1414314 (Refugee)

[2015] AATA 3681

1414314 (Refugee) [2015] AATA 3681 (15 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414314

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:R. C. Titterton

DATE:15 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 15 November 2015 at 9:56am

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] June 2013, and the delegate refused to grant the visa [in] August 2014.

3. The applicant appeared before the Tribunal on 20 May 2015 and 24 June 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. His representative [name] attended the Tribunal hearing on 20 May 2015. His representative [Mr A] attended the Tribunal hearing on 24 June 2015.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. 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).

3. 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.

4. 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’).

5. 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.

6. The issue in this case is whether the applicant has a well-founded fear of serious harm amounting to persecution for reasons of a Convention ground, or whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia he will suffer significant harm.

APPLICANT’S EVIDENCE

1. The applicant’s documents included the following.

2. First, the applicant’s irregular maritime arrival entry interview dated [in] March 2013. He states that he left Bangladesh:

   because while I was assisting my father in his shop then I got involved in politics with Jamat. I was a supporter of Jamat. . . . While I was working for my father I went to a mosque in [Village 1], a remote village and I met a lot of Jamat supporters. I was involved with them as long as I have been residing in Bangladesh.  The [supporters] of [Amawi League] were giving us trouble. There was a fight scuffle between these two groups and one of my cousins who was a supporter of [Amawi League] and the decision was taken by [Amawi League] to kill me so that’s why I left.

   What do you mean [Amawi League] were giving you trouble? They weren’t giving me trouble they use to say abusive language. We were told abusive language.

   When did this fight break out? Fighting with sticks. It is not a normal brawl.

   Why were you fighting?  Because they said an abusive word and they wanted to beat us.

   Tell me exactly what happened?  When the decision was taken to kill me that I was informed by my cousin they were going to kill me.

   Why did they take this decision? Because of the fighting between us made some injuries between us.

   When did this fight occur? I cannot remember it happened in 2012 [or] late 2011. . .

   Are these the reasons you left Bangladesh. Yes, this is the reason.

   Why did you leave [Country 2] to go back to Bangladesh the second time? My parents wanted to see me. They hadn’t seen me for a long time I hadn’t seen them a long time.

   Why did you leave Bangladesh the second time? First day when I return back they didn’t take any action to me or the second day. The third day I was attacked by them. [I was attacked by] supporters of [Amawi League] the same people who were involved in the previous incident.

3. Secondly, the applicant’s statement dated [in] May 2013. This very short statement states that the applicant is a citizen of Bangladesh, and was born on [date]. He grew up with his parents and [sibling]. His father had a [business]. He says that when he was about [age], he became interested in the ideology of the Jamaat-e-Islami Party (JI), and first met its members at a mosque in his village, [Village 1]. He joined the party a year later and started attending meetings once or twice a month. The supporters of the Amawi League always gave them trouble. His cousin [Mr B] was a supporter of Awami League and in about June 2012 he told the applicant that Amawi League had plans to kill him. The applicant was very frightened and decided to leave. He travelled to [Country 2] and stayed there for the next six months. In December 2012 he returned to Bangladesh to see his family. He thought the situation may have changed and he would be safe. However, three days later his cousin called him and told him that the Awami League were still planning to kill him. His cousin said that they were on their way to the applicant’s house. The applicant saw 8 to 10 men approaching with long lives and sorts. He left through the back door and fled to Dhaka. From Dhaka he went to [Country 2]. He remained in [Country 2] for about 8 to 10 days, and then travelled to [Country 3] by boat. The boat was intercepted by the Navy and was taken to [Australia] in early March 2013. He fears that, if he returns to Bangladesh, he will be killed by the Awami League members or supporters because he is a supporter of JI. He says that he would not be safe anywhere in Bangladesh.

4. In pars [14] and [15] of his statement he says:

   14.      Around December 2012, I went back to Bangladesh to see my family. I thought the situation may have changed and I would be safe but after about three days later my cousin called me and told me that the Awami League were still planning to kill me. He said that they were on their way to my house and as I was getting ready to leave, I saw about 8-10 men approaching my house. Some of them were carrying long knives and swords.

