1415561 (Refugee)

[2016] AATA 4024

1415561 (Refugee) [2016] AATA 4024 (12 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415561

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Linda Symons

DATE:12 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 12 June 2016 at 4:19pm.

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, arrived in Australia by boat [in] February 2013. He was detained and subsequently issued with a Bridging visa [in] May 2013.

3. The applicant applied to the Department of Immigration and Border Protection (the Department) for a Protection visa [in] May 2013 and the delegate refused to grant the visa [in] September 2014.

4. The applicant appeared before the Tribunal on 18 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

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

6. The issues that arise on review are whether Australia has protection obligations to the applicant under the Refugees Convention or under the complementary protection criterion.

   RELEVANT LAW

7. 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

8. 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).

   Complementary protection criterion

9. 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’).

   Section 499 Ministerial Direction

10. 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 –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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

11. The applicant’s claims in his application for a Protection visa lodged [in] May 2013 are summarised as follows:

    ·He was born on [date] in [Jessore], Bangladesh and is a citizen of Bangladesh.

    ·He is Bengali and a Muslim.

    ·His father had a [business] and he started helping him when he was about [age] years old.

    ·He left Bangladesh because his life was in danger and he fears returning to Bangladesh.

    ·For about 3 years prior to leaving Bangladesh he was a supporter of the Bangladesh Nationalist Party (BNP) and attended their meetings and participated in election campaigns.

    ·[In] January 2013, about [number] members of the Awami League Party (AW) went to his father’s place of business and asked for money and [products]. His parents are from [Country 1] and he believes that this played a role in them picking on his father and asking for money. He refused to give them anything and they got into an argument. They threatened to kill him, he pushed one of them and ran away. They threw an explosive device towards him but he was sufficient distance away not to get hurt.

    ·[In] January 2013, there was an attack on his house at about 1.00am. About [number] people were outside his house calling for him to come outside. He believes they were associated with the AL and did not go outside. They threw two explosive devices outside the front of his house and one of them poured petrol over his dog and burnt it. They shouted that if they find him they would burn him like a dog and then left.

    ·He was afraid after this. His father was also worried that he was not safe and made arrangements for his departure from Bangladesh. He left Bangladesh [in] February 2013 and travelled to [countries] and Australia.

    ·He fears that he will be killed by “the terrorist people” who attacked him because his father reported this incident to the Police. The authorities are corrupt and help these terrorist people.

    ·He would not be safe anywhere in Bangladesh. These “terrorist people” would find him and kill him.

12. The applicant has provided to the Department a copy of his Bangladeshi Birth Certificate and a barely legible Power of Attorney, in relation to some land, dated [in] May 1965. He has also provided documents in Bengali which he claimed were in relation to his family’s move from [Country 1] to Bangladesh and Police Reports but as he has not provided any English translations of these documents the Tribunal is unable to place any weight on these documents.

13. The applicant attended an interview with the Department [in] July 2014.During that interview, he re-iterated and expanded on his claims. He made new claims that are referred to below. One of his new claims was that in June 2014 his family was extorted by the AL who took two carloads of [products] and threatened to kill his father if he made a complaint to the Police. His migration agent submitted that his family’s [Country 1] origin would lead them to be perceived as outsiders and that owning a business as [Country 1] ‘refugee’ adds a further nexus to his political claims.

14. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated [in] September 2014.

15. On 15 February 2016, the Tribunal received written pre-hearing submissions from the applicant’s migration agent. At the end of the hearing, the Tribunal gave the applicant additional time to lodge further evidence and submissions. On 3 March 2016, the Tribunal received post-hearing submissions together with country information on [Country 1 nationals] in Bangladesh and a printout from the internet of security grills used on windows, doors and gates in Bangladesh.

    Nationality

16. The applicant claimed that his parents and grandparents were born in [Country 1] and that his parents moved to Bangladesh prior to his birth. He claimed that he was born and raised in Bangladesh and is a citizen of Bangladesh. He claimed that he is not a citizen of any other country. As the country information indicates that [Country 1] does not allow dual citizenship,[1] the Tribunal accepts that he is not a citizen of [Country 1] and is therefore unable to seek protection in [Country 1].

    [1] [Information deleted].

17. The Tribunal finds that the applicant is a citizen of Bangladesh, based on his Bangladeshi Birth Certificate, his evidence and his fluency in the Bengali language, and will assess his claims on this basis. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.

