1415480 (Refugee)

[2016] AATA 3118

1415480 (Refugee) [2016] AATA 3118 (21 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415480

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Tania Flood

DATE:21 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 21 January 2016 at 3:38pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

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

3. The applicant appeared before the Tribunal on 15 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.

4. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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).

7. 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.

8. 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’).

9. 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.

10. The issues in this case are whether there is a real chance the applicant will suffer serious harm on return to Bangladesh for a Convention reason or whether 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 following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Summary of claims

11. In his application for a Protection visa, the applicant makes the following claims:

12. He did not disclose the complete details of his escape from Bangladesh on arrival in Australia because he did not trust that the information would be kept private and confidential.

13. From prior to his birth, his father was a member of the Bangladesh National Party (BNP).  His father’s involvement with the BNP included promoting the BNP in [Village 1] by attending rallies and attending meetings where he would be updated about political events, distributing flyers.

14. His father was compelled to be involved in politics due to the high level of corruption in the country. Without a political alliance, people are prevented from accessing government support and those with political clout are able to extort, abuse and harass those who are not backed by politics.  By supporting the BNP his father ensured that when the BHP was in power they would assist them and prevent extortion attempts from opposing political parties.  As his father became older he stopped attending BNP events because of the difficulties in doing so.  Regardless he retained his BNP values and ideology.

15. In around 2008 his [brother] and he decided to join the BNP party.  They began attending meetings and support rallies to re-establish their family’s identity in the BNP.  His brother and he strongly believed in the religious values of the BNP and its opposition to secularism in Bangladesh.  They believe that Bangladesh should maintain its conservative Islamic identity.

16. Around December 2008 the Awami League won more than 250 of the 300 seats in parliament.  Members of their party started to operate with impunity, secure in their knowledge their influence guaranteed protection from the authorities.  People who had actively supported the BNP were targeted in revenge.

17. Overtime many BNP members and supporters were extorted, harassed and harmed.  Some even disappeared, presumed killed.  Locals in Jessore warned him that because of his father’s strong history of involvement with the BNP they too would be targeted. Nevertheless he maintained his connection to the BNP and attended events as was required.

18. In about late 2009 he was awoken by men knocking on his door and calling out his name.  He warned his family not to open the door and to remain silent.  The men outside woke the neighbours who came to see what was happening.  The men then left.  As he had no enemies in his local area he assumed he was being targeted because of his BNP involvement.

19. Thereafter he stopped attending BNP events and avoided politics given that the BNP had very little power.  Nobody came to his house for the next couple of years but he remained fearful and it was upsetting to him to avoid all contact with the BNP and his political ideologies.

20. In or around May 2012 key figures from the main Islamist party Jamaat-e-Islami were charged with war crimes by the government tribunal for alleged collaboration with Pakistan during the 1971 war of independence.  Jamaat-e-Islami is a close political ally of the BNP and many BNP members believed that this process was designed to weaken the BNP’s power base before the upcoming elections which were expected to be held sometime at the end of 2013.

21. He and his brother once again attended BNP meetings and rally’s because he believed in the innocence of the men from Jamaat-e-Islami.  He felt that the Awami League was planning to erode the Islamic identity of Bangladesh.  Through his involvement he became known in [Village 1]. Tensions mounted between the BNP and Awami League supporters but he was never in a situation which escalated to violence.

22. In around September 2012 he was once again woken by men shouting and knocking at his door.  They were shouting derogatory terms about the BNP and accusing him of being a Pakistani supporter and that he should be hanged for Pakistan’s crimes during the liberation war.  He was angry and shouted back.  The men outside shouted that if they ever saw him at another BNP rally they would kill him.

23. He knew he could no longer remain in [Village 1] and he decided to leave the area.  Over the next few months, he began to reside at the homes of different friends and relatives throughout Khulna Division.  In or around mid-September 2012 the men once again came to his family home and his parents told them they did not know where he was.  They abused his family for being BNP before leaving.

24. The fact they had searched for him again instilled great fear in him and he decided to leave Bangladesh.  He made arrangements to depart the country with the assistance of a people smuggler.  His family and friends assisted him with finances to do so.