   15.      I left through the back door and fled to Dhaka and from there I went to Malaysia.

5. Thirdly, the decision of the delegate [in] August 2014, a copy of which was provided by the applicant to the Tribunal. The delegate accepted that the applicant had been a supporter of JI, and that in the applicant’s home town he would have been seen and known as a supporter. However, the delegate did not accept that the applicant had significant involvement in politics in Bangladesh prior to his departure in 2012. The delegate did not accept that the applicant held a sufficient political profile in Bangladesh to be recognised as a JI supporter or member outside of his home village. Given that the applicant did not claim to have engaged in any political activity or activism during his time [in Country 2, Country 3] and Australia, and that any political involvement he had in the past was very limited and occurred a number of years ago, the delegate concluded that the applicant was not particularly politically motivated and that he was able to live his life without engaging in politics or political activism for extended periods. In summary, the delegate was not satisfied that the applicant had a real chance of being persecuted for a refugee convention reason and that therefore his fear of persecution was not well-founded. The delegate also dismissed the claim under the complementary protection criteria.

6. Fourthly, the applicant’s evidence at the first hearing on 20 May 2015. The applicant provided on account of his family background. He attended school to [grade]. He says he can read and write but not very well. He comes from a devout Muslim family. As a child he was interested in sport. When he was [age] he was asked to join JI, and started attending meetings at the local mosque. By the time he was [age] he was attending meetings on a regular basis. He didn’t have to sign anything to become a member; he had no particular or official role. He participated in some processions. On one occasion he was attacked by Amawi League supporters, when he was about [age]. The Tribunal commented that he had never mentioned this before. But the applicant gave some details of the incident, and claims that he suffered bruising as a result. On another occasion, when in the marketplace he was attacked with sticks again. It was about this time that his cousin told him that the Awami League wanted to kill him. He was bruised, and after the second attack his father decided to send him to [Country 2] so he would be safe. This was when he was about [age], that is in about 2005. He remained in [Country 2] for about 6 or 7 years.

7. He told me, contrary to what appears in his earlier statement, that he returned to see his mother in Bangladesh in 2012. He did not go to his village, and remained in Dhaka. He rang his mother, who told him to stay in Dhaka. He did not see her but spoke to her on the telephone. She told him that his cousin [Mr B] said that if the applicant remained he would be killed. He then returned to [Country 2]. The applicant also told me that, when he went to visit his mother, he had already planned to come to Australia.

8. I asked the applicant whether he was safe in [Country 2]. He said that he was, and then told me how his passport and money had been confiscated by the agent who arranged his travel to [Country 2] in the first place. I asked him again to explain why he needed to come to Australia when he was living and working in [Country 2], and had been for 6 or 7 years. He said that. in [Country 2] there was no security in working life, and that without a passport he could be removed at any time.

9. As to returning to Bangladesh, I asked him if he would be safe if he returned to live in Dhaka. He said he would not be safe there because the Awami League were the ruling party, and the police force was linked to it. He said he would not be safe anywhere in Bangladesh.

10. Towards the end of the first hearing I raised with the applicant several concerns I held about what he had told me during the hearing.

11. The first concern was that, in his statement, he stated that he left Bangladesh in 2012, travelled to [Country 2] and stayed there for about 6 months. However, at the hearing he told me that he left Bangladesh when he was about [age], that is in 2005, and remained there for 6 or 7 years. The applicant told me that the second account, that is the account at the hearing, was correct. I asked him why there was such a difference in the two accounts, and why the first version was incorrect. The applicant said “they do not believe me”, meaning, he told me, people from the Department. He said that Immigration “people” did not believe him.

12. During this discussion the applicant’s agent said that she thought she knew the explanation. She said that someone had told the applicant that, if he said that he had been somewhere for 6 or 7 years, then there would be questions about his right to re-enter countries, and that it would complicate his case.