    Does Australia have protection obligations to the applicant under the Refugees Convention?

18. The applicant gave evidence to the Tribunal that his migration agent prepared his visa application based on his instructions. He stated that there was a mistake in his visa application. He stated that an incident occurred at 10.00pm and he incorrectly stated 1.00pm. When asked if he wished to make any other changes to his visa application, he answered no. When asked if everything else in his visa application is accurate, he answered yes. When asked if anything else happened after he lodged his visa application, he answered no.  

19. The Tribunal discussed with the applicant his background, his family, his involvement in politics in Bangladesh, his reasons for coming to Australia and why he fears returning to Bangladesh. There were inconsistencies between his oral evidence and his written evidence and between his evidence to the Department and his evidence to the Tribunal. Certain aspects of his evidence were vague and lacking in detail. Other aspects of his evidence were implausible. He made several new claims throughout the process. The Tribunal has considered the evidence given by the applicant and has concerns in relation to his credibility and the veracity of his claims. The Tribunal’s concerns are noted below.

20. In his visa application, the applicant claimed that for about three years prior to his departure from Bangladesh he was a supporter of the BNP, attended their meetings and participated in election campaigns in support of the BNP. During the hearing, the Tribunal asked him whether his father was a supporter or member of the BNP. He responded that he did not know but in his heart his father prefers the BNP. When asked what he did as a supporter of the BNP, his response was vague and lacking in detail. He stated that he used to be with the party and if there was something they wanted him to do he would join them. When asked if he could be more specific, he stated that if there was a meeting he was there and if they asked him to put up a banner he would. He stated that if there were marches or demonstrations he would join in. He stated that the meetings were held at the [location]. When asked how often the meetings were held, he responded that there was no specific itinerary and whenever they were organised he would go. When asked whether he did anything else in relation to the BNP, he answered no.

21. The Tribunal asked the applicant what happened at these meetings and he responded that people who were working for the party had a higher profile. He stated that they would attend meetings and say we need this and this. He stated that they asked them to stay by their side and vote for them. They promised that if they won the elections they would do this and that. When asked whether he did anything else in relation to his support of the BNP, he answered no.

22. The applicant’s evidence to the Tribunal in relation to his role in the BNP is different from the evidence he gave the Department during his interview [in] July 2014. He has filed with the Tribunal a copy of the Department’s Decision Record dated [in] September 2014 which indicates that during his interview with the Department [in] July 2014 he stated that one of his functions was to “maintain the harmony of public gatherings and ensure those meetings happened in a peaceful manner.” It indicates that when asked about his involvement in election campaigns, he stated that “there were rallies and meetings where I would encourage people to vote for the party. We used to walk to different places as part of the campaign.” When asked when these rallies and meetings occurred, he stated “about a month or so before I left Bangladesh.”

23. The Tribunal raised as an issue with the applicant the inconsistencies between his evidence to the Department and his evidence to the Tribunal in relation to his role in the BNP. He responded that he wanted to clarify his involvement with the BNP. He stated that he went to meetings, demonstrations and marches. He stated that the work he did was to organise these events. He stated that he worked in a team. He stated that if there was a meeting, they would organise what they were going to talk about and who would do it. He stated that he took responsibility for what he was asked to do. He stated that he put up posters on the road and would decide which route the demonstrations would go along and where the posters would be put up.

24. In post-hearing submissions, the applicant quoted from the Department’s Decision Record dated [in] September 2014 in relation to his evidence that he maintained “the harmony of public gatherings and ensured those meetings happened in a peaceful manner.” He responded to this by stating that they identified the purpose/agenda for meetings, the type of meeting and the leaders who would attend the meetings. He stated that if the meeting was with a local leader they set a different goal and if it was with a local and national leader they set a different goal. He stated that they would then set a budget for the meeting, organize transport to and from the meeting, food, water and sanitation facilities, medical facilities and contact the Police to organize security for people attending the meeting. He stated that, although he did not hold a position in the BNP, he had the “huge responsibility” to maintain harmony during the public meetings and ensure that they occurred in a peaceful manner.

25. This account of what the applicant did as a supporter of the BNP is very different from his previous evidence to both the Department and the Tribunal. During the hearing, he was specifically asked what he did as a supporter of the BNP and whether he did anything else in relation to the BNP and his responses are referred to in paragraph 20 above. The Tribunal finds it implausible that as a supporter of the BNP for 3 years he would have been involved in making decisions such as identifying the purpose and agenda for meetings, identifying leaders who would attend the meetings, setting budgets for the meetings, organizing facilities for the meetings, liaising with the Police to organize security for the meetings and that he would have been given the responsibility to main harmony during the meetings and ensure that they occurred in a peaceful manner.

