1413835 (Refugee)

[2015] AATA 3812

1413835 (Refugee) [2015] AATA 3812 (3 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413835

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:David McCulloch

DATE:3 December 2015

PLACE OF DECISION:  Sydney

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

STATEMENT MADE ON 03 DECEMBER 2015 AT 5:19PM

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Bangladesh, applied for the visa [in] July 2013 and the delegate refused to grant the visa [in] August 2014.

3. The applicant appeared before the Tribunal on 11 November 2015 and 16 November 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

4. The applicant was represented in relation to the review by his registered migration agent, who attended the first hearing in person and the second hearing by telephone.

5. At the hearing on 11 November 2015, the applicant provided a medical certificate indicating that he was unwell on that day due to hayfever. Consequently, the Tribunal adjourned the matter to 16 November 2015.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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.

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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. 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’).

10. 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. The Tribunal has had regard to DFAT Country Report – Bangladesh, 20 October 2014.

11. The issue in this case is the credibility of the applicant and whether, on his accepted claims, he fulfills the criteria for protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and claims

12. The applicant arrived in Australia [in] March 2013 as an irregular maritime arrival.  An application for a Protection visa was made [in] July 2013.

13. The applicant’s claims are set out in a Statutory Declaration provided as part of his application for a Protection visa. The Declaration provided as follows:

    My name is [name]. I was born [in] Jessore District, Bangladesh. I am a citizen of Bangladesh.

    In Bangladesh l studied until [grade]. After I completed my studies in [year] I started working in my father's [store].

    I was very happy working with my father and living in my village. Since 2007 I have been in a relationship with [name]. [She] is from my village. She is my girlfriend and we were making plans to get married in the future.

    In 2009 a boy called [Mr A] came to live in our village. His father is an MP for the Awami League. [Mr A] was in love with my girlfriend and he was very aggressive towards me.

    In 2012 [Mr A] and other members of the Awarmi League startd going to the shops in our area, including my father's shop, asking for donations for the Awami League.  I refused to give them money.

    I am not interested or involved with any political party. I do not support the Awami League and did not want to contribute money. Our shop did not make a lot of money and we worked very hard.

    After I refused to give money [Mr A] and the other members of the Awami League threatened to harm us.

    In December 2012, at night, someone knocked on the front door of our house. My brother opened the front door. [Mr A] and about ten or twelve people entered our house. They started attacking my brother. I was also at home, but not in the front room. My mother helped me escape through the back door. I left my village and went to hide in Chittagong. I stayed with [Mr B], my brother's friend.

    When I contacted my family from Chittagong I was told that my father's [shop] had been set on fire. My parents do not know who did it but they suspect that it was the same people who came to our house. My family also told me that my brother was in hospital.

    I  remained in Chittagong and kept in contact with my family and I was informed by them that my brother passed away.

    My parents decided that it was not safe for me to return to our village. l stayed in Chittagong until I left Bangladesh. My brother's friend [Mr B] made all the arrangements for me to leave Bangladesh.

    I came to Australia to seek protection because my life is at risk. I cannot return to my village because I fear [Mr A] and other members of the Awami League.  [Mr A]’s father is an Awami League MP and the Awami League is in power so [Mr A] and other members of the Awami League can do whatever they want in our area.

    My parent's shop is gone, my brother was killed. It is not safe for me to return to our village.

    The Police in our area will not protect me because they are corrupt and protect whoever is in power. I cannot complain or seek protection from [Mr A] or other members of the Awami League. If I complain I will not only not be protected but will be further targeted.

    I cannot relocate or live safely in another part of Bangladesh. Every area in Bangladesh is under the influence or control of a political party.   I do not belong or support any political party so I will be at risk of being targeted like I was in my village.

    Authorities in Bangladesh are corrupt and members of the political party that is in power are allowed to harass and harm other people. Many people in Bangladesh are killed or harmed because of the failure by the police or authorities to stop corruption and human rights abuses by members  of political parties.

14. The applicant’s adviser provided a submission to the Tribunal dated 6 November 2015 in advance of the hearing.  It makes submissions on key facts relied upon. It refers to the applicant’s evidence and interview with the delegate that he was involved in the BNP. It indicates that the applicant concedes that he was only involved in the BNP for a brief period. Nevertheless, a claim is made on the basis of imputed political opinion in opposition to the Awami League and that the applicant will be targeted by supporters of this political party.

