1415185 (Refugee)

[2016] AATA 3296

1415185 (Refugee) [2016] AATA 3296 (8 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415185

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Chris Thwaites

DATE:8 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 08 February 2016 at 9:16am

.

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 in an attachment to this Statement of Decision and Reasons.

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

3. On 8 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.

5. The applicant’s written claims for protection are contained in a written statement dated [in] June 2014 provided to the Department as an attachment to his visa application forms. In summary the applicant claims that he was born in [year] in [a town in] Dhaka, in Bangladesh. He is a citizen of Bangladesh and came to Australia on a [temporary] [visa] in May 2009. [In] March 2011 he applied for a subsequent [temporary] visa but that application was refused [in] June 2011 on the grounds of [not fulfilling visa conditions] in Australia. The applicant sought review of that decision at the Migration Review Tribunal, and then judicial review to the Federal Circuit Court of Australia, which dismissed that application [in] December 2012. After consultation with his previous immigration lawyer and a number of immigration law specialists the applicant came to realise that he was owed protection obligations by Australia under the Refugees Convention. He also believes he satisfies the criteria for complimentary protection as there is a risk of him suffering significant harm, such as deprivation of liberty, torture, degrading treatment or even death, if forcibly returned to Bangladesh.

6. The applicant claims that it is important to point out the history of the two major political parties in Bangladesh and the fundamental differences between their political agendas and standpoints. The applicant summarises the history of the Bangladesh National Party as well as the Awami League and the conflicts between those two parties.

7. The applicant claims his father has been a pious follower of Islam his entire life; he reads the Quran and the Hadith on a daily basis and prays five times a day and participates in Friday prayers in the mosque, and observes Ramadan. Everyone around him knows he is an outspoken follower of the Prophet Mohammed and always advocates the introduction of sharia law. The applicant’s father also proactively promotes the abolition of secularism, which the current ruling party is willing to go to any lengths to uphold. As a faithful Muslim and supporter of the BNP, the applicant’s father was constantly getting into trouble with the local law enforcement authority as well is the local Awami League supporters. His business premises in the CBD of [the town] were smashed and ransacked on numerous occasions by local mobs. The applicant’s father was infuriated because the police accused him of inciting violence in public, and inviting the trouble on himself, instead of taking effective measures to protect his shop. The police even warned his father to refrain from criticising the government in public and stop clamouring for the implementation of sharia law.

8. In February 2013 several leaders of the BNP and its affiliated party Jamaat-e-Islami were wrongly accused of having committed atrocious crimes against the people of Bangladesh during the liberation war in collaboration with the Pakistani army against the independence of Bangladesh. They were tried and sentenced to life imprisonment or death by the International Crimes Tribunal. The applicant’s father and a few friends went on the streets and held a banner saying: “Seeking for Justice, free the heroes”. The applicant’s father’s actions upset and enraged some local powerful figures. A few days after the street demonstration a group of men barged into the applicant’s father’s shop and called him “Razakar”, a word to describe someone who collaborated with the Pakistani army to persecute his fellow Bengalis. They placed a pistol on the table and demanded the applicant’s father pay a certain percentage of his monthly business profits to Jizya (a protection tax payable to rulers, usually referred to the protection fee payable by non-Muslims to their Muslim rulers). If he wanted to avoid paying the Jizya, and live a peaceful life, the applicant’s father should silence his voice and stop making any comments on the verdicts delivered by the International Tribunal. This group of people warned the applicant’s father not to report to the police as they were sent by powerful individuals who have connections with officials in the law enforcement department. Should the applicant’s father dare to get the police involved, the applicant’s [siblings] would be in danger. For the sake of the safety of the applicant’s mother and siblings, his father has not proactively fought for those who are wrongly accused, but has been discreetly making contacts with BNP parliament members for support and help.

9. Since March 2013 up to now, the applicant’s father has urged him many times going back to Bangladesh and take care of his siblings, as his father does not want to yield to intimidation and is determined to expose what he experienced to the public when the opportunity arises.