26. The Tribunal would expect that these types of decisions would have been made by local leaders, office holders and senior members of the BNP and carried out by members of the BNP and not left to young, inexperienced supporters in the party. The applicant’s failure to mention these details previously, despite being asked specific questions about this issue and being given plenty of opportunities to respond, and the implausibility of these claims raise serious concerns about the credibility of these claims.

27. In his visa application, the applicant claimed that he participated in election campaigns in support of the BNP. He has filed with the Tribunal a copy of the Department’s Decision Record dated [in] September 2014 which indicates that during his interview with the Department [in] July 2014 he stated that “there were rallies and meetings where I would encourage people to vote for the party. We used to walk to different places as part of the campaign.” It indicates that he stated that the rallies and meetings occurred about a month or so before he left Bangladesh and that the elections he was campaigning for were the national elections that are held every five years. It indicates that the only election held in Bangladesh in 2012-2013 was the city corporation elections, six were for city corporations located more than 150 kilometres from the applicant’s home in Jessore district and only one election was held within 100 kilometres of the applicant’s home and that was for [location]. It indicates that the applicant made no reference to [location] despite being given ample opportunity to do so.

28. The country information indicates that national elections are held in Bangladesh approximately every five years and that national elections were held in Bangladesh in December 2008 and January 2014.[2] (The applicant’s evidence is that he left Bangladesh [in] February 2013 and that he was a supporter of the BNP for about three years prior to leaving Bangladesh).

    [2] CX316812: BANGLADESH; Results of past elections, Bangladesh: Bangladesh Electoral Commission.

29. The Tribunal asked the applicant a number of questions in relation to what he did to support the BNP but he made no mention of being involved in any election campaigns. When the Tribunal raised this as an issue with him, he responded that he joined the BNP after the elections. He stated that he was talking about maintaining the party as a group. He stated that organising demonstrations or marches does not end with the elections and that it happens all the time.

30. In post-hearing submissions, the applicant quoted from the Department’s Decision Record dated [in] September 2014 in relation to his evidence that he was involved in an election campaign one month before he left Bangladesh and the delegate not accepting that he was involved in election rallies in 2012. He responded to this by stating that he worked for the national election in 2008. He stated that although the places were far from his house he went to these places for political campaigns for the BNP. He stated that he did not mention this during his first interview with the Department and was afraid to provide details in his second interview with the Department because he thought the delegate may have asked him why he did not mention it in his first interview or may say that he provided inconsistent information.

31. This submission is problematic for several reasons. Firstly, if the applicant left Bangladesh [in] February 2013 and was a supporter of the BNP for about three years prior to leaving Bangladesh, he was not a supporter of the BNP in 2008 and could therefore not have worked for the BNP in the national election in 2008. Secondly, he gave evidence to the Tribunal that he joined the BNP after the election (presumably the election in 2008 as he was not in Bangladesh during the 2014 election). Thirdly, the places referred to by the delegate in the Department’s Decision Record dated [in] September 2014 are in relation to city corporation elections in 2012-2013 and not to national elections. The applicant’s evidence to the Department is that he participated in national elections. Fourthly, during his interview with the Department [in] July 2014, the applicant claimed that “there were rallies and meetings where I would encourage people to vote for the party. We used to walk to different places as part of the campaign.” The places referred to by the delegate were between 100 km to 150 km from the applicant’s home. The Tribunal does not accept that the applicant walked to places that were between 100 km to 150 km from his home to attend election campaigns as this is not plausible.

32. During the hearing, the Tribunal asked the applicant what he could tell the Tribunal about the policies of the BNP. He responded that they have an open market policy, nationality and that they are there to help the public. When asked to describe the flag of the BNP party, he responded that the emblem is a bunch of rice. When asked about the colours of the flag of the BNP party,[3] he stated that there is no specific colour and it is up to the people to do the colour. When asked to draw a picture of the BNP flag, he drew a picture of a hand holding a sheaf of paddy.