25. In late November 2012 he travelled to Dhaka and departed Bangladesh through Shah Jalal International Airport using a fraudulent passport provided by the people smuggler. On or around [a date in] December 2012 he arrived in Australia illegally by boat having transited through [another country].  After contacting his family he was told that the Awami League cadre’s had begun targeting his [brother] for his involvement with the BNP in the same manner they targeted him.  His brother also fled to [a different country].

26. He fears he will be harmed, mistreated, detained, tortured, abused and/or killed if he returns to Bangladesh by members of the Awami League because of his membership of a particular social group – individuals who have held information (the witnessing of human rights abuse) adverse to the interests of the Awami League in Bangladesh.  He has information that could expose the Awami League’s corruption and is compelled to use this knowledge at further BNP rallies.  Further there is a real risk he will suffer significant harm from the Awami League.

27. In a further submission dated 1 December 2015 the following additional information and claims are provided:

28. The applicant’s father’s role in the BNP culminated in him being the BNP [Official A] in [Village 1].

29. Following the completion of grade [number] the applicant worked as a farmer on his father’s [farm] and in around 2005 he purchased and began operating a small [business] in [Village 1].  When possible he also continued assisting his father on the [farm].

30. The applicant did not have a formal position within the BNP other than that of ‘member’ however he was involved in assisting the BNP [Official A] for the local region, [Mr B].

31. The applicant was more involved and more vocal in the BNP than his [brother].  Also as he was regularly involved with assisting [Mr B] he developed a more public association with the BNP.  The applicant became well known as the most active BNP family member.  This reputation developed regardless of the fact the applicant did not hold a high position or undertake significant duties for the BNP.

32. By around 2011 the applicant’s fear of being harmed by the Awami League had increased and he ceased operating his [business] as he feared that Awami League members would identify him and harm him.  He returned to full-time work as a farmer with his father.

33. Overtime the Awami League has increased their power in Bangladesh and [Village 1] and due to increased political tension and fear of harassment the applicant’s [other] brother also fled Bangladesh in late 2014 to [a different country] where he remains.

34. It is submitted that initial statements made by individuals seeking asylum should not be taken as conclusive claims.

35. It is submitted the applicant has a well-founded fear of persecution on the basis of his membership of particular social groups – a) individuals who have held information adverse to the interests of the Awami League/political parties in Bangladesh and b) failed asylum seekers.  Information is cited about a recent statement made by Sheikh Hasina regarding punishment for people who leave the country illegally and prison conditions in Bangladesh. 

36. It is not reasonable for the applicant to relocate within Bangladesh as he does not have relatives or close social ties outside of Khulna; he does not possess a high level of education nor significant work experience and as he is targeted by the ruling party he fears he will be identified and persecuted throughout Bangladesh.

37. There is also a real risk the applicant will suffer significant harm if removed from Australia to Bangladesh.

38. The Tribunal should exercise power under s.415(2)(d) of the Act to set aside the Delegate’s decision and substitute a new decision to grant the applicant a Protection (Class XA) visa.

39. Attached to the submission is an affidavit from the applicant’s father attesting to his involvement in politics and membership of the BNP and a letter from the [Official C], of the BNP in [district deleted], Jessore attesting to his membership of the BNP.

    Country of reference

40. A copy of a Bangladesh Birth Certificate for [the applicant] with birth date [specified] appears on the Department file which is consistent with the applicant’s claimed identity and nationality.  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.

    Assessment of claims

    During the hearing the Tribunal discussed with the applicant his background, education, family composition and employment in Bangladesh, as well as the reasons he left Bangladesh and his fears of returning. 

    BNP Involvement

41. The applicant stated at hearing that his father was a member of the BNP.  Initially he said his father played no particular role in the organisation but after some prompting he confirmed that his father was the local BNP [Official A].  He could not describe the duties of the [Official A] but said his father spent time with [Official D] and other members of the party.  When asked why his father was involved in BNP politics he said that in Bangladesh it is necessary to align with a political party for practical purposes in order to get ahead in life.  He confirmed that his father, brothers and he were involved with the BNP for such purposes rather than for any strong ideological reasons.