13. The second concern I had was that his statement says that when he went back to Bangladesh his cousin called him and told him that Awami League were still planning to kill him, that they were on their way to his house, and that he saw 8 to 10 people with knives and swords approaching. I said that his statement suggests that he did go home to his village. Yet, at the hearing his evidence was as it appears above, that is he did not return to his village and those events never took place. I asked the applicant to explain the discrepancy. As best I understand, he said that the events did take place, but seven years before, when he fled Bangladesh when he was [age], not when he returned to Bangladesh in 2012.

14. At this point the hearing was adjourned, and I allowed the applicant to provide submissions, and, if thought appropriate, a further statement.

15. Fifthly, a statutory declaration of the applicant dated 22 May 2015, received after the first hearing. This statutory declaration provides further details of the matters set out in his first statement. For instance, the applicant says that, when he was involved with JI, he was beaten up on two occasions. His father then decided he should therefore leave the country. He travelled to [Country 2] by plane. In worked in construction and remained living and working in [Country 2] for 6 or 7 years. He says that after 6½ years on his own, he made his own passport and asked his mother whether he could go to Australia as an asylum seeker by boat. She gave him permission to do so, so long as he returned to Bangladesh to farewell her. On arrival, he made contact with his mother by telephone and asked whether he should return to the village. She told him it was not safe for him to visit. He remained in Dhaka for three days and did not see anyone from his family.

16. He says that paragraph 14 of his statement is incorrect in that he did not return to his village after coming back from [Country 2]. What is described in that paragraph is something that had occurred before he left to go to [Country 2]. He says that:

    the reason I said the incorrect timing of these events was because I was told I would have a lot of trouble in Australia if the immigration knew that I had been living in [Country 2] for 7 years. The events of harm described actually occurred to me but on my return to Bangladesh I did not go back to my village for my fear of the Awami League.

17. Sixthly, the applicant’s evidence at the second hearing on 20 May 2015. The applicant confirmed that the evidence set out in his statutory declaration of 22 May 2015 was the truth. He confirmed that he was attacked on two occasions in Bangladesh. The first occasion was in the marketplace, when he was attacked by Amawi League people. He did not recall when the attack occurred (he did tell me that it was 2006 or 2007, but this would appear to be incorrect, as by this time the applicant was living in [Country 2]). The second attack occurred inside his father’s shop, which was also located in the marketplace. Again he was attacked by Awami League supporters, whose names he provided. On this occasion he and his father were both hit by these men. They also demanded money. It was after this event that the applicant’s father decided that the applicant must leave Bangladesh. He left Bangladesh two days later.

18. I asked the applicant whether what appeared in his statement of 15 May 2013, namely that his cousin [Mr B] told him in June 2012 that members of the Awami League had plans to kill him, was true. His answer was non-responsive; he said that the day his father sent him away, they came to know about the planning.

19. I asked the applicant about his second statement where he states that the account of 8 to 10 men arriving at his house with long knives and swords was incorrect. He said that the incident happened, but before he left for [Country 2]. I asked him why he said in his first statement that this occurred in December 2012. He said “2012 I returned back to Bangladesh”. After some discussion the applicant confirmed that these events took place, but prior to leaving Bangladesh the first time, that is back in about 2005. I then asked the applicant to explain why he put something in his first statement that was not correct or true. He said that, before he went to [Country 2], that incident happened. Given this response I then drew the applicant’s attention to the passage in his second statement where he says what is set out at par [25] above.

20. I told the applicant that I gained the impression that he changed the dates of when certain incidents occurred (that is, the dates as stated in his first statement) to improve his application for protection. The applicant said that it was not to make his case stronger, but he too had a question, and that was that if the dates did not match or tally, how could it be what he said was right or true.