    [3] According to the BNP Constitution the upper half of the BNP Party flag is red and the lower half is green. An industrial wheel in black is in the centre of the flag and a gold sheaf of paddy rises from within the centre of the wheel with a white star on top of the paddy.( type="1">

33. The Tribunal raised as an issue with the applicant his poor knowledge of the BNP including the BNP flag and the colours of the flag and noted that this was not consistent with his claims. He responded that he is not well educated and he is not very knowledgeable. He stated that he did not think he should know the colour of the BNP flag. He stated that he liked the party and during his free time he worked for the BNP. The Tribunal noted that the country information indicated that supporters and members of the BNP carried the BNP flag with them when attending meetings, demonstrations and rallies and would expect him to have some familiarity with the BNP flag if he had attended BNP meetings, demonstrations and rallies. He responded that he remembered the emblem and drew the emblem. He stated that the colours of the flag did not register with him.

34. In post-hearing submissions, the applicant stated that he is a BNP supporter and in Bangladesh people do not need to know about the party’s ideology. He stated that their support is inherited from their older family members. He stated that although he did not hold any position in the BNP, he was a devoted worker for the BNP, had an active role in the local BNP and was a target of AL supporters.

35. The Tribunal accepts the applicant’s submission that in Bangladesh many people support the political party that their parents or older family members support. During the hearing, the Tribunal asked the applicant whether his father was a supporter or a member of the BNP. He responded that he did not know but “in his heart” his father prefers the BNP. This tends to indicate that his father was not an active supporter or member of the BNP although he preferred the BNP “in his heart”. It is therefore unlikely that the applicant became an active supporter of the BNP because he was following in his father’s footsteps. The Tribunal accepts that the applicant is not very well educated and that he is therefore unlikely to have a sophisticated understanding of the policies of the BNP. However, if he was attending meetings, rallies and demonstrations and, as he subsequently claimed, organizing them, the Tribunal would expect him to at least have some knowledge of the colours of the BNP party flag even if he was not able to describe the flag or draw it correctly. These factors raise serious concerns in relation to his claims that he was an active supporter and organizer in the BNP.

36. The applicant has not made any claims in relation to supporting the BNP whilst he has been living in Australia since 2013.

37. In his visa application, the applicant claimed that there were two incidents that occurred [in] January 2013 and [later in] January 2013 that led to him leaving Bangladesh and fearing to return to Bangladesh. In his visa application, he claimed that [earlier in] January 2013 about [number] members of the AL went to his father’s place of business and asked for money and [products]. He claimed that his parents are from [Country 1] and he believes that this played a role in them picking on his father to ask for money. He claimed that he refused to give than anything and they got into an argument. He claimed that they threatened to kill him, he pushed one of the men and started running away. He claimed that they threw an explosive device towards him but as he was some distance away he was not hurt.

38. The applicant has filed with Tribunal a copy of the Department’s Decision Record dated [in] September 2014. It indicates that during his interview with the Department [in] July 2014, he made new claims that a shelter on the property was set alight and the men left without taking any [products]. During the hearing, he made another new claim that the men pointed a gun at him but did not shoot. He stated that his father reported this incident to the Police but the Police did not respond. The Tribunal raised as an issue with the applicant the fact that he had not mentioned these issues in his visa application, that it would expect him to have mentioned it if it had occurred and that this raised concerns in relation to the credibility of his claims. He responded that he mentioned it during his interviews and that there must have been a “misinterpretation”. The Tribunal reiterated that it was not mentioned in his visa application. He responded that he did say it and maybe they missed it and did not write it.

39. The Tribunal does not accept that the applicant made these claims to his migration agent and his migration agent did not include them in his visa application. The applicant also claimed that there must have been a “misinterpretation” each time the Tribunal raised an issue with him. Whilst it is possible that an interpreter misinterpreted an aspect of the applicant’s evidence, the Tribunal does not accept that different interpreters on different occasions “misinterpreted” important evidence that was relevant to the applicant’s claims. Further, a misinterpretation is different from not mentioning claims at all.

40. The Tribunal also finds it implausible that, if members/supporters of the AL or a criminal gang went to the applicant’s father’s [business] for the purpose of extorting money and [products] and they were unable to get any money, they would have left without taking any [products] especially as the applicant’s evidence is that the [business] was left unattended when he left.

41. In his visa application, the applicant claimed that [later in] January 2013, at about 1.00am there was an attack on his house. He claimed that [number] people stood outside his house and called out to him to go outside. He claimed that as he believed they were associated with the AL he did not go outside. He claimed that they threw two explosive devices in front of his house and one of them poured petrol on their dog and burnt him. He claimed that they shouted that if they found him they would burn him like a dog and then left. During the hearing, he amended the time to between 10.00pm and 11.00pm.

