1415010 (Refugee)

[2016] AATA 3115

1415010 (Refugee) [2016] AATA 3115 (14 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415010

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Chris Thwaites

DATE:14 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 14 January 2016 at 10:00am

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)[1].

   [1] The relevant law is attached to this Statement of Decision and Reasons.

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. [In] September 2014 the applicant applied to the Tribunal for review of that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The Tribunal has before it the Department’s file relating to the applicant’s protection visa application and the Tribunal’s file relating to the review application. The Tribunal has also considered the delegate’s decision record provided to the Tribunal by the applicant.

5. The applicant’s written reasons for claiming protection are contained in a statutory declaration dated [in] May 2013, provided to the Department as an attachment to the visa application forms. In summary, the applicant declares that he is a citizen of Bangladesh and was born on [date] in [name] village. The applicant declares that he fears returning to Bangladesh. He left Bangladesh because of his imputed political opinion. His father was an active supporter of the Bangladesh Jamaat-e-Islami (BJI). His brothers were also politically active and were supporters of the Bangladesh Nationalist Party (BNP). The current ruling party, the Bangladesh Awami League Party (ALP), did not like the applicant and his family members supporting other parties, so they tried to stop them from supporting other parties. One day ALP members came to the applicant’s home and asked for their support. The applicant’s brothers refused to support them. The ALP members then asked the applicant for support. The applicant refused to support them because he was not interested in politics. He preferred to work on his farm and his business. He told them he was not interested and told them to go away. The ALP supporters did not like it, they threatened him with consequences, but the applicant did not take them seriously. A few days later he left for Dhaka to sell his [goods]. When he returned he noticed people had gathered around his land. He immediately went to see what was happening. He then noticed that his wife had been killed. He does not remember what happened next as he collapsed with grief and was unconscious. Later when he asked what happened to his wife, he was told that she had been raped and had been suffocated to death. The applicant knows that people from the ALP were responsible for this. His mother had witnessed the incident and she told him about it. His mother told him that when he left for Dhaka, the ALP people came looking for him. She told them that he was not at home and that he’d gone to Dhaka. The men then left and returned that night. They knocked on the door and took his wife away. His mother is old and by the time she came to help the men had taken his wife away. The applicant believes that they killed his wife to send him a message. The ALP people did not stop there; they came looking for the applicant after this. He was scared for his life, and that he would be next. He decided to hide at his brother-in-law’s home for safety. The applicant’s brother-in-law would visit him and tell him that the ALP people were looking for him. He decided that he could no longer remain in Bangladesh and his brother-in-law told him it was better to leave the country. So he took the advice and his brother-in-law assisted by making the arrangements for him to leave.

6. The applicant declares that he believes that if he returns to Bangladesh he would face a real chance of being persecuted for not complying with the ALP peoples’ wishes. He believes that he will also be killed. The ALP is currently in power and are powerful and they are able to do anything they want without consequences. The applicant fears that he will be detained by the ALP people, tortured and killed for not joining them. This was the reason he left Bangladesh.

7. The applicant declares that he was asked to join the ALP by men supporting the group. He refused and was threatened. He did not take the threats seriously and when he was away the ALP came looking for him, and instead they found his wife alone and abducted, raped and murdered her. He fears the same will happen to him. The applicant declares that they are looking for him to do the same. The applicant believes that if he returns to Bangladesh he will be at risk of facing serious harm by the ruling party that is in power. The ALP party is a very strong party and supporters are acting with impunity. The applicant believes that he will be harmed by them if returned to Bangladesh. The applicant believes that he will be harmed by the supporters of the ALP. He fears that there is no one who can help him find protection, and he fears for his life. The ALP is the ruling party in Bangladesh at the moment and the supporters act with impunity.

8. The applicant declares that the authorities in Bangladesh cannot and will not protect him. This is because the authorities work for the ALP. The ALP rules Bangladesh at the moment and their supporters act without any consequences. The applicant declares that he cannot relocate to any other part of Bangladesh because the ALP is everywhere. They will be able to find him and kill him. Otherwise he would have relocated somewhere else in Bangladesh. He believes that they will be able to find him and kill him anywhere he goes in Bangladesh.