42. When asked to confirm if his father was still the local branch [Official A] he said he was.    The Tribunal pointed out that he had previously told the Delegate that his father was no longer the [Official A], and that a different person had assumed that role.  When asked to explain this inconsistency he replied he sometimes has problems remembering.  The Tribunal enquired whether his family in Bangladesh were currently experiencing any difficulties for reason of their political involvement and he said they were not having any real problems.

43. The applicant informed the Tribunal he had personally become a member of the BNP in 2008.  When asked whether he has a membership card he said he did not and that in Bangladesh such things are not required.  When asked about his political involvement he said that he “walks around with [Official D] and attends meetings”.  He confirmed that he performs no other duties for the party. 

44. The Tribunal asked the applicant whether he had been continuously involved with the party since 2008 and he said he had.  Later, when prompted he confirmed he was inactive for a period of time from about 2009 until 2011.  Initially he said that this was due to him having to take care of his family.  Later he added that he was advised by the local [Official D] to stop his activities because he had encountered some problems with Awami League supporters.

45. The Tribunal pointed out that the statement which was provided for the purpose of this review from the [Official C] of BNP [district deleted] and the statement from his father use almost identical language and refer to him being “locally famous for his fresh politics”. The Tribunal indicated that it found it highly unusual that both statements would be worded so similarly. The applicant offered no explanation as to why the statements were so similar. The Tribunal also referred to country information, including advice from DFAT[1], which suggests that fraudulent documents are readily obtainable in Bangladesh. 

    [1] DFAT Country Report, Bangladesh, 20 October 2014

46. The Tribunal noted that the statements suggest he was involved in initiating new or unique political activities or strategies.  When asked to explain what he thought it meant he said they probably said that because he worked for the party and because he walked around with [Official D] he was locally famous.  The applicant made no claim to have initiated any new or “fresh” approach to local BNP politics despite being given the opportunity to do so at hearing.  Later in the hearing the applicant’s representative suggested that the use of the word “fresh” should not be interpreted literally and that it was more likely the authors meant he was a young politician. 

47. The Tribunal asked the applicant what he had to do to become a member of the BNP.  The applicant spoke in general terms about having to work hard for the party and following in the footsteps of his father.  The Tribunal again asked the applicant what process he needed to follow to become a member but received no further information.  The Tribunal pointed out that according to the Constitution of the Bangladesh Nationalist Party[2] a person must declare adherence to the party’s proclamation, constitution and programmes, complete a form, produce identification and pay a subscription fee.   The applicant did not offer any comment in response to this information.

    [2] Bangladesh Nationalist Party – BNP, Constitution, Amended up to 8 December 2009

48. The applicant was asked to tell the Tribunal what he knows about the history of the BNP but apart from stating the BNP is an Islamist party he demonstrated no knowledge of the party’s background, political philosophy or objectives.  He was then asked if he could tell the Tribunal about the four main principles of the BNP and again he referred to the need to follow Islam and spoke generally about the BNP being a good and honest party.  The Tribunal stated that it could be expected that a person who has taken out formal membership of the BNP would know that the four main principles of the party are: Belief in Almighty Allah, Nationalism, Democracy, and Socialism.

49. The Tribunal asked the applicant to describe the BNP flag but he stated he could not recall the detail.  He did indicate the colours are red and green.  The Tribunal put it to the applicant that it could be expected he would be familiar with the flag given it appears on party documents and members and supporters march beneath it at rallies.  The applicant offered no comment about this.

50. Speaking on the applicant’s behalf his representative submitted that the applicant’s apparent lack of knowledge of the BNP and the membership process can be put down to the fact that the applicant’s involvement is only at a grassroots level where the people, who are mostly uneducated and poor, are concerned largely with rural politics.  Further he said that his apparent lack of knowledge is also consistent with his claimed reasons for involvement in politics, namely for protection and advantage rather than political ideology. 