10. From the applicant’s prospective, he does not want to be involved in any religious movement or parties and strife, nor does he want to be incriminated by anyone, including his father, in these conflicts, which is why he has turned down his father’s repeated request. The applicant fears being forced to take part in political conflicts by his father and in doing so, there is a real chance that he would be subject to significant harm because of his imputed political religious objectives. Therefore the applicant lodged this claim to be a refugee under the International Refugees Convention as well as complementary protection.

11. [In] August 2014 the applicant’s representative provided copies of a number of documents and their English translations in support of the application to the Department, including: a letter from the [Organisation 1] Mosque stating the applicant’s father is a pious person and an active follower of the path of a Allah who prays five times a day and who attended a public gathering [in] May 2013 where he was seriously injured by the attack of the RAB-police and the ruling party terrorists; a medical certificate from [a doctor] dated [in] May 2013 indicating the applicant’s father was injured in a physical assault; as well as three Applications for entry in General Diary (police reports) made by the applicant’s father dated [in] May 2013, [in] December 2013 and [in] February 2014 reporting his injuries from the [May] 2013 assault as well as ongoing extortion demands and threats of kidnapping and violence toward him and his family members, including threats to kidnap the applicant at the airport should he returned to Bangladesh.

12. [In] August 2014 the delegate decided to refuse the applicant a protection visa because the delegate did not accept the documents provided in support of the application were genuine, and considered the applicant’s delay in seeking protection in Australia indicated that his fear of persecution was neither genuine nor well founded. The delegate did not accept that the applicant’s father was attacked by the supporters of the Awami League or anyone else on account of his political opinion. The delegate was not satisfied that any threat of harm was made against the applicant and as such the delegate was not satisfied that the applicant would be physically harmed or killed if returned to Bangladesh. The delegate was also satisfied that the applicant could relocate within Bangladesh. The delegate was not satisfied the applicant had a real chance of being persecuted for a Refugee Convention reason and therefore found the applicant’s fear of persecution was not well founded. The delegate was not satisfied that Australia had protection obligations to the applicant under the Refugees Convention and therefore the applicant did not meet the criterion for the grant of a protection visa under s.36(2)(a). The delegate was also not satisfied that the applicant had a real chance of being subject to significant harm should he return to Bangladesh, and the delegate was not satisfied that Australia had protection obligations to the applicant, because there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there was a real risk the applicant will suffer significant harm. Therefore the delegate was not satisfied Australia has protection obligations to the applicant under s.36(2)(aa).

13. On 8 September 2014 the applicant applied to the Tribunal for review of that decision.

14. The Tribunal initially invited the applicant to a hearing on 24 September 2015. That hearing was rescheduled on request of the applicant due to being [unwell]. The applicant provided a Medical Certificate to the Tribunal which stated the applicant was suffering from [condition] and unfit for work/school from [date] September 2015 to [date] September 2015 inclusive. The Tribunal granted the request and rescheduled the hearing to 9 October 2015.

15. On 9 October 2015 the Tribunal received a written request to reschedule the hearing from the applicant’s representative, enclosing a Medical Certificate stating the applicant was suffering from [the same condition] and was unfit for work/school from [date] October to [date] October 2015 inclusive, as well as a copy of a [prescription]. The representative also provided copies of the documents in support of the application previously provided to the Department.

16. The Tribunal granted the request and rescheduled the hearing to 16 October 2015.

17. The applicant appeared before the Tribunal on 16 October 2015 in Sydney to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant’s representative did not attend the hearing.

18. At the start of the hearing the applicant told the Tribunal he felt well enough to proceed. The Tribunal took a short adjournment during the hearing after which the applicant again confirmed he was well enough to proceed.

19. During the hearing the applicant told the Tribunal his agent had helped him draft his written statement. The Tribunal noted the applicant’s visa application form indicated the applicant speaks and reads and writes English and Bengal. The applicant confirmed he was able to read the documents and knew what he was signing. On questioning if the applicant wished to add or change anything in the documents, the applicant provided updated residential information and told the Tribunal his father has continued to call him and ask him to return to Bangladesh and help him. The applicant told the Tribunal he had nothing further to add or change to his visa application forms or his written statement.