9. The delegate’s decision record indicates that the applicant was interviewed by the delegate [in] August 2014. The delegate discussed the applicant’s claims with the applicant, and during that interview the applicant told the delegate that since his departure from Bangladesh his [sibling] had been abducted by a group of ALP supporters, and has been missing since.

10. [In] August 2014 the delegate refused to grant the applicant a protection visa because, given the lack of credible details, the vague and inconsistent account presented by the applicant in relation to the incidents he claimed had happened to him, especially about him and his family being targeted by a group of criminals with high-profile political links, the delegate found the applicant had not been truthful about the circumstances of his situation. His failure to provide plausible details of the incidents which form the basis of his core claims of protection and his ambiguous responses did not satisfy the delegate that his claims were credible. The delegate noted the number and nature of the discrepancies were significant to the material elements of the applicant’s claims. The delegate was not satisfied the discrepancies could be explained as simple errors in recollection over time, additional details or error in interpreting. The delegate believed that the applicant had fabricated significant parts of his material claims with the sole purpose of enhancing his claims for protection. Therefore the delegate found the applicant was not targeted by anyone in his country in the past, or will be in the foreseeable future, for the claimed reasons. The delegate dismissed the applicant’s material claims in their entirety. The delegate was not satisfied the applicant would face a real chance of persecution if he returned to Bangladesh, therefore was not satisfied the applicant’s fear was well founded. The delegate was not satisfied Australia had protection obligations to the applicant under the Refugees Convention, and as a result the applicant did not meet the criteria for the grant of a Protection visa under s.36(2)(a). The delegate was also not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there was a real risk that the applicant would be subject to significant harm. Therefore the delegate was not satisfied Australia had protection obligations to the applicant under s.36(2)(aa). Therefore the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s.36 of the Act.

11. As noted above the applicant applied to the Tribunal for review of that decision [in] September 2014.

12. The applicant appeared before the Tribunal on 11 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.

13. At the hearing the applicant submitted copies of a number of documents on Dhaka Translation letterhead with the heading Translated Copy. The applicant told the Tribunal that he had obtained the documents from his brother-in-law in Bangladesh. The applicant told the Tribunal that he had told his brother-in-law that Australia might send him back to Bangladesh and therefore his brother-in-law had sent him the documents. He told the Tribunal the documents were translated into English in Bangladesh and that he did not have the originals. The applicant told the Tribunal he could not read the documents and did not know what they were, but thought they may be medical records. He also told the Tribunal the documents were from [date] January, after the incident, and that people in the police office gave his brother-in-law the documents even though they did not wish to take the case.

14. The first document is addressed to the [officer] PS: [location], and has a heading Subject: [deleted]. The document appears to be a statement of complaint by the victim’s father, dated [in] January 2012.

15. The second document has the heading Order, and is dated [in] February 2012, and states today is fixed date for submitting the investigation report of the investigating sub Inspector. Investigation report is not found.

16. The third document has a heading Order sheet for record of the [court official], dated [in] January 2012, and notes the primary investigation report which states [number] unknown persons as accused in the case is received. Case is taken into cognizance.

17. The fourth document is headed First Information Report, and states first information regarding cognizable offence under section 154 of the Criminal Procedure Code submitted in the police station. Upazila PS [location] Date and time, [date] January 2012 at around 10 PM. The document has a table with columns headed date and time of submission [date] January 2012 at 9 PM, place of occurrence, disturbance from the police station and direction in area number under jurisdiction: place of occurrence in the bedroom of husband of deceased village [name] PS: [location]  UP No. Distance from PS: 10 KM [direction], date of sending from a police station [in] January 2010.

18. The fifth document is a table noting the complainant’s name, unknown accused numbering around [number] people, section references and the accusations of kidnapping rape and killing of the deceased and then disappearing the dead body, and also noting the complaint had been filed and noted in the register and the cause of delay mentioned in the register.

19. The applicant also provided a copy of a document dated [in] March 2013 with the letterhead Office of the Union Parishad a [official] [location] Union Parishad, and the heading Death Certificate, noting that according to the family statement the writer came to know that [name], husband’s name [the applicant], died as on the last [date] January 2012 Thursday at [time] of a suffocated by the miscreant. Before her death she was also raped by miscreant.