21. I then asked the applicant about his decision to come to Australia after living in [Country 2] for six or seven years. He said that if he decided to come once he got a new passport. He says in his second statement he then spoke to his mother, who said he could go as an asylum seeker to Australia by boat, so long as he returned to Bangladesh to farewell her. He told me he flew from [Country 2] to Dhaka, stayed in Dhaka after three days, flew back to [Country 2] for four or five days, and went to [Country 3] by boat. I asked the applicant whether he had to go through any passport controls on this boat trip. He said he didn’t, as the trip was organised by an agent and, in any event, he had no passport. I then asked how he was able to travel from [Country 2] to Bangladesh to visit his mother if he had no passport. He told me that this passport had been taken by his agent when he returned to [Country 2]. I said I understood that his passport had been confiscated by his agent the first time he went to the [Country 2], along with money. He said no, this happened when he returned in 2012. I then drew his attention to his second statement which explains his experiences when he arrived in [Country 2] when he was [age].

22. The second statement states that, after arriving, he was taken by an agent to a room, where his father had to pay money for him to be released. His statement then says “My passport was taken before being released”. The statement then says that he did not have a passport for about 6½ years, at which point he made his own. I asked the applicant at the hearing how he acquired the new passport. He told me that he went to the Bangladeshi embassy and applied for one. I asked to explain this discrepancy. He said that it meant that he applied for a passport and the Government allowed him to do so. The applicant said, and I accept, that his statement had been written in the wrong way.

1. The applicant explained that when he returned to [Country 2] from Bangladesh, the passport he had recently acquired was only valid for a short period. He gave the passport and money to his agent to enable the term of the passport to be extended. This was when the agent disappeared, along with the applicant’s passport.

2. I asked the applicant why, assuming he was attacked by Awami League supporters on the occasions he described, that is in 2004 of thereabouts, why would he now be attacked if he returned. The applicant was initially unresponsive. He told me at length that, before proceeding to Australia, he spoke to his mother, and asked her what he should do. She told him he would be going on a boat and did not know whether she would see him again. However, he did say that his mother said it would not be safe, that they were asking for money, and if he made the attempt to come to the home village he will be attacked and may be killed. I then asked the applicant why he thought the Awami League are still wanted to attack him. He said that he had problems before, with the same guys that would be the same situation if he returns.

3. I also asked the applicant whether he would continue his political activities if returned Bangaldesh. He told me that he would have to do some sort of Party work, otherwise he would not be able to live. He also said why should go back to a country where he would not be safe?

4. He also told me that, after the Awami League came to power 8 to 10 years ago, supporters ransacked his father’s shop. The shop is now closed and his father stays at home.

5. Seventhly, further submissions provided by the applicant’s agent on 21 July 2015. These submissions provided additional country information and submissions addressing the DFAT Country Report for Bangladesh dated 20 October 2014. In particular, the submissions address par 3.54 of the DFAT report which states:

   There have been occasional allegations since 2008 that high profile BNP and JI members have been victims of enforced disappearances, kidnapping and fabricated criminal charges. Authorities have generally launched investigations into these matters but few indictments have been made.

6. It was submitted in respect of the DFAT Country Report for Bangladesh that “there’s absolutely nothing to dispel concerns over these allegations as it provides no information to substantiate its position. Such a sentence reads like a mere reproduction of information that can be envisaged as being provided by a Bangladeshi government official to their straying counterpart. Without evidence, and given the overall tone of the report is contradictory to the majority of independently substantiated reports in Bangladesh, we submit that little weight should be given to these words. The applicant submits that the DFAT Country Report for Bangladesh contains assertions that are “little more than wishful thinking”. It is submitted that while the Tribunal is required to take the information into account, the Tribunal is not required to accept its accuracy, and urges the Tribunal to give little weight to the report. The Tribunal declines to accept this last submission. It is required to take into account the DFAT Country Report for Bangladesh, and does not accept that its contents is contradictory to the majority of independently substantiated reports in Bangladesh.