42. The applicant gave evidence to the Tribunal that his father reported the first incident to the Police and the Police investigated it. He stated that when these people heard about the investigation, the second attack took place [later in] January 2013. This evidence is inconsistent with his earlier evidence to the Tribunal that when his father reported the first incident to the Police, the Police did not respond and his subsequent evidence to the Tribunal that there is no use in reporting anything to the Police because the Police will not do anything for them . It is also inconsistent with his evidence in his visa application that the Police are corrupt and help these people. This raises further concerns in relation to the credibility of the applicant’s claims.   

43. The applicant gave evidence to the Tribunal that when he looked outside the window he saw around [number] people some of whom he recognized as being involved in the first incident. He stated that they were carrying pistols. (This was not mentioned in his visa application). He stated that they threatened to kill him and demanded that he go outside. He stated that when he did not, they threw two bombs in front of his house. He stated that they then took his dog and burnt him alive. He stated that they threatened to do the same thing to him if they caught him. He stated that he left his house on the following day. He stated that his father reported this incident to the Police.

44. The Tribunal finds it implausible that the applicant’s father would have reported this incident to the Police in light of the applicant’s conflicting evidence. Firstly, if it was the case that his father reported the first incident to the Police, the Police investigated it and this lead to these people attacking their house and killing their dog, then a further report to the Police would have only aggravated the situation and invited more problems for his family. Secondly, if, alternatively, his father reported the first incident to the Police and they did not respond, there would have been no point in reporting the second incident to the Police.  

45. The Tribunal asked the applicant whether the two bombs caused any damage to his house. He responded that the house is made of brick. He stated that there was a mark on the wall where the bomb was thrown but nothing was broken. In his post-hearing submission, he stated that there is a security grill in his house and a heavy lock on his door and that is why the people from the AL could not enter his house and kill him. He did not indicate where the security grill was or provide a photograph of his house. He enclosed a printout from the internet showing photographs of security grills used on windows, doors and gates of Bangladeshi houses. The Tribunal places no weight on this evidence. The Tribunal finds his evidence in relation to two bombs causing no damage to his house to be implausible. The Tribunal also finds it implausible that [number] people, or, alternatively, [number] people, armed with bombs and pistols would not have been able to gain entry to his house if they wished to do so. This causes further concerns in relation to the credibility of his claims.

46. During his interview with the Department [in] July 2014, the applicant made a new claim that in June 2014 his family was extorted by the AL who took [carloads] of [products] and threatened to kill his father if he made a complaint to the Police. At the beginning of the hearing, the Tribunal asked him if anything else had happened after he lodged his visa application [in] May 2013 and he answered no. During the course of the hearing, the Tribunal asked the applicant a number of questions in relation to what other problems his family had in Bangladesh and whether these people had returned to his father’s house or workplace [later in] January 2013. He responded that after he came to Australia his mother told him that these people kept looking for him. When asked if anything else happened, he made a new claim in relation to his family being refugees in Bangladesh. (This is discussed below). When asked again whether there were any further incidents involving his family after he left Bangladesh, he responded that they threaten them “constantly”. When asked what kind of threats they make, he responded that they ask them where he is.

47. The Tribunal raised as an issue with the applicant the fact that he made no mention of these people extorting [products] and threatening his family in June 2014 to the Tribunal, despite being asked several times in different ways whether his family were involved in any further incidents after he left Bangladesh. He responded that he thinks it is a “misinterpretation”. The Tribunal noted that he was asked several times and given plenty of opportunities to tell the Tribunal about this incident but did not do so. He responded that he mentioned that his father had some problems. The Tribunal noted that his evidence was that they threatened his father and when asked what the threats were he responded that they asked his father where he was. He responded that they said “where is your son? We will find him.”

48. The Tribunal does not accept that there was a “misinterpretation”. The applicant’s response does not address the issue raised. The applicant’s failure to mention that these people extorted [products] and threatened his family in June 2014 is consisted with his earlier evidence to the Tribunal that nothing else happened after he lodged his visa application [in] May 2013. These inconsistencies in his evidence raise further concerns about the credibility of his claims.