20. The applicant also provided a copy of a document dated [in] April 2013 with the letterhead Office of the Union Parishad a [official] [location] Union Parishad, and the heading Character/Nationality Certificate, certifying that [the applicant] is known to the writer and is a permanent inhabitant of [number] ward of his Union, and to the best of the writer’s knowledge he did not take part in any activities subversive of the state.

21. The applicant also provided a copy of two documents with the heading The People’s Republic of Bangladesh Birth and Death Registry Office [location] Union Parishad, with the headings Birth Certificate. One document refers to [name] with a date of birth [date]. One document refers to [the applicant] with a date of birth [date].

22. During the hearing the applicant told the Tribunal he feared returning to Bangladesh because he had refused to join the ALP, and a group of people connected to the ALP had killed his wife and will be violent towards him. He told the Tribunal the ALP now has double power, and since the last election its power has increased and they do what they like.

    FINDINGS AND REASONS

    Nationality

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

    Credibility

24. During the hearing the applicant confirmed an interpreter was used when he signed his statutory declaration, and that he understood the contents of his statutory declaration and the visa application forms, and did not wish to add anything or make any changes to those documents.

25. The Tribunal discussed with the applicant his background in Bangladesh, his education, employment and family composition, as well as where he had lived in Bangladesh, his family’s political affiliations and activities, why he left Bangladesh, and his fears of returning. While some of the applicant’s oral evidence was consistent with the information in his visa application forms and statutory declaration, the Tribunal raised a number of concerns in relation to the applicant’s oral evidence. The Tribunal noted a number of differences between his oral evidence and the information in his visa application form, his statutory declaration, and the information in the documents he had provided at the hearing. The Tribunal finds the applicant is not a witness of truth and it is not satisfied the applicant has told the truth in relation to critical aspects of his claims. The reasons for this finding are discussed in more detail below.

26. During the hearing the applicant told the Tribunal he got married in Bangladesh. When asked when that happened the applicant told the Tribunal it’s about four to five years now. The Tribunal later raised its concerns that the applicant’s oral evidence was different to the information in his visa application form which indicates he was married [in] December 2008. The Tribunal also raises concerns that the applicant’s oral evidence was different to the information provided in the first document the applicant had provided at the hearing, which appears to be a statement of complaint by the victim’s father, dated [in] January 2012, which states his daughter was married around eight years ago with [the applicant].

27. In response to the Tribunal’s concerns the applicant told the Tribunal that he had told the Tribunal that he had said he was married five years from the time of being in Bangladesh. The Tribunal notes when it had asked the applicant when he got married in Bangladesh the applicant had told the Tribunal it’s about 4 to 5 years now. The Tribunal is prepared to accept that this difference may be attributed to a miscommunication or misinterpretation, and in isolation the Tribunal would not draw any adverse credibility conclusions from this. Nevertheless the Tribunal also notes the applicant’s oral evidence is different to the information in the document he provided to the Tribunal. The Tribunal considers the applicant has provided significantly different dates for his marriage. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

28. During the hearing the Tribunal raised its concerns that the applicant had told the Tribunal that he was not involved in politics in Bangladesh, that his father had supported BJI, that his [family members] had now joined the ALP, and that no one else in his family was active politically, yet his statutory declaration declares “My brothers were also politically active. They were supporters of the Bangladesh Nationalist Party (BNP).” In response the applicant told the Tribunal they were not politically active, it’s just that they like the BNP, but are not active members of any political party, and that the BNP ideologies are good, and even the applicant liked the BNP. The Tribunal also noted the delegate’s decision record indicates that the applicant told the delegate when asked why this group targeted his family, that it was because his brothers were supporters of the BNP and his father supported BJI. In response the applicant told the Tribunal it’s one party now; BJI and the BNP are one party now. The Tribunal noted country information indicated that while BJI and the BNP have been in an alliance, they are not the one party[2]. The Tribunal raised its concerns that the applicant had told the delegate that his brothers were supporters of the BNP, but that he had not told the Tribunal this during the hearing, until the Tribunal raised its concerns, and noted the applicant had told the Tribunal no one else in his family was politically active. In response the applicant told the Tribunal he was not asked if his brothers were politically active. The applicant also suggested he may have not understood the question.