7. Lengthy submissions are also made as to the applicant’s credibility. It is submitted that the applicant had been forthcoming in his explanation of the reasons why he gave a different timeline to his claims as places of residence since leaving Bangladesh. It is submitted that explanations given by the applicant are “understandable and reasonable in the context of the cauldron of misinformation that tends to pass between those claiming asylum in jurisdictions of which they have little understanding. [The applicant] has stated he was led to believe that being open about spending an extended period of time in [Country 2] would be detrimental to his claims and he consequently made a misguided decision to hide that information. It is submitted that, while that situation was unfortunate unhelpful, it should not be seen to call into question the overall veracity of his claims for protection”.

8. Reference is also made to various authorities about assessing credibility of vulnerable witnesses and refugees, and specific direction is made to the Tribunal’s document Guidance on the Assessment of Credibility.

9. It is submitted that any inconsistencies or alterations in the applicant’s recounting of his experiences should not be interpreted as indicating that the fundamental basis of his claims are not credible, but rather should be viewed with a sympathetic eye to the stressful and traumatic experiences to which he has been subjected. It is also submitted that, if specific inconsistencies are found, it will be necessary to demonstrate that a person’s claims contain an overall consistency with information commonly known about a country. In this respect, the applicant refers to the UNHCR guidance on credibility in its 1998 Note on burden and standard of proof in refugee claims.

10. In conclusion, the applicant’s agent submits:

    like many people in Bangladesh, [the applicant] is caught in a cycle of violent politics. Evidence is shown that his father and other members of his family have been attacked, detained or tortured. His father’s shop has been ransacked and he is subject to repeated pressure from supporters of the Amawi League. Even if you wish to be politically invisible and non-aligned, the nature of Bangladeshi politics, in which groups of states insist on the political allegiance of ordinary citizens to the side of politics they support, means that the position of neutrality is impossible. Should he returned Bangladesh, [The applicant] will be known as a supporter of Jamaat-e-Islami, and the fact that his support may be at a low level will not result in him escaping from politically motivated persecution at the hands of local thugs in the pay of the Awami league. [The applicant] will not be able to obtain protection from the State and nor will he be able to safely and reasonably relocate to another area of the country.

    We submit that [the applicant] has a well-founded fear of persecution on account of his actual or imputed political opinion and as a result is a protection obligations in Australia

11. Attached to the submissions were a number of articles. These included: a newspaper article, undated, reporting on the arrest of 4557 people in Satkhira over the previous four months; and a lengthy article, a translation of which was not provided.

CONSIDERATION AND FINDINGS

Is the applicant a citizen of Bangladesh?

1. I have not sighted any photocopy of the applicant’s passport. However, I am satisfied that the applicant is a citizen of Bangladesh and that the appropriate country of reference for the assessment of his refugee claims, and the receiving country for the purpose of his complementary protection claims, is Bangladesh.

Does the applicant have the right to enter and reside in any other country?

1. There is nothing in the evidence to suggest that the applicant has a right to enter or reside in any other country other than Bangladesh. Therefore I find that the applicant is not excluded from Australia’s protection by s.36(3) of the Act as I have found that he is a citizen of Bangladesh.

Does the applicant have a well-founded fear of persecution for one or more of the five reasons set out in the Refugees Convention in Bangladesh?

1. Various decisions of the Federal Court of Australia[1] have held that when determining whether a particular applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims made. This may involve an assessment of the credibility of the applicant. When assessing credibility, the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his claims. However, the Tribunal is not required to accept uncritically each and every assertion made by an applicant. Further, the Tribunal need not have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. Nor is it obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality.

   [1] See for instance Randhawa v MILGEA (1994) 52 FCR 437; Selvadurai v MIEA & Anor (1994) 34 ALD 347 and Kopalapillai v MIMA (1998) 86 FCR 547.

2. There are a number of matters which count against the applicant’s credibility. The principal reason is that I have no doubt the applicant intended to mislead the Department in his maritime arrival interview, in his statement [in] May 2013 which formed part of his application and in his interview with the delegate [in]August 2014. In particular, he said in his statement and told the delegate that when he returned to Bangladesh in 2012 his cousin told him that the Awami League were still planning to kill him, that they were on their way to his house, and that he saw 8 to 10 people with knives and swords approaching. This was not true.