    Threats from Awami League members/supporters

1. The applicant was asked to describe the difficulties he encountered in Bangladesh arising from his membership of the BNP.  He said he was threatened a couple of times with the first time being in 2009.  He said people from the Awami League came to his house at night calling for him but they did not enter the house as the door was securely locked.  He said this incident was followed by a similar visit a couple of days later.  He then changed his evidence and said that the second incident occurred in 2011.  After that further incident when Awami League members again came to his house calling for him, his father told him it would be hard to continue living there.  He said he stayed at home for about a week and then went to stay with friends in different locations before leaving Bangladesh.  The applicant confirmed that nothing happened to him between 2009 and 2011.

2. The Tribunal pointed out that his written claims and oral advice to the Delegate state that the second incident took place in 2012 and not 2011.  By way of explanation the applicant stated that there is little difference between 2011 and 2012.  The Tribunal pointed out that his written claims state that the incident occurred in September 2012 which is nine months into 2012.  The applicant stated that he gets tense when thinking about his problems.  The Tribunal suggested that he has had a lot of time to think about these events and that issues with inconsistency have been put to him before and yet he still appears unable to consistently explain when these significant events occurred.  The applicant’s representative submitted that the applicant has difficulty remembering exact dates and that his claim to have been threatened in 2011 is not inconsistent with his arrival date in Australia in 2012. 

3. The Tribunal asked the applicant whether anything in particular prompted his decision to leave Bangladesh noting that his evidence does not suggest he was a high profile political activist who might be vulnerable to threats and attack from the opposition.  He replied that everyone knows he is a BNP supporter and that he has been told in the past to go back to Pakistan because his party is Islamist.  The applicant also stated that both of his brothers have now left Bangladesh because they too were targeted in a similar manner. 

   Future political involvement

4. The applicant was asked what political involvement he would resume if he has to return to Bangladesh.  He said that he cannot return to Bangladesh because he will be killed.  The Tribunal referred to submissions which indicate he claims he will expose Awami League corruption on return to Bangladesh and asked what he would do in that respect.  The applicant had no particular plans in mind but said he could certainly tell people about the misdeeds of the Awami League.  When asked if he had made any efforts to do so since being in Australia he said he had not.  When asked why not he said that he could not because the Awami League are in power in Bangladesh.  The Tribunal indicated that this response could suggest he would not attempt any such action if he returned to Bangladesh.  In reply he said that anything he did from here could potentially put his family at risk.  The Tribunal again asked why he would engage in such activity if he returns as the outcome for him and his family would surely be the same then.  The applicant said that at present his other brothers are living overseas as well so there is nobody at home to defend his parents.

5. The applicant was asked why he could not return to Bangladesh now given the passage of time.  He said that he would be killed on arrival because of his BNP association.  The Tribunal asked the applicant how long he was living with friends in different locations before he departed Bangladesh and he said it was for approximately 4 or 5 months.  The Tribunal pointed out that he has not claimed he was located by Awami League supporters during that time and asked why they would find him now if he returns.  He said that he was not found during those months because he was living in hiding.   When asked if he feared anything else on return he said he did not.

   Feared harm as failed asylum seeker and for illegal departure from Bangladesh

6. The Tribunal referred to the submission that he fears returning to Bangladesh as a failed asylum seeker and noted advice from DFAT which indicates that returnees are unlikely to face adverse attention on return for this reason.  The Tribunal noted that DFATs country report also refers to reports of the UK voluntarily returning 503 people to Bangladesh between 2012 and 2013 with none reportedly being ill-treated[3].  The applicant stated that nobody can say that nothing happens to these people. 

   [3] DFAT Country Report Bangladesh, 20 October 2014.

7. The Tribunal noted that DFAT’s country report indicates that there are penalties for people leaving Bangladesh illegally without a valid passport but that DFAT advises it is not aware of these penalties being enforced.  The applicant’s representative referred to the written submission dated 1 December 2015 which contains reference to a news article in which the Bangladesh Prime Minister is quoted as saying that some punishment is required for persons departing Bangladesh illegally[4].  It was submitted that this article which is dated 25 May 2015 is more recent than the DFAT and UK reports and therefore it should be given more weight.  The Tribunal pointed out that a further Daily Star news article dated 15 January 2016[5], which references the same Sydney Morning Herald article, appears to place more emphasis on the need to punish the traffickers rather than those assisted to leave the country illegally.