20. During the hearing the applicant told the Tribunal that prior to leaving Bangladesh he had resisted his father’s wishes for him to become involved in his father’s religious and political activities with political parties, and that he still speaks to his father once or twice a month on the telephone and his father continues to ask him to return to Bangladesh and help him. He told the Tribunal he speaks more regularly to his mother who continues to advise him not to return to Bangladesh, because of his father.

21. The applicant told the Tribunal that he feared returning to Bangladesh because his father is an extremist and has been pressuring the applicant to return to Bangladesh and join him in his support for Hifazat-e-Islam and his fight against local boys who have beaten and threatened his father a number of times, and who threatened to kidnap and kill the applicant if he returns to Bangladesh. The applicant told the Tribunal he fears that if he returns to Bangladesh the local boys will kill him because they are angry with this father due to his father’s support for the BNP and then Jamaat-e-Islami and the opposition leaders convicted by the International Crimes Tribunal, and his father’s current support for Hifazat-e-Islam and his political activities against the Awami League.

22. FINDINGS AND REASONS

    Nationality

23. On the basis of the applicant’s consistent information provided to the Department and the Tribunal about his place of birth and citizenship of Bangladesh, the Tribunal finds that the applicant is a national 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 Tribunal discussed with the applicant his background, education, and family composition, as well as his father’s religious and political activities in Bangladesh, and the violence and beatings his father has experienced and the threats made against his father and his family, including against the applicant should he return to Bangladesh.

25. The Tribunal raised a number of concerns about the differences between the applicant’s oral evidence, and his written statement of claims, and the documents he had provided in support. The Tribunal also raised its concerns about the credibility of some of the applicant’s claims and his delay in making his protection visa application. 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 these findings are discussed below.

26. During the hearing the Tribunal noted that the applicant’s written statement states that his father is a supporter the BNP, yet the applicant had told the Tribunal that after 2003 his father moved from the BNP and joined Jamaat-e-Islami in 2005, which is a group related to the BNP. The applicant had then told the Tribunal his father later became involved in Hifazat-e-Islam. The Tribunal raised its concerns that the applicant’s written statement made no mention of his father joining Jamaat-e-Islami or his activities with Hifazat. In response the applicant told the Tribunal Jamaat-e-Islami was in coalition with the BNP so his father continues to identify as a supporter of the BNP. The applicant also told the Tribunal Hifazat was established in 2013, after the applicant left Bangladesh in 2009, so he did not see his father with Hifazat, and whenever anyone asked his father he would say he was a supporter of BNP, as his father could get some advantage from that. In isolation, the Tribunal would not draw adverse conclusions from the applicant’s failure to mention the political parties he later referred to, given the applicant’s explanation and the political and religious relationship between the BNP and Jamaat-e-Islami and Hifazat-e-Islam. Nevertheless in light of the other credibility concerns mentioned below, the Tribunal is not satisfied the applicant has told the truth about his father’s activities, and it is concerns the applicant has exaggerated and fabricated his father’s political activities in order to strengthen his application. 

27. During the hearing the Tribunal raised its concerns that the applicant had told the Tribunal that since 2005 his father was always pushing the applicant to get involved and come and pray with him and other people involved in his political party, and to attend party meetings and lectures, yet the applicant failed to mention this in his written statement. In response the applicant told the Tribunal he was scared to tell his agent about this, he was scared to tell his agent that his father was an extremist. On further questioning the applicant told the Tribunal he was scared to tell his agent his father was an extremist because at the end of the day he is his father.

28. The Tribunal is not persuaded by the applicant’s response. While the Tribunal accepts the applicant may have not wished to describe his father as an extremist, the Tribunal notes his written statement does state he fears being forced to take part in political conflicts by his father. In these circumstances the Tribunal would expect someone in the applicant’s position to have included in their statement of claim information about their father’s attempts to get him involved, if these attempts had occurred as he later claimed, over a number of years prior to the applicant leaving Bangladesh. The Tribunal considers the difference between the applicant’s oral evidence and written statement reflects poorly on the applicant’s credibility and the reliability of his evidence.