3. The second reason why I have formed the view that the applicant intended to mislead the Tribunal is because the applicant told me, and [Mr A] made oral submissions to similar effect, that he had been advised to misstate the length of time he had been in [Country 2] so as not to gain attention from the Department of Immigration. [Mr A] submitted that remaining in [Country 2] would never have provided a permanent solution for the applicant. He submitted that the applicant had been led down the “wrong track”, and the applicant’s real need for protection had not been negated. [Mr A] submitted that any alteration in the dates only related to the period the applicant had spent outside of Bangladesh, and that the fundamental nature of this application was not changed, that these issues did not call into question the fundamental veracity of the issues that caused the applicant to leave Bangladesh in the first place and were still alive now.

4. I am mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 where their Honours stated that at [191] 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. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not for life.

5. However here, in my view, the applicant did not merely “embroider” an account, he has entirely invented an alternative personal history, complete with untrue details about events that occurred, and when they occurred, when he returned to Bangladesh.

6. In circumstances where the applicant intentionally misled the Department in his evidence to the Department and the Tribunal, I am not satisfied that the account the applicant now gives about being a JI member, and having been attacked in Bagladesh, should be believed.

7. I have carefully considered the applicant's evidence. I have serious concerns about his credibility and the veracity of his claims. During the hearing, I found him frequently to be non-responsive in relation to some aspects of his claims and inconsistent and contradictory in relation to other aspects. For the reasons set out above, I found his evidence to be inconsistent and lacking credibility, and his responses to be generalised, unconvincing and superficial.

8. Accordingly, I make the following relevant findings:

   (a)the applicant was born on [date]. He grew up with his parents and [sibling];

   (b)when he was about [age] (1999 or 2000) he became interested in the ideology of JI and first met its members at a mosque in his village, [Village 1];

   (c)he joined JI when he was [age] (2001 or 2002) a year later and started attending meetings once or twice a month; he held no position with JI, and his involvement was limited to attending meetings once or twice a month and attending some processions.

   (d)I do not accept, nor do I find, that he was attacked by supporters of Amawi League on two occasions;  

   (e)I do not accept, or find, that at about this time (in either 2004 or 2005), his cousin [Mr B] called him and told him that the Awami League were still planning to kill him, that they were on their way to the applicant’s house, that the applicant saw 8 to 10 men approaching with long knives and swords and that he left through the back door and fled to Dhaka;

   (f)I do not accept, or find, that following the second attack his father sent him to [Country 2] (in either 2004 or 2005). I do accept, and find, that the applicant travelled to [Country 2] in about 2005 and remained in [Country 2] for 6½ years;

   (g)The applicant returned to Bangladesh on one occasion only, to say goodbye to his mother having decided to come to Australia;

   (h)I do not accept, or find, that his cousin told him in or about June 2012 that Amawi League had plans to kill him. I do not accept this as reasonable to believe as true.

   (i)I accept and find that, if the applicant returns to Bangladesh, he will become involved in JI and undertake similar activities as before, that is attending meetings, and participating in processions.

CONSIDERATION AND FINDINGS

1. The applicant submits that he fears persecution on the Convention ground of political opinion. As noted above, while I accept that the applicant was a member of JI, his involvement was limited to attending meetings and participating in processions. He has had no involvement in JI since he left Bangladesh in 2005.

2. As noted, I asked the applicant why, assuming that he was attacked by Awami League supporters on the occasions he described, that is in 2004 of thereabouts, why would he now be attacked if he returned. The applicant was initially unresponsive. He told me at length that, before proceeding to Australia, he spoke to his mother, and asked her what he should do. She told him he would be going on a boat and did not know whether she would see him again. However, he did say that his mother said it would not be safe, that they were asking for money, and if he made the attempt to come to the home village he will be attacked and may be killed. I then asked the applicant why he thought the Awami League still wanted to attack him. He said that he had problems before, with the same guys and that it would be the same situation if he returns. I do not find this explanation persuasive. As it has been at least 10 years since the applicant lived in Bangladesh I do find it not reasonable to believe the same un-specified Awami League supporters would be intent on harming the applicant after all this time.