   [4] Sydney Morning Herald, Bangladesh PM Sheikh Hasina slams starving migrants as ‘mentally sick’ Traffickers Mus Get Harsh Punishment’, January 15, 2016 and reasons

8. The Tribunal considers the applicant has been inconsistent in the evidence he has provided in writing and orally to the Department and the Tribunal about relevant matters which causes concern about the truthfulness of his claims. 

9. Significantly, the Tribunal notes the applicant was unable to provide any plausible explanation as to why he told the Delegate his father was no longer the [Official A] of the local branch of the BNP but at hearing stated he was still acting in that role.  The applicant did not attempt to persuade the Tribunal that he had been re-instated as [Official A] despite being given the opportunity to do so. 

10. Further, the Tribunal considers the applicant has provided inconsistent information throughout the entire proceedings with respect to the timing of the claimed threats made to him by members or supporters of the Awami League.  For instance, the Delegates decision reveals that the applicant initially said that the first time he was threatened was in 2012 while claiming in writing and at a later stage during the interview with the Delegate that it was in 2009.  In writing he claimed that he was threatened a second time in September 2012 but told the Tribunal he was threatened again in 2011. 

11. While the Tribunal accepts the stress of giving evidence and the passage of time can affect a person’s ability to recall detail the Tribunal does not consider this accounts for the total contradiction regarding his father’s role in the BNP.  Further, the Tribunal does not consider it accounts for the difference of three years between the events discussed above as originally discussed with the Delegate.  Having been put on notice by the Delegate of the implications of such inconsistencies the Tribunal does not accept that the stress of giving evidence accounts for him providing yet a different account of the date of the second threat to the Tribunal.  The Tribunal considers these differences reflect poorly on the applicant’s credibility and on the reliability of his evidence.

12. The applicant claims he became a member of the BNP in 2008. As discussed with the applicant at hearing the BNP Constitution outlines the process required for qualification as a member of the party and it is clear from the applicant’s evidence that he has not followed this process. The Constitution also outlines the organisational structure of the BNP from local to national level and there is no indication that formal membership commences only at a certain level within this structure. As to why he does not have a membership card, the Tribunal does not accept the applicant’s claim that membership records are not required as the Constitution states that the list of members is preserved at the local and national level.

13. The applicant has produced statements from [Official C] of the BNP in [district deleted] and his father attesting to him being an active member of the BNP.  The Tribunal considers it highly unlikely that statements prepared by two different persons, who have an entirely different relationship to the applicant, would be almost word for word the same in content.  The Tribunal considers the statements are contrived and for this reason the Tribunal has doubts about the genuineness of the statements.  The Tribunal has given no weight to these statements.

14. The Tribunal does not accept that the applicant’s political involvement at only a grassroots level explains his total lack of knowledge of a party he claims to have obtained formal membership of and in which his father has a long history of involvement.  Whilst the Tribunal accepts that the applicant, with his limited education and rural background, may not be well placed to articulate party policies and platforms in detail it nevertheless considers he would be able to describe, at a minimum, the party flag and some of the key principles on which the party stands.  Further, the applicant offered no detailed explanation of the type of activities he claims to have been actively involved in other than repeatedly stating that he spends time walking around with the [Official D] and attending meetings. 

15. The Tribunal acknowledges the submission made by the applicant’s representative at hearing that his apparent lack of knowledge of the BNP could also stem from his stated reasons for joining the party, namely the need for protection and a desire to get ahead rather than any strongly held political ideology.  Nevertheless, given his claims to have formerly joined the party, to have been an active participant in meetings and to maintaining regular, personal contact with [Official D] the Tribunal considers he could be expected to have absorbed a greater level of knowledge of the party than demonstrated. The Tribunal has had regard to the applicant’s claims to have been actively involved in politics from 2008 to 2009 before taking a break until 2011 or 2012 when he again resumed his political involvement.  The Tribunal acknowledges the length of his claimed involvement in political affairs but does not consider this overcomes or accounts for his almost total lack of knowledge of his party.