29. During the hearing the applicant told the Tribunal his father was beaten in January 2013, and attacked by police during a street protest in March 2013, and between March and December 2013 his father was bumped and pushed when he travelled to the mosque, and asked for money and for money from the applicant in Australia, and was attacked badly during a street meeting or protest in December 2013 where his wallet and telephone was taken, and that the applicant’s [sibling] was stopped on the way to school and asked about the applicant at the finish of 2013. The Tribunal raised its concern the applicant’s written statement did not refer to these incidents.

30. While the Tribunal noted the written statement of claims states his father was constantly getting into trouble with the local law enforcement authority as well as local Awami League supporters, and that his business premises were smashed and ransacked on numerous occasions, and referred in more detail to his father’s participation in a street demonstration after the sentences handed down by the International Crimes Tribunal in February 2013 and the subsequent visit by a group of men to his father’s shop, the Tribunal raised its concerns the applicant’s written statement did not specifically refer to the incidents he told the Tribunal about. In response the applicant told the Tribunal the written statement was made by him giving the information to his agent. He told the Tribunal he found out a lot of the information through his mother. After the statement was made he then received the documents he later submitted in support, and he got that further information through his mother who sent the documents without his father knowing, and with the help of the applicant’s [relative].

31. During the hearing the Tribunal also noted that the applicant had told the Tribunal that in 2013 five or six boys saw the applicant’s father leave his store by the back door, and the next day they went to the store and threatened a salesperson working in the store. They threatened the salesperson and put a pistol on the table and said give us a certain percentage of the profits. They also broke the glass door to the store. The Tribunal raised its concerns that the applicant’s oral evidence was different to his written statement which claims that a few days after the street demonstration in 2013, a group of men barged into his father’s shop, and called the applicant’s father “Razakar”, and placed a pistol on the table and demanded his father fork out a certain percentage of his monthly business profits as Jizya, and if he wanted to avoid paying the Jizya and live a peaceful life he should silence his voice and stop making comments on the verdicts. This group of individuals warned his father not to report to Police as they were sent by powerful individuals who have connections with officials in the law enforcement department and should his father dare to get the police involved, the applicant’s [siblings] would be in danger.

1. In response the applicant told the Tribunal a few days after the protest, his father and a group of his political leaders went to his father’s shop through the back door and after their meeting finished they went out and one of the local boys saw them. The next day the local boys went to the shop and told the salesman to make a telephone call to the owner (the applicant’s father), and put the call on the loud speaker, and said “this is a pistol I am showing to the salesman”, and that they knew it was his shop, and to tell his salesman to give them the money he has now, and to give them Jizya every month. The Tribunal raised its concern the applicant had not mentioned these people forced the salesman to make a telephone call to his father prior to the Tribunal raising its concern. In response the applicant told the Tribunal he forgot to mention this. The Tribunal noted it appeared to be a strange thing to do, to make the salesperson make a telephone call to his father in order to threaten him for money, instead of approaching the applicant’s father directly. In response the applicant told the Tribunal his father was not at home at the time and was busy at the time with the street protest meeting, but that two days earlier those people saw his father with his political leaders come out of the shop. When questioned how the applicant knows his father was seen leaving the shop the applicant told the Tribunal his mother told him, and that his father had told his mother. His father had called his mother that night and told her to look after the kids as he had been seen by someone who looked suspicious.

