suffer significant harm for this reason if he returns to Bangladesh now or in the reasonably foreseeable future.

3. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.

4. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Bangladesh now or in the reasonably foreseeable future.    

5. 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 that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act. 

   CONCLUSION

6. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

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

   DECISION

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

Linda Symons

         

Member