49. In his visa application, the applicant claimed that his parents are from [Country 1] and he believes that this played a role in them picking his father to ask him for money. He has filed with Tribunal a copy of the Department’s Decision Record dated [in] September 2014. It indicates that during his interview with the Department [in] July 2014, he initially stated that his father’s business was targeted because “we were the only refugees from [Country 1] in that area. And they knew we couldn’t be able to protest if they did something bad to us. Another reason is I’m in the BNP.” It indicates that when asked why a pro-[Country 1] organization like the AL[4] would attack [Country 1] family’s business, he responded that “the terrorists (AL) are just interested in attacking people and getting money from them. The [Country 1] government doesn’t like that refugees went from [Country 1] to Bangladesh.” It indicates that he stated that he thought the reason the AL supporters went to his home [later in] January 2016 was because his father lodged a complaint with the Police after the first incident. It indicates that the applicant’s  migration agent submitted that his family’s [Country 1] origin would lead them to be perceived as outsiders and that owning a business as [Country 1] ‘refugee’ adds a further nexus to his political claims.

    [4] [Information deleted].

50. In the Department’s Decision Record dated [in] September 2014, the delegate did not accept that the applicant’s family history was the reason for the attacks against the applicant. He stated that he could not find any information to support the claim that Bangladeshi citizens of [Country 1] descent are specifically targeted due to their race. He referred to country information on [Country 1 nationals] living in Bangladesh (commonly referred to as [name]) facing significant [discrimination]. The delegate did not accept that the applicant or his family would be considered to be [of that group] as they do not speak [the dialect] and are Bangladeshi citizens.

51. In post-hearing submissions, the applicant provided the Tribunal with a printout of an abstract of an article written by a PhD candidate in [a journal] titled “[Title].” He submitted that Bangladeshi citizens of [Country 1] origin are a minority in Bangladesh. He stated that they are defenceless and are easy targets for “bad people”. He submitted that the government supports them and ‘close their eyes’ to illegal and immoral activities. He submitted that the media does not publish news because of the ‘government’s red (blood) eye’. He agreed that the AL government is pro-[Country 1]. He submitted that the delegate failed to understand the geo-socio political culture of the subcontinent. He submitted that he was targeted and attacked because he is recognized as a BNP worker and is a minority businessman. He did not make a claim that he is [of that group].

52. The Tribunal would expect that if the applicant’s father’s business was targeted because they “were the only refugees from [Country 1] in that area” and they knew that they would not be able to protest if they did something bad to them and/or because his family’s [Country 1] origin would lead them to be perceived as outsiders and/or because they owned a business as [Country 1] ‘refugee’ and/or because Bangladeshi citizens of [Country 1] origin are a minority in Bangladesh, the Tribunal would expect the applicant’s father and the applicant to have had ongoing problems in Bangladesh and not just from 2013 onwards. The applicant’s evidence is that his grandfather and father moved to Bangladesh in about [year] and lived there since then. During the hearing, the Tribunal asked the applicant when he or his family first had a problem in Bangladesh and he responded [earlier in] January 2013. This is not consistent with them being targeted for the above reasons.

53. During the hearing, the applicant made a new claim that he heard that the government of Bangladesh is taking away some properties owned by his father. He stated that whatever they own is not permanent because they are categorised as refugees in Bangladesh. He stated that his father is not entitled to anything. When asked why he is categorised as a refugee if he is a Bangladeshi citizen, he responded that he was born in Bangladesh and is a Bangladeshi citizen. He stated that his ancestors were not born in Bangladesh and that is why he is a son of a refugee.

54. The Tribunal indicated that it had difficulty accepting the applicant’s claims in view of the fact that his father owned a house, land that he had cultivated and a [business]. He responded that his grandfather owned property in [Country 1] and relatives owned property in Bangladesh. He stated that they exchanged ownership of their respective properties when his family moved to Bangladesh and their relatives moved to [Country 1]. He stated that his father inherited the properties from his grandfather. He stated that the properties have been taken by the government. He provided no explanation in relation to when or why the properties were confiscated by the Bangladeshi government. This claim was not made in his visa application.

55. The applicant’s migration agent provided the Tribunal with pre-hearing submissions in which she provided country information about the relationship between politics and violence in Bangladesh, State protection and internal relocation. She referred to the DFAT Country Information Report on Bangladesh dated 20 October 2014 and submitted, in part, as follows:

    While at least recognizing the alleged acts, the DFAT Report largely reads like a   reproduction of information such as would be provided by a Bangladeshi government                   official to their Australian counterpart. Without evidence, and given that the overall   tone of the Report is contradictory to the majority of independently substantiated   Reports on Bangladesh, we submit that little weight should be given to these words.  