16. Given the above concerns, together with the applicant’s lack of political activity in Australia, the Tribunal is not persuaded the applicant intends to engage in any political activity in Bangladesh, or that he intends to expose any misdeeds of the Awami League to the media.  The Tribunal is not persuaded that his inaction to date is due to fears that his parents will be harmed.  If this is the case, then the applicant would surely fear such ramifications on return to Bangladesh and similarly refrain from any activity of this kind which is likely to bring harm to his family.  Whereas the applicant appeared to suggest that he would be in a position to protect them on return, the Tribunal notes the applicant claims to have fled the country himself in the face of such threats which indicates he believed he was unable to protect himself let alone his family. 

17. In view of the above, the Tribunal considers the applicant has not been truthful about his claims and has not found him to be a credible witness.  The Tribunal does not accept the applicant’s father has a long history of involvement with the BNP or that his father was, or is, [Official A] of the local BNP branch.  The Tribunal does not accept that the applicant’s brothers were similarly involved in politics or forced to flee Bangladesh for political reasons.  The Tribunal does not accept that the applicant himself was or is a member of the BNP or involved in any BNP political activities in Bangladesh or that he intends to engage in any political activity on return to Bangladesh.  Further, the Tribunal does not accept the applicant was ever threatened at his home by members or supporters of the Awami League or that such persons continue to have an interest in his whereabouts with a view to harming him for the reasons claimed.

18. As noted above, and discussed at hearing, the DFAT Country Report assesses that people who return to Bangladesh, voluntarily or involuntarily, are unlikely to face adverse attention on their return.  Thousands of Bangladeshi’s enter and leave the country every day.  According to DFAT’s report, the return of failed asylum seekers is unlikely to be reported by airport authorities to the Department of Immigration and Passports, Ministry of Home Affairs or other agencies beyond the normal processes whereby returning nationals have their entry and exit from Bangladesh recorded.  Further, there are reports of large numbers of Bangladeshi’s being returned to Bangladesh from countries such as the UK, and the Tribunal was unable to find any reports of such persons being harmed.  While the Tribunal acknowledges the submissions made with respect to the comments made by the Prime Minister in May 2015 the Tribunal notes that more recent media articles indicate that the general attitude of the Bangladeshi government appears to be relatively sympathetic towards the people on the boats and that proposed actions by the authorities are targeted at organisers or facilitators of the people smuggling.  The Tribunal was unable to find any country information reports that indicate the Bangladeshi government is seeking to punish failed asylum seekers on their return to Bangladesh. 

19. With respect to the applicant breaching Bangladeshi law for leaving the country unlawfully, the Tribunal has some reservations about whether he in fact did so.  As put to the applicant at hearing the Tribunal questions his need to depart Bangladesh on a fake passport in the circumstances he claims.  For instance, the applicant claims he was only ever verbally threatened on two occasions at his home by non-state actors.  In any event, while the law which proscribes that leaving Bangladesh unlawfully can result in imprisonment up to a year or a fine, DFAT indicates that it is not aware of these penalties being enforced.  The Tribunal has found no other information to the contrary concerning enforcement of these laws.  While the applicant indicated at hearing that nobody can really know what happens to people returning to Bangladesh the Tribunal has relied on the information before it and is not satisfied that there is evidence to establish that the law would be enforced against the applicant on his return to Bangladesh thereby resulting in the applicant being imprisoned and harmed.

20. For the above reasons, having considered the applicant’s claims individually and cumulatively, the Tribunal does not accept there is a real chance the applicant will suffer serious harm if he returns to Bangladesh, now or in the foreseeable future, for any of the reasons he has claimed.  The Tribunal finds the applicant does not have a well-founded fear of persecution.  Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.

21. 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 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.

22. 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

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

    Tania Flood
    Member