1415147 (Refugee)

[2016] AATA 3293

1415147 (Refugee) [2016] AATA 3293 (8 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415147

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Tania Flood

DATE:8 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 08 February 2016 at 1:39pm

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 on [date] June 2013 and the delegate refused to grant the visa on [date] August 2014.

3. The applicant appeared before the Tribunal on 20 January 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

5. 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).

6. 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.

7. 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’).

8. 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.

9. The issue in this case is whether there is a real chance the applicant will suffer serious harm on return to Bangladesh for a Convention reason or alternatively, whether there are substantial grounds for believing that there is a real risk he will suffer significant harm if returned from Australia to Bangladesh.   For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Summary of Claims

10. In a statement attached to his application for a Protection visa the applicant makes the following claims:

11. He was born in [name] Village, Jessore District, Khulna Division, Bangladesh.

12. His family have always supported the Bangladesh National Party (BNP) and he also personally supported the BNP and voted for them in the general elections.  As such, his family has a long history of enmity with supporters of the opposition party, the Bangladesh Awami League (Awami League).

13. In about 1999 his [Sibling 1] [name] applied for membership of the local council but was unsuccessful.  [Sibling 1]’s opponent was from the Awami League and from this point onwards [Sibling 1] was targeted by the Awami League.

14. One day in about 1999 supporters of the Awami League came to his family home and kidnapped [Sibling 1].  He was taken to a nearby school field where he was physically assaulted with a large knife with a wooden handle.  [Sibling 1] suffered deep cuts and received traditional medical treatment.

15. In about 2000 [Sibling 1] was convicted of false charges laid by a local Chairman of the Awami League and imprisoned.  However, in about 2001 a caretaker government came into power and with the influence of the BNP [Sibling 1] was released.  After that [Sibling 1] went into hiding and disappeared.  His family has not seen or heard from [Sibling 1] since.

16. After [Sibling 1’s] disappearance he became politically active and started attending BNP meetings and participating in their rallies.

17. In 2008 the Awami League came into power however he continued to support the BNP.  From time to time he was verbally abused by members of the Awami League.

18. In or around January 2013 he was attacked by Awami League supporters while sitting in a public area reading a newspaper sponsored by the BNP and Jamaat-e-Islami.  In particular, he was reading an article on Delwar Hossain Sayeedi the former leader of Jamaat-e-Islami who was convicted of war crimes against humanity when he was approached.  They got into a heated argument about the article and the Awami League supporters threatened to harm him as they harmed [Sibling 1] if he continued to read the newspaper.  Then they started to punch and kick him but he was able to run away to [Sibling 2]’s house in the next village, [name].

19. After this incident the supporters of the Awami League began searching for him.  They came to his house and asked for his whereabouts.  His father denied any knowledge of his whereabouts.

20. After 2-3 days of hiding at [Sibling 2]’s house, he fled Bangladesh with the assistance of a people smuggler.

21. Since arriving in Australia in March 2013 he has contacted his family who have advised him that the Awami League supporters are still searching for him.

22. He fears being physically assaulted and/or killed by members and supporters of the Awami League if he returns to Bangladesh. The authorities of Bangladesh are unable or unwilling to protect him because the Awami League is the current ruling party.

23. At the time of his entry interview on [date] April 2013 the applicant claimed the following:

24. He was threatened in the same way as [Sibling 1] by Awami League supporters and his parents advised him to go someplace where he could be protected.

25. In the first week of January 2013 he was sitting reading a newspaper in the school field when he was approached by an Awami League supporter and challenged for reading the newspaper.  An argument occurred and he ran away because they were threatening him.  He was beaten many times before that incident because he was moving around with the BNP, attending meetings and protest rallies, following [Sibling 1]’s disappearance.

26. The Awami League people were searching for him and he moved to [Sibling 2]’s place before leaving Bangladesh.

    Findings and reasoning

    Country of Reference

27. The applicant has produced no identity documents from Bangladesh.  However, he has been consistent with his identity and birth details since his arrival in Australia and at the Protection visa interview with the Delegate and before the Tribunal the applicant spoke in the Bengali language which is the principle language spoken in Bangladesh.  The applicant stated at hearing that he does not have citizenship of any other country or the right to enter and reside in any other country.  In the absence of any information to the contrary the Tribunal accepts that Bangladesh is the applicant’s country of nationality for the purposes of the Convention and also the receiving country for the purposes s.36(2)(aa) of the Act.