3. In any event, the DFAT Country Report relevantly states:

   Opposition Parties – Official Discrimination or Violence

   3.54 There have been occasional allegations since 2008 that high profile BNP and JI members have been victims of enforced disappearances, kidnapping and fabricated criminal charges. Authorities have generally launched investigations into these matters, but few indictments have been made. The number of allegations has reduced in recent years (see ‘Complementary Protection Claims’, below).

   3.55 DFAT assesses 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. Opposition leaders, or members with high profiles face a low risk of being individually targeted for arrest and detention due to engagement in general political activities. Opposition party members engaged in protests face a low risk of being arrested. However, opposition leaders, or members with high profiles, may face a higher risk of arrest when engaged in political protests.

4. I have found that, until 2005, the applicant was a member of JI. I have found that if the applicant returns to Bangladesh he will become involved in JI and undertake similar activities as before, that is, attending meetings, and participating in processions. However, consistent with the DFAT Country Report, I do not accept that the applicant is at risk of being arrested or will live in fear of violence on a day to day basis. The applicant relies on an undated article titled 4557 arrested in Satkhira in 4 months 18 Weapons Seized. It is submitted that that article (which is said to relate to police operations in the applicant’s local neighbourhood) discusses the arrest of 4,557 in the local area, and that “many, if not all” of those arrests were politically motivated “and many of the accusations levelled and charges laid are false charges aimed at discrediting and pressuring those who exercise political views contrary to the ruling party and organs of the State”. It is said that country information below will support this position.

5. The country information referred to includes:

   (a)The US Department of State Report for 2013, Bangladesh Human Rights; this report states that:

   Security forces reportedly committed human rights abuses . . . other human rights abuses included extrajudicial killings, arbitrary detentions, weak judicial capacity and lengthy pre-trial detentions . . . politically motivated violence and pervasive official corruption remained serious problems.

   (b)The International Federation Human Rights report Bangladesh Human Rights Report 2013 (published in April 2014), which states that in calendar year 2-013 there were 27,923 acts of political violence in Bangladesh;

   (c)The Human Rights Watch publication World Report 2014. This report refers to the arrest of two prominent leaders of JI in February 2013. It also refers to Bangladeshi security forces using excessive force and killing at least 150 protesters and injuring some 2,000 in the period between February and October 2013.

   (d)Two academic papers dated 2006[2] and 2007[3] reporting on the localised nature of political organisation in Bangladesh and role played by “mastans”, or organised crime syndicates.

   [2] Liz Philipson, Bangladesh’s Fraying Democracy, Open Democracy, 25 June 2006.

   [3] Joe Devine, Democracy, Governance and Wellbeing, September 2007

6. The applicant submits that the overwhelming body of independent information indicates that politically motivated violence and intimidation is ever present in Bangladesh, and that he is one of its many victims.

7. The Tribunal disagrees. The country information relied on by the applicant all pre-dates the DFAT Country Report.

8. Overall, I find that there is no real chance the applicant will suffer from any harm now or in the future if he is returned to Bangladesh.

9. Overall, I am not satisfied that the applicant, in his particular circumstances, has a well-founded fear of serious harm amounting to persecution for reasons of a Convention ground or for any other reason.

10. I consider that the application has been made to extend the applicant’s stay in Australia. The applicant has made no other claims to fear harm apart from those which I have rejected as set out above.

11. I find that there are not 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 she will suffer significant harm: s36(2)(aa). Accordingly I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(aa). As the applicant does not satisfy the criteria for a protection visa he cannot be granted the visa.

CONCLUDING PARAGRAPHS

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

1. 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 with respect to whom Australia has protection obligations under s.36(2)(aa).

2. 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

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

R. C. Titterton
Member