    [2] DFAT Country Report, Bangladesh, October 2014;

29. The Tribunal notes that it had asked a number of questions about the applicant’s family’s political activities and spoken to the applicant about his father’s support of BJI and that his father went to prayer and taught the Quran, and that his [family members] had been forced to join the ALP after the applicant left Bangladesh. The Tribunal had asked the applicant if anyone else in his family was politically active or involved with political parties and the applicant had answered “No”. The Tribunal notes that at the start of the hearing the applicant had confirmed that he understood the interpreter. The Tribunal does not accept the applicant misunderstood the question or questions asked of him. The Tribunal does not accept the applicant’s responses to its concerns explains the difference between his oral evidence and information provided in his statutory declaration and during the delegate’s interview as recorded in the delegate’s decision record. While the Tribunal accepts the applicant has been consistent in relation to his father’s support of BJI, the Tribunal considers the applicant’s oral evidence about the rest of his family, specifically his brothers’ or [family members’] political activity, is very different to the information he has previously provided. The Tribunal considers this difference reflects poorly on the applicant’s credibility and the reliability of his evidence.

1. During the hearing the Tribunal noted the applicant had told the Tribunal that on the day that his wife was taken, he had been at his farm, and that the assistants of the local ALP leaders had spoken to him and told him to stop farming and to attend an ALP meeting that night. The applicant had said okay because he was fearful. He told the Tribunal he then went to the city that night in order to sell his vegetables the next morning, and did not attend the ALP meeting. The applicant told the Tribunal that after the ALP meeting those people had gone to his house and found his wife and took her. He later told the Tribunal that his mother had argued with them and that they had pushed her and took his wife and that his mother had recognised those people.

2. The Tribunal raised its concerns that the applicant’s oral evidence was different to the information in his statutory declaration which states his mother told him that when he left for Dhaka the ALP people came looking for him. She told them that the applicant was not at home and that he’d gone to Dhaka. The men then left and returned that night. They knocked on the door and took his wife away. His mother is old and by the time she came to help, the men had taken his wife away.

3. In response the applicant told the Tribunal there were several times they came to his home, and he had made a short summary, and they did not become angry by coming to his house once, they came several times, and that’s what made them angry, and his mother is not very expressive and some days she will tell him something, and that is what he will know, and on other days she will give him more information, and he only knows what she tells him.

4. The Tribunal is not persuaded by the applicant’s response and does not accept it explains the difference between his oral evidence and the information in his statutory declaration. The Tribunal notes it had discussed with the applicant in detail what happened over the days leading up to the death of his wife. The Tribunal accepts the applicant had told the Tribunal that people had visited his home a number of times over those days seeking the applicant and leaving messages for him to attend ALP meetings. Nevertheless the applicant’s oral evidence about what happened on the day his wife was taken is very different to the information he provided in his statutory declaration. The Tribunal does not accept that the difference can be explained by the different times the information was provided to the applicant by his mother. The Tribunal notes the applicant’s statutory declaration is dated [in]  May 2013 and indicates the information about what happened after the applicant left for Dhaka had been provided by his mother. The Tribunal considers the difference between the applicant’s oral evidence and his statutory declaration reflects poorly on the applicant’s credibility and the reliability of his evidence.

5. During the hearing the Tribunal raised its concerns about the credibility of the claim that after the applicant’s wife was killed, ALP people from his village were looking for the applicant, yet did not find the applicant while he was in hiding in his brother-in-law’s house, which was in a village close to the applicant’s village. The Tribunal raised this credibility concern noting the circumstances the applicant had described. The applicant had told the Tribunal he collapsed when he discovered his wife’s body, with the people from his village gathered around, and that his brother-in-law, who lived in a nearby village, had taken him while he was unconscious to his house. The Tribunal raised its concerns about the credibility of the claim that ALP people from the applicant’s village were searching for him but did not find him, given the circumstances described by the applicant, that people from his village were present when the applicant was taken away by his brother-in-law who live in a nearby village.