2. The Tribunal is not persuaded by the applicant’s response to its concerns about the differences between his oral evidence and his written statement. The Tribunal does not accept the later receipt of the documents in support explains these differences, or that the applicant forgot that the threats made to his father from the men who visited his shop were made over the telephone. The Tribunal is concerned the applicant changed his oral evidence in order to address the issue raised. The Tribunal finds the applicant fabricated his further oral evidence about this incident in order to address the issue raised by the Tribunal. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

3. During the hearing the Tribunal also noted the applicant’s written statement states that after this incident, for the sake of the safety of the applicant’s mother and siblings, his father has not proactively fought for those who are wrongly accused, but he had been discreetly making contacts with BNP parliament members for support and help. The Tribunal raised its concerned that the applicant had told the Tribunal his father had attended public meeting and been injured, after February and March 2013. In response the applicant told the Tribunal the big Hifazat-e-Islam rally was in March 2013 and after two or three days his father returned home.

4. During the hearing the applicant told the Tribunal his father tried to report the incidents of threats and violence and abuse to the police but they refused to take anything or take a report until his father was accompanied to the police station by his local leaders in December 2013. The Tribunal raised its concerns that one of the documents the applicant provided to the Tribunal was an Application for entry a General Diary with the seal of Duty Officer at [a] Police Station and dated [in] May 2013. In response the applicant told the Tribunal his father went to the police station every now and then and was told the police would not take anything from his father until he was accompanied by a group of people. The applicant told the Tribunal his father was bashed in March 2013 and went to the police station on the same day and the police refused to take the case and after two days his father returned with a group of people and the police took the report. He told the Tribunal that unless his father was accompanied by a group of people the police would not take a report.

5. The Tribunal noted the document provided by the applicant with the heading [Organisation 1] states the applicant’s father attended a public gathering organised by [Organisation 1] [in] May 2013. The document states “He became serious injured in mentioned gathering for massive torture by attack of RAB-police and ruling party terrorists. At present he is not recovered fully. He is fully trying to attend in various Islamic meetings and gatherings for upholding of flag of Islam.” The Tribunal also noted the General Diary report dated [in] May 2013 noted above refers to this incident and that the applicant’s father was seriously injured at that time. The Tribunal also noted the medical report provided by the applicant was also dated [in] May 2013. The Tribunal raised its concerns about the applicant’s credibility and the reliability of the documents he had provided as the applicant had not mentioned any incident in May 2013 in his oral evidence. In response the applicant told the Tribunal he had mixed up March 2013 with May 2013 and that [Organisation 1] had their biggest street meeting [in] May 2013 and that his father was beaten by the police and local people at that time, and went to the police the same day and they would not take his report, so he then returned two days later to the police station with his leaders to make the report.

6. The Tribunal is not persuaded by the applicant’s response to its concerns. The Tribunal notes the applicant’s written statement refers to the street demonstration after the sentences were handed down by the International Crimes Tribunal in February 2013, and that the applicant repeatedly referred to March 2013 during his initial oral evidence. The Tribunal considers the difference between the applicant’s initial oral evidence and the information in the documents he has provided raises considerable doubts about his credibility and the reliability of the documents he has provided.  

7. During the hearing the Tribunal raised its concerns about the credibility of the claims that the applicant’s father was threatened on a number of occasions in order to extract money from him. While the Tribunal noted the applicant’s written statement claims the applicant’s father was threatened a number of times, and that threats of harm were made in relation to the applicant’s [siblings] in order to stop his father reporting the matter to the police, the Tribunal also noted the applicant’s oral evidence that his father received threats that the applicant would be kidnap and killed if he returned to Bangladesh, in order to extort money from the applicant’s father. The applicant told the Tribunal his father did not pay any money in response to the threats. The Tribunal noted the applicant had told the Tribunal his father was a businessman and had two stores and owned a building and lived off that income. The Tribunal raised its concerns about the credibility of the claim that the applicant’s father was threatened that the applicant would be kidnapped and harmed if he returned to Bangladesh, in order to extract money from him, but was not threatened with harm to his more obvious assets or accessible family members. In response the applicant told the Tribunal Bangli Islamic culture was that the oldest son should look after the business when they mature, and the applicant’s father had told people that if he dies his oldest son, the applicant, would take over his position.