    Other family member involvement in BNP

28. At the hearing the applicant was asked about his remaining family members in Bangladesh and elsewhere.  He confirmed that his parents, [and some siblings] are all living at his family home in [name] village and [another sibling] lives in a different village.  When asked how this remaining family in Bangladesh are doing the applicant stated that they are generally fine but they worry about him.

29. Further, the applicant stated he has [siblings] living in [Country 1] – one for approximately seven or eight years and another for approximately two years.  He confirmed that one [sibling] went to [Country 1] for work purposes and the other [sibling] who has been there for approximately two years went there because of political problems.  The applicant confirmed the second [sibling] had left for [Country 1] after he came to Australia because [the sibling] too was beaten on a couple of occasions for political reasons. 

30. The Tribunal put it to the applicant that he had previously told the Delegate that it was only him and his missing [Sibling 1] who were involved in politics and that the remaining family did not have any problems because they were not involved.  The applicant replied that his other [siblings’] problems were comparatively recently.  The Tribunal pointed out that at the time of the interview with the Delegate he said that both [siblings] were already living in [Country 1] and he never indicated then that one of his [siblings] had also left the country for political reasons.  In view of these conflicting claims, the Tribunal is not satisfied that either of the [siblings] living in [Country 1] left Bangladesh for political reasons. 

31. The Delegate did not accept that the applicant’s [Sibling 1] went missing for political reasons, in part due to discrepancies around the reported date of his disappearance. In this respect the Tribunal notes the applicant stated in his entry interview that the date of disappearance was 2005/2006 whereas his written claims and evidence to the Delegate was that it occurred in 2001.  At the hearing the applicant again said [Sibling 1] went missing in 2001 while acknowledging he couldn’t be exactly sure.  The applicant has otherwise consistently claimed that [Sibling 1] was a member of the BNP and encountered problems with the Awami League when [Sibling 1] attempted to contest a seat on the village council.  While there are some minor inconsistencies in the detail provided about the circumstances of [Sibling 1’s] assault and disappearance the Tribunal acknowledges that the events in question happened up to 15 years ago and therefore it has given the applicant the benefit of the doubt and accepts that [Sibling 1] was assaulted by Awami League opponents, arrested and jailed and disappeared soon after [Sibling 1’s] release sometime in 2001.  The Tribunal accepts, on the consistency of his evidence, that he has had no further contact with [Sibling 1] since then.

    Applicant’s BNP involvement and claimed attack in 2013

32. When asked about his own involvement in the BNP the applicant stated that he occasionally joined [Sibling 1] when [Sibling 1] went to political events but only became active himself in about 2008.  He confirmed he was a supporter of the party, not a formal member.  He said that if there was a meeting or procession he would attend, especially if a leader was attending.  He confirmed he was involved in no other political activities.  The Tribunal pointed out that his written claims say he became actively involved in 2001 and that when the Awami League came to power in 2008 he continued his support for the BNP.  The applicant confirmed he only became actively involved in 2008.

33. The Tribunal asked the applicant whether he experienced any difficulties with Awami League supporters between 2008 and the claimed attack in 2013.  He said there were occasions when he was abused and subjected to minor assault such as pushing and shoving.  The Tribunal considers the applicant has been generally consistent in making such claims and accepts that he did encounter some verbal and minor physical abuse from Awami League members or supporters in these years.

34. The Tribunal questioned the applicant about his reasons for supporting the BNP and his knowledge of the party in general.  The applicant was unable to provide any well-reasoned explanation for his support of the BNP other than he found the party to be honest, unlike the Awami League. He was asked to describe the party flag and the significance of its colours but could only correctly articulate certain elements of each.   He conceded he does not have a deep rooted knowledge of the party and hasn’t deeply explored the policies of the party.  He agreed that his reason for supporting the BNP was due to family tradition.  The Tribunal accepts this is the case.