6. In response the applicant told the Tribunal his brother-in-law put him in a house in his care, but that it was not his brother-in-law’s house. The applicant also told the Tribunal his brother-in-law had a good relationship with the ALP leaders and probably that is why they did not go to his house. The Tribunal noted the applicant’s response was different to his earlier oral evidence, that he was taken to, and hid in, his brother-in-law’s house. In response the applicant told the Tribunal his brother-in-law had been approached to join the ALP and had said okay so that is why people did not go to his house. The applicant also told the Tribunal he did not take it seriously before, and did not know he had to give all this information, and if he had known he would have given his statutory declaration in a more organised way.

7. The applicant also told the Tribunal that when he thinks about these things his brain does not work, and it feels like he cannot give a lot of information correctly as well. The Tribunal asked the applicant if he had any medical conditions or was taking any medications that may affect his ability to recall things in detail or consistently. The applicant told the Tribunal that he feels very differently when he thinks about these things and that his brain does not work. The Tribunal asked the applicant if he had seen a doctor about this. The applicant told the Tribunal he had done treatment before. When questioned what treatment the applicant had undergone, the applicant told the Tribunal that his case manager had advised him if he started to feel very bad he can tell them and they will organise treatment for him. When questioned if that had happened, the applicant told the Tribunal that normally he can live a normal life, but today during the interview he had to recall old memories and therefore he feels bad. On further questioning the applicant told the Tribunal he was not taking any medication and had not been to the doctor, because he does not have the motivation to do anything.

8. The Tribunal notes that it took two short adjournments during the hearing to help alleviate any stress, and that the applicant had told the Tribunal that he was okay to proceed at the recommencement of the hearing. The applicant has not provided any medical evidence to support his claim that his brain does not work when he thinks about the incidents that occurred to him in Bangladesh. The Tribunal notes the applicant’s oral evidence that he is not taking any medication, had not seen a doctor, and had not pursued a referral for treatment. While the Tribunal accepts that giving evidence at a hearing can be stressful, and that a person’s ability to recall details can be effected by stress and memories of emotional situations, the Tribunal does not accept that the applicant’s brain does not work when he thinks about the incidents that occurred to him in Bangladesh. The Tribunal finds the applicant’s claim that ALP people from his village were searching for him, but did not find him, while he was in hiding for two or three months after the death of his wife in his brother-in-law’s house in a nearby village, not credible. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

9. During the hearing the applicant told the Tribunal that while he was in hiding in his brother-in-law’s house, the ALP people visited his family home in his village asking where the applicant was, and when his family members said they did not know, the ALP people would beat them, and that is why his family eventually left the family home. The Tribunal raised its concerns that the applicant’s statutory declaration did not mention the applicant’s family members were beaten by ALP people. The Tribunal also noted the delegate’s decision record did not record the applicant mentioning this in his interview with the delegate [in] April 2013. In response the applicant told the Tribunal it was a long story and it was not possible to tell all the details and the applicant was not sure to what extent the questions were asked, and that’s why he didn’t mention it. He told the Tribunal it had been six or seven years that these things had been happening to him and he did not know which of the incidents he needed to remember. The applicant then told the Tribunal it had been three or four years that every day something was happening so he did not know which incident to remember. The applicant told the Tribunal that the conditions in Bangladesh were very bad, that it was not Bangladesh anymore and it was in others’ hands.

10. The Tribunal is not persuaded by the applicant’s response. While the Tribunal does not expect the applicant to recall every incident, if there were daily incidents over three of four years, it does consider the claim that after he went into hiding the applicant’s family was beaten for telling the ALP people they did not know where he was and that that was the reason why they eventually left their family home, to be significant, and something the Tribunal would expect someone in the applicant’s circumstances to have mentioned to the Department and prior to the hearing of the review application, if it had occurred. The Tribunal considers the applicant’s failure to mention that his family were beaten by ALP people after he went into hiding prior to the hearing reflects poorly on the applicant’s credibility and the reliability of his evidence that the beatings actually occurred.