56. The Tribunal has had regard to the country information and submissions provided by the applicant and his migration agent and other open source country information on Bangladesh. The Tribunal does not accept the applicant’s migration agent’s submission that the DFAT Country Information Report “largely reads like a reproduction of information such as would be provided by a Bangladeshi government official to their Australian counterpart” or that it is prepared “without evidence”. The DFAT Country Information Report on Bangladesh indicates that it “provides DFAT’s best judgment and assessment at the time of writing and is distinct from the Australian Government policy with respect to Bangladesh.” It also indicates that the Report “is based on DFAT’s on-the-ground knowledge and discussions with a range of sources. It takes into account relevant and credible open source reports. Where DFAT does not refer to a specific source of a report or allegation, this may be to protect the source.”

57. The Tribunal has considered the DFAT Country Information Report dated 20 October 2014 and the Department’s Policy Guidelines to the extent that they are relevant to this review.

    Findings

58. Having considered all the applicant’s claims and the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.

59. The Tribunal does not accept that the applicant or his father were supporters of the BNP or perceived to be supporters of the BNP. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal does not accept that the incidents that the applicant claims took place [early in] January 2013 and [later in] January 2013 did in fact take place. It follows that the Tribunal does not accept any of his claims that flow from these two incidents. The Tribunal does not accept that members/supporters of the AL or, alternately, a criminal gang extorted [products] and threatened the applicant’s family in June 2014. The Tribunal does not accept that members/supporters of the AL or, alternatively, a criminal gang are looking for the applicant with the intention of harming him.    

60. The Tribunal does not accept that the applicant is of adverse interest to the AL, its members/supporters, a criminal gang or the Bangladeshi authorities. It follows that the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm at the hands of the AL, its members/supporters, a criminal gang or the Bangladesh authorities if he returns to Bangladesh.

1. The Tribunal does not accept that the applicant or any member of his family is a [of a particular group] or is perceived to be a [of a particular group]. The Tribunal does not accept that the applicant or any member of his family is a refugee or is perceived to be a refugee in Bangladesh as they are citizens of Bangladesh. The Tribunal does not accept that the applicant or any member of his family are categorised as refugees in Bangladesh and are not allowed to permanently own any property for this reason. The Tribunal does not accept that the government of Bangladesh has confiscated property owned by his father and that his father “is not entitled to anything”.

2. The Tribunal does not accept that the applicant’s father’s business was targeted because they “were the only refugees from [Country 1] in that area” and they knew that they would not be able to protest if they did something bad to them and/or because his family’s [Country 1] origin would lead them to be perceived as outsiders and/or because they owned a business as [Country 1] ‘refugee’ and/or because Bangladeshi citizens of [Country 1] origin are a minority in Bangladesh.

3. The Tribunal accepts that Bangladeshi citizens of [Country 1] origin are a minority in Bangladesh. The Tribunal does not accept that they are defenceless and are easy targets for “bad people”. The Tribunal does not accept that the Bangladeshi government is complicit in the targeting of this minority group. The Tribunal does not accept that the applicant was targeted and attacked or that there is a real chance that he will be targeted and attacked if he returns to Bangladesh because he is a minority businessman and/or [Country 1] ‘refugee’ who owns a business.

4. The Tribunal accepts that the applicant’s family’s [Country 1] origin may lead to some members of the community perceiving them to be outsiders. The Tribunal accepts that this may even lead to some discrimination against the applicant and his family. However, the Tribunal is not satisfied that such discrimination would lead to serious harm. 

5. The Tribunal does not accept that the applicant left Bangladesh for any of the reasons claimed. The Tribunal is not satisfied that there is a real chance that he will suffer serious harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future. The Tribunal accepts that the applicant does not wish to return to Bangladesh.

6. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions the Tribunal finds that there is no real chance that the applicant would be at risk of persecution on the grounds of his actual or implied political opinion, his race or any other Refugee Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Refugee Convention reason. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act. 

   Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

7. The Tribunal has considered the applicant’s claims under complementary protection. 

8. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.

9. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Bangladesh now or in the reasonably foreseeable future.    

10. 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 that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act. 

    CONCLUSION

11. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.

12. 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 s.36(2)(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

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

Linda Symons

         

Member