35. The applicant was asked if he has been involved with the BNP in Australia and he said he had not.  He said that he did not wish to get into any further trouble and wants to remain aloof from politics.  The Tribunal asked if he would adopt the same attitude if he returns to Bangladesh.  He said he has pending problems in Bangladesh and even if he wanted to remain aloof it wouldn’t be possible.  The Tribunal asked the applicant if he would resume his political activities if he returns to Bangladesh.  He said that he wants to live peacefully and wouldn’t like to get involved but that other people will involve him.

36. The applicant was asked about the claimed attack in 2013 and he provided a generally consistent account to what is claimed in his written statement and in his discussion with the Delegate. He was able to personally identify two of his attackers by name and provided a plausible explanation as to how he knew them and vice versa.  He has also consistently stated that it was his attacker’s reference to his missing [Sibling 1’s] fate that concerned him most about this incident and caused him to fear for his own life.  Whereas the Delegate considered this incident far-fetched and the applicant’s account of the details general, the Tribunal is prepared to accept, on the consistency of his evidence that this event occurred as claimed.

37. The applicant has also consistently claimed that he fled his village after this incident and went to stay at [Sibling 2]’s house in another village for a couple of days before departing for Dhaka and out of the country.  The applicant was asked whether anybody from the Awami League came looking for him during this time.  He said that his parents informed him that people came to the house on two or three occasions asking for him.  He said he knows that they came on the afternoon of his escape and again the following day but cannot recall when they came again.  He said he thought it might have been two weeks or so later.

38. When asked why his attackers would still be interested in him now, especially as he does not appear to have a high political profile, he said that he is scared he will suffer the same fate as his missing [Sibling 1].  The Tribunal pointed out that it appears [Sibling 1] had a much higher political profile than him and it was difficult to see why he would be continually targeted by political opponents.  Further the Tribunal noted that [Sibling 1] has been absent for fifteen years and it is difficult to see why [Sibling 1’s] political activities should continue to cause him problems. 

39. The Tribunal accepts the applicant was a supporter of the BNP in Bangladesh but only ever at a low level, attending meetings and processions occasionally.  Despite some reservation about the likelihood of the applicant being pursued on return to Bangladesh by his attackers from 2013, the Tribunal nevertheless acknowledges he has encountered past harm from Awami League supporters due to his opposing political affiliation and possibly due to his missing [Sibling 1’s] former role in local politics.  Given the applicant is from a small community, and given the reportedly entrenched nature of oppositional politics in Bangladesh, the Tribunal considers there is a possibility he would continue to be of adverse interests to those Awami League supporters involved in the 2013 attack should he return to his village in Bangladesh.

40. While the applicant provided no explanation as to why he did not seek police protection when the attack occurred in 2013 the Tribunal is not satisfied, based on the independent country information below, that such protection would be available in the circumstances.

41. On state protection DFAT[1] reports:

    The Bangladesh police generally provide adequate protection for Bangladeshis and the state has held the police accountable for failing to provide adequate protection.  However, the police, including RAB, have been accused of failing to protect some communities and of being involved in human rights abuses and extrajudicial killings.  There has been an increase in reports against police received by the National Human Rights Commission in recent years.  After initial enquiries, the Commission refer such matters to the police for consideration.  To date, the government has not demonstrated a high level of responsiveness to the Commission’s reports.

    The current AL Government has restricted the activities of the Bangladesh Nationalist Party (BNP), Jaamat-e-Islami (JI) and other pro Islamist groups.

    [1] DFAT Country Report Bangladesh, 20 October 2014

42. The UK’s Home Office[2] reports:

    Dependent on the particular circumstances and profile of a person, the ability to access effective protection from the state of Bangladesh may be limited due to a poorly resourced, overburdened, inefficient police force and endemic corruption.  Some members of the security forces reportedly commit serious abuses, including torture, with impunity and members of religious minorities, political opponents and women are often victims of these abuses.

    [2] UK Home Office, Country Information and Guidance, Bangladesh, Background information, including actors of protection and internal relocation, November 2014

43. Jane’s Sentinel Security Assessment[3] reported:

    The country’s police force is widely seen as dysfunctional, not least because of endemic corruption, human rights abuses (with the RAB particularly the focus of accusations, after its leading role against the JMB (Jamatul Mujahedin Bangladesh) in the mid-2000s) and dire working conditions.