11. During the hearing the Tribunal raised its concerns that the applicant had provided different dates or estimations about when his wife was killed. During the hearing the applicant had told the Tribunal it had occurred two years and eight or nine months prior to the hearing. The Tribunal calculated that would mean sometime around the end of 2012 or early 2013. When discussing the documents provided to the Tribunal at the hearing the applicant also told the Tribunal they referred to the incident that occurred [in] January. The Tribunal raised its concerns that the applicant’s visa application form states his wife’s date of death as [in] February 2012, and a number of the documents provided by the applicant, including the Death Certificate, recorded the incident occurred [in] January 2012. In response the applicant told the Tribunal he cannot count January or February, he cannot relate to January of February, and that whatever is in the documents should be the timing. The Tribunal has taken into consideration the applicant’s earlier oral evidence that he had a limited education. While the Tribunal does not expect the applicant to provide an exact date, the Tribunal remains concerned that the applicant has provided oral evidence indicating his wife died some time at the end of 2012 or early 2013, and has also provided a number of documents that state the death occurred a considerable amount of time prior to the end of 2012. The applicant also provided a date of death in his visa application forms that is different to the date provided in the documents submitted at the hearing. The Tribunal considers the applicant has provided a number of significantly different dates or periods of time for when his wife died. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

12. During the hearing the Tribunal raised its concerns that the applicant had told the Tribunal that after his wife’s death, her parents went to the police station but the police would not take the case because the ALP members were in the police station, yet some of the documents provided by the applicant at the hearing appeared to be police documents indicate the police were involved and there was an investigation. The Tribunal noted the documents included a First Information Report, a complaint by the victim’s father against unknown accused [number] persons addressed to the [officer]: [location], an Order fixing the date for submitting the investigation report, and an Order sheet for record of the [court official] noting case number. In response the applicant told the Tribunal that to show they had done some work they provided some documents but they have not arrested the people who committed the crime, or acted on the crime because it is all of their own people. The documents were to save themselves and show the senior officers they were doing something. The applicant told the Tribunal that the people who are in power can make day into night and night into day and normal people have no power.

13. The Tribunal is not persuaded by the applicant’s response. While the Tribunal has some concerns in relation to the differences between the applicant’s oral evidence and the documents he has provided, discussed below, the Tribunal notes the applicant’s initial oral evidence, that his wife’s parents went to the police station but the police would not take the case, is not supported by the documents he has provided. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

14. During the hearing the Tribunal raised its concerns that the document addressed to the [officer] PS: [location], with the heading Subject: [deleted], which appears to be a statement of complaint by the victim’s father against [number] unknown persons, dated [in] January 2012, states the accused took her to an unknown place and raped her and to keep the matter concealed they suffocated her to death and got her body disappeared so that her dead body could not be traced out. It further states her dead body can be found and detail can be known by an investigation. The Tribunal raised its concerns that this document appears to indicate that the victim’s body was missing and needed to be found. In response the applicant told the Tribunal this was said in fear. On further questioning the applicant told the Tribunal he does not know the whole information and that is why he cannot comment on it, but they said a few different things in different places because of fear. Because they killed their daughter, and they were getting threats and were in fear, but wanted to file a case. The Tribunal noted the applicant had earlier told the Tribunal that the police had his wife’s body, and had sent it for an autopsy. In response the applicant told the Tribunal he was not there at the time and does not know what happened. The Tribunal confirmed that the applicant had earlier told the Tribunal that the police had his wife’s body and had sent it for an autopsy. The applicant told the Tribunal he had heard the police took the dead body, that is what he had heard, but he had not seen it with his own eyes. The applicant told the Tribunal he did not know when it was Saturday or Sunday at that time or what date it is.

15. The Tribunal does not accept the applicant’s response explains the difference between his oral evidence and the information in the document indicating the victim’s body was missing. The Tribunal does not accept that the fear of the victim’s parents explains why they would lodge a complaint but alleged the body had disappeared, and that the body can be found and detail can be known by an investigation. The Tribunal notes this explanation makes no sense in light of the applicant’s oral evidence that he had heard the police had the body and had sent it for an autopsy. The Tribunal considers the difference in the applicant’s oral evidence and this document in relation to the known whereabouts of the victim’s body, reflects poorly on the applicant’s credibility and the reliability of his evidence and the document he has provided.