8. While the Tribunal accept Bangli and Islamic cultures often favour eldest sons with inheritance preferences, the Tribunal does not accept that explains the nature of the threats made to the applicant’s father. The Tribunal does not accept the applicant’s claims that his father was threatened that the applicant would be kidnapped and killed if he returned to Bangladesh, in order to extort money from his father, as credible. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

9. The Tribunal also raised its concerns about the credibility of the claim that the applicant’s father had been beaten a number of times and continues to receive threats, yet remains living in the family home, and has not moved in order to avoid the threats and the threatened harm. In response the applicant told the Tribunal his father owned the building his family lived in and did not want to move. He told the Tribunal most of his father’s political friends know him very well and come to his home and support his father and tell him they will look after him. The Tribunal notes these friends have not been able to stop the incidents that the applicant claims have occurred and continued to occur. The Tribunal considers the applicant’s claims that his father has been assaulted and seriously injured on a number of occasions, and that he has been threatened and had his businesses disrupted, and continues to receive threats that the applicant will be kidnapped and killed if he returns to Bangladesh, yet continues to reside with his family in their family home, not credible. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

10. During the hearing the Tribunal also raised its concerns about the applicant’s delay in making his protection visa application. The Tribunal noted the applicant had arrived in Australia in 2009, and that his father had been trying to get him involved with his religious and political activities for a number of years prior to that, and that the threats in relation to the applicant being kidnapped and killed if he returned to Bangladesh began soon after March 2013, yet the applicant did not make an application for a protection visa until January 2014. In response the applicant told the Tribunal he had initially had a [temporary] visa, and had planned to progress to permanent [residence], but once things changed and he consulted with his mother and agent, he became aware of the protection visa option. The Tribunal noted the applicant’s written statement indicates the applicant arrived in May 2009 and in March 2011 he made a subsequent [temporary] visa application which was refused. He then applied to the Migration Review Tribunal and his subsequent application for judicial review was dismissed [in] December 2012. The Tribunal noted the applicant did not make his protection visa application until over a year after the court dismissed his application for judicial review. In response the applicant told the Tribunal he thought he would get his [temporary] visa back as he had a valid reason to get it back but unfortunately he did not get it back. 

11. The Tribunal is not persuaded by the applicant’s response to its concerns about his delay in making his protection visa application. The Tribunal notes the applicant’s application for judicial review was dismissed [in] December 2012, more than twelve months prior to his application for a protection visa. The Tribunal considers the applicant’s delay in making his protection visa application reflects poorly on the applicant’s credibility and the reliability of his evidence and claims that he fears returning to Bangladesh.

    Does the applicant have a well-founded fear of being persecuted?

12. In order to meet the criterion for a protection visa under s.36(2)(a), the applicant must satisfy the Tribunal that they are a person in respect of whom 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). The convention requires, amongst other things, that the applicant’s fear of persecution 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.

13. For the reasons given above 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 Tribunal is also not satisfied the contents of the documents the applicant has provided in support of his application are true and reliable, therefore the Tribunal gives them little weight.

14. On the evidence before it the Tribunal does not accept the applicant’s father was a supporter of the BNP, or that his father moved from the BNP and joined Jamaat-e-Islami in 2005 and later became involved in Hifazat-e-Islami. The Tribunal does not accept the applicant’s father has been pressuring the applicant over a number of years to support and become involved with his religious and political activities. The Tribunal does not accept the applicant’s father participated in street protests and demonstrations or that he was getting into trouble and threatened and injured by the RAB or the police or the local law enforcement authority or local Awami League supports or local boys. The Tribunal does not accept his father’s business premises were smashed or ransacked or that he was called “Razakar” or that he or his salesperson was threatened with a gun or asked to pay Jizya. The Tribunal does not accept the applicant’s father was threatened and warned not to report these incidents to the police or that the police accused the applicant’s father of inciting violence in public and warned him to refrain from criticizing the government in public and to stop clamouring for the implementation of sharia law. The Tribunal does not accept the applicant’s father is an extremist or that he has a profile and is of adverse interest to any law enforcement authorities, or the RAB or police, or Awami League supporters or local boys.