15. It is indicated that the applicant was targeted by the Awami League due to his refusal to provide financial support to that party. The applicant maintains that [Mr A] was attracted to his girlfriend at the time, and that may have motivated [Mr A] to harm him.

16. It is indicated that the applicant will be denied state protection because those that would harm him have the support of the government of Bangladesh. It is indicated that the applicant cannot relocate safely in Bangladesh because those from whom he fears persecution have the support of the government. Claims are made that the applicant would suffer harm pursuant to the complementary protection criterion.

17. Reference is made to country information regarding the Awami League.  It is submitted that, in addition to politically motivated criminal violence, impunity associated with political power may support a range of criminal activities. A report is provided concerning organised crime syndicates running ‘protection rackets’ throughout society through a complex system of collection. Reference is made to links between crime and politics. A media report is referred to indicating that a senior official of the Awami League was implicated in murder, making reference to him building an organised crime network. A media report refers to this individual ordering the Rapid Action Battalion to kill on his behalf. It is indicated that Bangladesh ranks 145 out of 175 in a corruption index. It is submitted that this country information supports the applicant’s claims about criminal activities perpetrated by one half of the Awami League.

    Hearing, credibility, findings and assessment

18. In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’.

19. The applicant’s migration agent indicated a desire to provide a written submission following the hearing, which the Tribunal agreed to. However, following the hearing, the migration agent contacted the Tribunal to indicate that no submissions would be forthcoming.

20. The Tribunal has a number of credibility concerns with aspects of the applicant’s claims, which, considered cumulatively, undermine the entirety of the applicant’s substantive claims.

21. First, the applicant has been inconsistent as to whether, and how, he was politically involved in Bangladesh. In the applicant’s Statutory Declaration he said initially that he was not interested or involved in any political party. Later, the Declaration states that the applicant did not belong to or support any political party. In contrast, in the interview with the delegate of the Minister,  the applicant said that he was involved in the BNP. When asked when, he said while in [grade] at school he helped his father in politics. He said he used to go to many BNP meetings. Later in the interview, the applicant said that no other family members were involved politically. In contrast again, in the second Tribunal hearing, the applicant said that he was never a member of any political party. He indicated that after he left school that he would be intimidated into attending meetings of both the Awami League and the BNP.  He indicated no prior political involvement.

22. The Tribunal put this information from the interview with the delegate to the applicant in accordance with the procedural requirements of s.424AA of the Act in terms of its inconsistency with other evidence provided by the applicant concerning his political involvement. The Tribunal noted that the consequence of relying on this information would be to question his claims as to political involvement, and claims that he fears harm based on actual or imputed political opinion, and to question his credibility more generally.

23. In response, the applicant reiterated the evidence that he had given in the Tribunal hearing, namely that he had been forced to attend meetings of the Awami League and the BNP after leaving school.

24. The Tribunal is of the view that the applicant’s evidence on this issue is starkly inconsistent. In the interview with the delegate, the applicant clearly indicated that he had been a member of the BNP and had attended many meetings whilst at school. The submission from the applicant’s adviser, provided before the hearing, confirms the applicant’s claims to have been a member of the BNP, albeit for a short period. These claims are contradicted in the applicant’s Statutory Declaration, and the evidence given in the Tribunal hearing. The applicant’s claim in the hearing that he attended both BNP and Awami League meetings is not consistent with his claims in the interview with delegate.  In the hearing, the applicant indicated that he was forced to attend meetings (not as a member) and this occurred after he had left school, in contrast to the applicant’s claims in the interview that he was a member of the BNP (and thus attended meeting voluntarily) and attended meetings whilst at school. The Tribunal draws adverse inference as to the applicant’s credibility as a result of this inconsistent evidence.