16. During the hearing the Tribunal raised its concerns that the same document, which appears to be a statement of complaint by the victim’s father against [number] unknown persons, states the accused could not be identified due to the covering put on their face, and a number of the other documents provided by the applicant state “Unknown Accused”. The Tribunal noted the applicant had earlier told the Tribunal that his mother saw the people who took his wife, that she had recognised them and argued with them, and that they had pushed her. In response the applicant told the Tribunal that his mother did not give him the information in one go, if she feels like it she will talk a bit more, that his mother feels if she gives all the details it may hurt the applicant, so she did not wish to disclose information. He told the Tribunal that whenever she says something that is the information the applicant knows. The Tribunal does not accept the applicant’s response explains the difference between his oral evidence, that the people who had taken and kill his wife were known to his mother, that she recognised them, and the document he provided, which indicates the accused could not be identified due to the covering put on their faces. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence and the document his provided.

    Refugee Convention

17. The Tribunal found the applicant’s oral evidence to be different to the information in his visa application forms, his statutory declaration, and the documents he provided at the hearing, in a number of important aspects. The applicant has provided a number of significantly different dates for when he was married, and a number of significantly different dates and periods of time for when his wife was killed. The Tribunal does not accept the applicant’s claims to have hidden at his brother-in-law’s home in a nearby village for two or three months and not been found by the ALP people who were searching for him, to be credible. The Tribunal has significant concerns in relation to the differences between the applicant’s oral evidence and the documents he has provided to the Tribunal, especially the documents that appear to relate to a police complaint and investigation. Given those concerns the Tribunal puts little weight on those documents. The Tribunal also puts little weight on the document headed Death Certificate, given the document’s writer reports the death on the basis of the applicant’s family statement, and there is no indication the writer was a witness to the event or has seen the body in question. The Tribunal finds the applicant is not a witness of truth and it is not satisfied the applicant has told the truth in relation to critical aspects of his claims.

18. While the Tribunal accepts the applicant’s father may be a low level supporter of BJI, whose support is limited to praying at the mosque and teaching the Quran, given the credibility concerns noted above, the Tribunal does not accept the applicant’s brothers were supporters of the BNP or that the applicant was married to a person who was later killed by people connected to the ALP, or that the applicant and his family members were of adverse interest to supporters and members of the ALP, or that people connected to the ALP tried to stop the applicant and his family members supporting other parties. The Tribunal does not accept members of the ALP came to the applicant’s home or farm asking for his support or the when the applicant refused they threatened him with consequences. The Tribunal does not accept the applicant’s wife was killed by people connected to the ALP, or that he became aware of that when he returned from Dhaka. The Tribunal does not accept the applicant was of any adverse interest to people connected to the ALP, or that he went into hiding at his brother-in-law’s house for two or three months, or that that was the reason he left Bangladesh. The Tribunal does not accept the applicant’s family was questioned about the applicant’s whereabouts, or that they were beaten by supporters or members of the ALP. The Tribunal does not accept the applicant’s family have moved away from the family home due to ongoing adverse interest in the applicant, or ongoing adverse interest in them, or any ongoing beatings, from people connected to the ALP. The Tribunal does not accept the applicant’s [family members] have been forced to join the ALP since the applicant left Bangladesh.

1. The Tribunal does not accept the applicant was of any adverse interest to anyone in his village or anyone connected to the ALP when he left his village and Bangladesh, or at any time after that. The Tribunal does not accept the applicant was in fear of harm when he left Bangladesh or that since that time anyone has been looking for him in Bangladesh or making any threats in relation to him. The Tribunal does not accept the applicant or his brothers were politically active or supporters or members of any party in Bangladesh, or that the applicant had any political profile or imputed political opinion while he was in Bangladesh. Given the applicant’s father’s low level activity in relation to BJI, the Tribunal does not accept there is a real chance the applicant or his family members would be imputed with a political opinion, or would be of any adverse interest to anyone in Bangladesh because of his father’s support of BJI. The Tribunal does not accept the applicant would become involved in any political activity if he returned to Bangladesh, or that there is a real chance he would be imputed with any political opinion that would attract the adverse interest of anybody.

2. The Tribunal does not accept the applicant is of any ongoing adverse interest to anyone in Bangladesh due to his refusal to join a political party (which the Tribunal does not accept occurred) or his political opinion, or imputed political opinion, or due to the political opinion and activity of his father or any other members of his family.