15. The Tribunal does not accept the applicant has a political opinion in support of the BNP or Jamaat-e-Islami or Hifazat-e-Islami, or that there is a real chance the applicant’s father will try to recruit or involve him in any religious or political activity if the applicant returned to Bangladesh. The Tribunal does not accept there is a real chance the applicant would be imputed with a political opinion of support for the BNP or Jamaat-e-Islami or Hifazat-e-Islami due to his relationship with his father. The Tribunal does not accept there is a real chance the applicant will be kidnapped or harmed by people who are angry with his father or people who are trying to extort money from his father.

16. The Tribunal does not accept there is a real chance the applicant will be threatened or kidnapped or injured or killed if he returned to Bangladesh. The Tribunal does not accept there is a real chance the applicant will be deprived of his liberty, tortured, or suffer degrading treatment or death if he returned to Bangladesh. The Tribunal does not accept there is a real chance the applicant will suffer serious harm, or harm of any kind, if he returned to Bangladesh.

17. The Tribunal finds that the applicant is not a witness of truth and it is not satisfied there is a real chance that the applicant will suffer serious harm, or harm of any kind, for the reasons he has claimed, if returned to Bangladesh. Therefore the Tribunal finds the applicant does not have a well-founded fear of persecution.

18. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

    Complementary Protection criterion

19. 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). An applicant meets this criterion if he or she is a non-citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations because the Tribunal 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’).

20. As noted above, the Tribunal finds that the applicant is not a witness of truth and it does not accept the applicant’s father was a supporter of the BNP, or that his father moved from the BNP and joined Jamaat-e-Islami in 2005 and later became involved in Hifazat-e-Islami. The Tribunal does not accept the applicant’s father has been pressuring the applicant over a number of years to support and become involved with his religious and political activities. The Tribunal does not accept the applicant’s father participated in street protests and demonstrations or that he was getting into trouble and threatened and injured by the RAB or the police or the local law enforcement authority or local Awami League supports or local boys. The Tribunal does not accept his father’s business premises were smashed or ransacked or that he was called “Razakar” or that he or his salesperson was threatened with a gun or asked to pay Jizya. The Tribunal does not accept the applicant’s father was threatened and warned not to report these incidents to the police or that the police accused the applicant’s father of inciting violence in public and warned him to refrain from criticizing the government in public and to stop clamouring for the implementation of sharia law. The Tribunal does not accept the applicant’s father is an extremist or that he has a profile and is of adverse interest to any law enforcement authorities, or the RAB or police, or Awami League supporters or local boys. The Tribunal does not accept the applicant has a political opinion in support of the BNP or Jamaat-e-Islami or Hifazat-e-Islami, or that there is a real risk the applicant’s father will try to recruit or involve him in any religious or political activity if the applicant returned to Bangladesh. The Tribunal does not accept there is a real risk the applicant would be imputed with a political opinion of support for the BNP or Jamaat-e-Islami or Hifazat-e-Islami due to his relationship with his father. The Tribunal does not accept there is a real risk the applicant will be kidnapped or harmed by people who are angry with his father or people who are trying to extort money from his father. The Tribunal does not accept there is a real risk the applicant will be threatened or kidnapped or injured or killed if he returned to Bangladesh. The Tribunal does not accept there is a real risk the applicant will be deprived of his liberty, tortured, or suffer degrading treatment or death if he returned to Bangladesh. The Tribunal does not accept there is a real risk the applicant will suffer significant harm, or harm of any kind, if he returned to Bangladesh.

21. 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 subjected to torture, or cruel or inhuman treatment or punishment; or subjected to degrading treatment or punishment, if he is returned to Bangladesh, now or in the foreseeable future.

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

    CONCLUSION

1. 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.

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

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

   Chris Thwaites
   Member  8 February 2016

   
   

   ATTACHMENT: RELEVANT LAW

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.

   Refugee criterion

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. 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.

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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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

15. 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’).

16. ‘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.

17. 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

18. 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.