25. Secondly, the applicant has been inconsistent in claims of [Mr A] being a key perpetrator, both in terms of the extortion of money, and the attack on the family home. In the Statutory Declaration, the applicant indicated that [Mr A] was one of a number of the members of the Awami League who were seeking to extort money at the applicant’s father’s shop. That statement also indicates that it was [Mr A], along with 10 to 12 people, who attacked the family home. In contrast, in the Tribunal hearing, the applicant indicated that, whilst he recognised some of the faces, he did not know the names of any of the individuals who extorted money for the shop. Further, in recounting the events of the attack on his home, in the hearing, the applicant indicated that he did not know who the people attacking the family were, or which group they were from. At first, the applicant said that he could not identify them because it was dark. When the Tribunal pointed out that the applicant had indicated that the attack took place in the family home which would suggest the lights were on, the applicant said that they were all wearing masks.

26. There are, therefore, direct inconsistencies as between the written claims and the oral evidence before the Tribunal as to whether [Mr A] was extorting money or was involved in the attack on the home. The Tribunal draws an adverse inference as to the applicant’s credibility as a result of these inconsistencies.

27. Thirdly, the applicant has been inconsistent as to [Mr A]’s political involvement and motivation. When the Tribunal raised with the applicant in the hearing inconsistencies in relation to [Mr A], the applicant firstly said that [Mr A] was not politically involved. When the Tribunal pointed out that this was inconsistent with prior claims, including the claims that [Mr A]’s father was an Awami League MP, the applicant said that, that was correct. The applicant’s written claims clearly indicate that [Mr A] was involved with, and acting on behalf of, the Awami League in relation to the extortion attempts. The Tribunal draws an adverse inference in terms of the applicant’s credibility from his evidence in the first part of the Tribunal hearing that [Mr A] was not politically involved, and the inconsistency with other evidence.

28. Fourthly, there is evidence which suggests that the applicant’s [brother] was alive after the applicant’s arrival in Australia, contrary to the applicant’s claims that he was killed after an incident involving the people that wished to harm the applicant. The Departmental file contains a register of ‘Alive calls for [details]’. It logs phone calls made [in] March 2013 (which is the day of the applicant’s arrival) by arrivals on that boat. There is an entry for boat ID [number] (which from the record of entry interview is the applicant’s ID number).  The log entries show a call made to ‘[variation of brother’s name],’ who is listed as the applicant’s brother. It is to be noted that relevant application forms indicate that the applicant has only one [brother].

29. The Tribunal put to the applicant the information from the phone log in accordance with the procedural requirements of s.424AA of the Act. It noted that the information was relevant because it suggests a phone call made to the applicant’s brother well after the applicant claims that his brother had died. The Tribunal noted that it considered that the reference to [variation of brother’s name] is either a transliteration of the applicant’s brother’s name in English or a slight error in the recording of his brother’s name, but is referencing his only brother, whose name the applicant has indicated is [name]. The consequence of the Tribunal relying on this information is to question the applicant’s credibility about the death of his brother, the circumstances in which the death occurred, and the applicant’s claims more generally.

30. The applicant responded that it was his brother’s friend, [Mr B], who he called, and he would refer to him as ‘brother’.  When the Tribunal asked the applicant how that would explain that the [variation of brother’s name] had been written on the register, the applicant did not provide a response that answered the question.

31. The Tribunal considers that the register clearly establishes that the applicant called his brother on arrival in Australia, who the Tribunal considers is the same brother that the applicant claims had previously been killed. The Tribunal draws significant adverse inference from this information as to the applicant’s credibility concerning the death of his brother, the circumstances surrounding the death, and the applicant’s credibility generally.

32. Fifthly, the applicant has been inconsistent in terms of when he found out about the death of his brother. In the Tribunal hearing, the applicant said that he learnt about the death when he was in Chittagong two to three days after the attack on the family home occurred. In contrast, in the interview with the delegate of the Minister, the applicant said that he found out two to three weeks later. The information from the interview with the delegate of the Minister and its inconsistency with other evidence was put to the applicant in accordance with the procedural requirements of s.424AA of the Act. In response, the applicant maintained that it was two to three days after the event that he learnt his brother’s death.

33. Given what would be extremely impactful events – an attack on the family home and the subsequent death of the applicant’s brother - the Tribunal does not consider that the applicant would be confused, to this extent, in terms of the timeframe in which he learnt of his brother’s death.  The Tribunal draws an adverse inference as to the applicant’s credibility as a result of the inconsistency on this point.