3. The Tribunal has also considered the issue raised by the applicant during the hearing, that some of his family’s land had been captured and occupied by people connected to the ALP. The Tribunal noted during the hearing that the applicant had not raised this in his statutory declaration or during his interview with the delegate as recorded in the delegate’s decision record. In response the applicant told the Tribunal that he did not know what to talk about the land, because they have taken it, and were doing their own thing. For the reasons outlined above, the Tribunal does not accept the applicant is a witness of truth and the Tribunal does not accept some of the applicant’s family’s land has been captured and occupied by people connected to the ALP, or that there is a real chance the applicant would suffer serious harm because of that, if he was to return to Bangladesh now or in the reasonably foreseeable future.

4. The Tribunal does not accept the applicant is of ongoing adverse interest to anyone in Bangladesh, for the reasons he has claimed. The Tribunal does not accept there is a real chance the applicant will be persecuted, or tortured or killed, or suffer serious harm, or harm of any kind, if returned to Bangladesh, now or in the foreseeable future. For these reasons the Tribunal finds the applicant does not have a well-founded fear of persecution.

5. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied 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).

   Complementary protection

6. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).

7. The Tribunal finds the applicant is not a witness of truth and it is not satisfied the applicant has told the Tribunal the truth in relation to critical aspects of his claims.

8. For the reasons given above, the Tribunal does not accept the applicant’s brothers were supporters of the BNP or that the applicant was married to a person who was later killed by people connected to the ALP, or that the applicant and his family members were of adverse interest to supporters and members of the ALP, or that people connected to the ALP tried to stop the applicant and his family members supporting other parties. The Tribunal does not accept members of the ALP came to the applicant’s home or farm asking for his support or that when the applicant refused they threatened him with consequences. The Tribunal does not accept the applicant’s wife was killed by people connected to the ALP, or that he became aware of that when he returned from Dhaka. The Tribunal does not accept the applicant was of any adverse interest to people connected to the ALP, or that he went into hiding at his(relative)’s house for two or three months, or that that was the reason he left Bangladesh. The Tribunal does not accept the applicant’s family was questioned about the applicant’s whereabouts, or that they were beaten by supporters or members of the ALP. The Tribunal does not accept the applicant’s family have moved away from the family home due to ongoing adverse interest in the applicant, or ongoing adverse interest in them, or any ongoing beatings, from people connected to the ALP. The Tribunal does not accept the applicant’s [family members] have been forced to join the ALP since the applicant left Bangladesh. The Tribunal does not accept the applicant was of any adverse interest to anyone in his village or connect to the ALP when he left his village and Bangladesh, or at any time after that. The Tribunal does not accept the applicant was in fear of harm when he left Bangladesh or that since that time anyone has been looking for him in Bangladesh or making any threats in relation to him. The Tribunal does not accept the applicant or his brothers were politically active or supporters or members of any party in Bangladesh, or that the applicant had any political profile or imputed political opinion while he was in Bangladesh. Given the applicant’s father’s low level activity in relation to BJI, the Tribunal does not accept there is a real risk the applicant or his family members would be of any adverse interest to anyone in Bangladesh because of his father’s support of BJI. The Tribunal does not accept the applicant would become involved in any political activity if he returned to Bangladesh, or that there is a real risk he would attract the adverse interest of anybody. The Tribunal does not accept the applicant is of any ongoing adverse interest to anyone in Bangladesh due to his refusal to join a political party (which the Tribunal does not accept occurred) or due to the political opinion and activity of his father or any other members of his family. The Tribunal does not accept some of the applicant’s family’s land has been captured and occupied by people connected to the ALP, or that there is a real risk the applicant would suffer serious harm because of that, if he was to return to Bangladesh now or in the reasonably foreseeable future.

9. The Tribunal does not accept the applicant is of ongoing adverse interest to anyone in Bangladesh, for any reason.

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

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

12. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk he will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa) for a protection visa.

    CONCLUSION

13. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.

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.

    Chris Thwaites
    Member  14 January 2016

    
    

    ATTACHEMENT: RELEVANT LAW

16. 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

17. 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).

18. 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.

19. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

20. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

21. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

22. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

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

24. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

25. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

26. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

27. 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’).

28. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

29. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

30. 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.