    [3] Janes’s Security Sentinel Bangladesh, Security and foreign forces, updated 25 July 2014

44. Odhikar[4] reports in its annual report covering 2013:

    The police force in Bangladesh is probably among one of the most corrupted institutions in Bangladesh.  There is a prevailing culture of impunity among the police and, in general, law enforcement agencies in Bangladesh.

    [4] Odikhar, Human Rights Report 2013, 15 April 2014

45. Human Rights Watch reported in its World Report 2014[5], covering 2013 events that:

    Bangladeshi security forces frequently used excessive force in responding to street protests, killing at least 150 protesters and injuring at least 2,000 between February and October 2013.

    [5] Human Rights Watch, World Report 2014, Bangladesh, 21 January 2014

1. The applicant’s level of political involvement was quite minimal before he left Bangladesh and he has not engaged in any political activity since coming to Australia.  Indeed he expressed the desire to remain aloof from politics.  While the Tribunal accepts it might be difficult to remain unaffected by oppositional politics if he returned to his own village where he and [Sibling 1] have a background of past harm, in view of him stating he no longer wishes to be involved in politics the Tribunal considers he could return to live elsewhere in Bangladesh.  The Tribunal acknowledges the applicant’s statement that he will be drawn into politics against his will by others, but finds that this relates to the circumstances in his local area.

2. The Tribunal put to the applicant at hearing that it accepts, based on independent country information, that the political environment in Bangladesh remains volatile and that violence ensues between members and supporters of the main political parties particularly around elections but that a person’s political profile is relevant to an assessment of the chance of them being harmed by political opponents.  In this respect the Tribunal noted that independent sources[6] maintain that it is persons with a higher political profile, such as leaders and prominent activists, who are at greater risk of harm.  The  Tribunal notes DFAT’s following assessment:

   ….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.

   [6] DFAT Country Report, Bangladesh, 20 October 2014.  UK Home Office, Country Information and Guidance, Bangladesh: Opposition to the Government, February 2015

3. Similarly, the UK Home Office reports:

   Membership or support of groups opposed to the current government does not of itself give rise to a well-founded fear of persecution in Bangladesh but may do so depending on the individual circumstances of the applicant.

4. In the event the applicant did resume any low level support for the BNP on return to another location in Bangladesh, the reputable sources quoted above support that this, in and of itself, will not cause the applicant to be adversely treated by political opponents or the Bangladeshi authorities.  The Tribunal accepts the political environment in Bangladesh is volatile and that there are reported incidences of politically motivated arrests, deaths and injuries, but does not accept the applicant has a profile such that there is a real chance he would be seriously harmed on return to a different location in Bangladesh for this reason.

5. The Tribunal has also considered whether it would be reasonable for the applicant to relocate to a different location in Bangladesh and discussed with the applicant at hearing a range of relevant considerations.  For instance, the Tribunal pointed out that the applicant is a young, single man with no dependents, who has reportedly obtained work experience in a restaurant environment since living in Australia and that he managed to travel to Australia and establish himself here in a different environment where he does not speak the language and has no familial support.  The Tribunal therefore indicated that it appeared he could reasonably relocate within Bangladesh. 

6. The applicant replied that politically the country has become polluted and he doesn’t think he would be secure anywhere in Bangladesh.  The Tribunal indicated that this appears to be predicated on an assumption he would be politically active which it finds difficult to believe.  The applicant insisted that any person can encounter such problems in Bangladesh.

7. Having carefully considered the applicants claims and responses at hearing, the Tribunal finds that the applicant could safely relocate to another area in Bangladesh where there is no appreciable risk of the feared persecution.  Further, the Tribunal considers it would be reasonable to expect him to do so in the circumstances.  Accordingly, the Tribunal finds the applicant does not have a well-founded fear of persecution for reason of his political opinion if he returns to Bangladesh now or in the reasonably foreseeable future.

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

9. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa) of the Act.    For the same reasons already articulated, the Tribunal considers it reasonable for the applicant to relocate to an area of the country where there would not be a real risk that he will suffer significant harm from Awami League members or supporters from his village.  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 be significantly harmed for the reasons claimed or any other reason. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

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

    DECISION

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

    Tania Flood
    Member