1. Sixthly, the applicant did not recount details of the attack on the family home with a degree of detail or clarity that caused the Tribunal to think that the applicant was talking from actual experience. When asked initially to describe what happened, the applicant made only general references to the family being attacked and the applicant fleeing out the back door. When pressed, little further detail was provided to the Tribunal that caused it to consider that the applicant was recounting events that actually happened.  The vagueness of the account underscores other more specific difficulties with the applicant’s evidence as outlined.

2. These six credibility concerns are numerous and significant, and go to issues at the heart of the applicant’s claims. The credibility concerns are such that the Tribunal is not satisfied as to any substantive aspect of the applicant’s claims.

3. The Tribunal is not satisfied that the applicant and/or his father were extorted for money by either the Awami League or the BNP, or anyone else, as claimed. The Tribunal is not satisfied that the applicant was targeted for harm by [Mr A] as a result of him having interest in the applicant’s girlfriend. The Tribunal is not satisfied that the applicant’s family were attacked at home by a group of individuals from the Awami League or any other organisation, or individuals, or that they attacked the family and injured the applicant’s brother which resulted later in his death. The Tribunal is not satisfied that the applicant fled the scene and went to Chittagong to escape harm as claimed. The Tribunal is not satisfied that the applicant was being looked for or under threat in Chittagong as a result of a group, or individuals, having an adverse interest in the applicant. The Tribunal is not satisfied that the applicant’s father shop was burnt down by the Awami League or anyone else, or that the family have fled their local area as a result of events as claimed, or is being targeted by a group of individuals from their local area or otherwise. The Tribunal is not satisfied that the applicant was forced to attend political events of any political party. The Tribunal is not satisfied that the applicant has been a member of BNP or any other party, or has been, or is, otherwise involved politically. The Tribunal is not satisfied the applicant left Bangladesh in fear for the reasons claimed.

4. Given these findings, the Tribunal is not satisfied that there has been any past harm inflicted on the applicant or his family, threats of harm, extortion requests, or any adverse attention by any political organisation, individuals, or other groups towards the applicant or his family, that creates a real chance of serious harm to the applicant in the reasonably foreseeable future should he return to Bangladesh.  The Tribunal is not satisfied that the applicant has been, or would be, politically involved, or would imputed as having any political belief, such as to create a real chance of serious harm to the applicant. Specifically, the Tribunal is not satisfied that the applicant would be imputed with a political opinion in opposition to the Awami League such that the applicant would be targeted by supporters of that political party for harm.

5. In terms of any claim the applicant may make that he faces corruption generally, the Tribunal accepts that corruption is prevalent in Bangladesh. However, the Tribunal is not satisfied that if the applicant were to return to Bangladesh he would suffer anything other than low-level corruption that permeates life in Bangladesh. The Tribunal is not satisfied that such corruption would constitute serious harm for the purpose of the Refugee Convention criterion.  In any event, the Tribunal does not accept that the applicant or his family have been specifically targeted for corruption based on their political opinion or for any other Convention reason and, that being the case, is not satisfied that there is a Convention nexus in terms of corruption the applicant may face on return.

6. The Tribunal is not otherwise satisfied that the applicant has a background or profile which would subject him to a real chance of serious harm for a Convention reason on any other basis.

7. That being the case, the Tribunal is not satisfied that the applicant has a well-founded fear of being persecuted for a Convention reason for any of the reasons claimed, or for any other reason.

8. In terms of the complementary protection criterion, the Tribunal repeats its findings and is not satisfied that the applicant faces a real risk of significant harm for any of the reasons claimed including: physical harm, threats, or extortion from political or other groups or individuals towards the applicant or his family, or based on past political involvement, or for any other reason.

9. The Tribunal accepts that corruption is prevalent in Bangladesh, but the Tribunal is not satisfied that the applicant, on return to Bangladesh, would face anything other than low level corruption that permeates life in Bangladesh. The Tribunal is not satisfied that such corruption would constitute significant harm for the purpose of the complementary protection criterion.

10. The Tribunal is not satisfied that the applicant faces a real risk of significant harm for any other reason.

11. That being the case, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm for any of the reasons claimed, or for any other reason.

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

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

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

    DECISION

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

    David McCulloch
    Member