1415579 (Refugee)

[2016] AATA 3116

1415579 (Refugee) [2016] AATA 3116 (17 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415579

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Giles Short

DATE:17 January 2016

PLACE OF DECISION:  Sydney

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

Statement made on 17 January 2016 at 6:32pm

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

INTRODUCTION

1. [The applicant] is a citizen of Bangladesh.  He has said that he comes from Magura and that he became involved in the Bangladesh Nationalist Party (BNP) while attending college there.  He has said that he was unable to sit for his Higher Secondary Certificate examinations in [year] because of his involvement in student politics and that after this he was not involved in the BNP to a great extent.  He has said, however, that he took part in one protest in November 2010 in Magura and that he was severely injured and ended up in hospital.  He has said that the police, the (paramilitary) Rapid Action Battalion (RAB), his political opponents from the Awami League and even people from the BNP were looking for him before he left Bangladesh and that he fears that they will kill him if he returns to Bangladesh.

2. [The applicant]’s application for a protection visa was refused by a delegate of the Minister for Immigration and he has applied to this Tribunal for review of that decision.  A summary of the relevant law is set out at Attachment A.  I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade into account to the extent that they are relevant.  The issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Bangladesh and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does [the applicant] have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Bangladesh?

   [The applicant]’s claims

3. [The applicant] is aged [age].  In a statement accompanying his application for a protection visa he said that he had finished his [education] (Year [grade]) in [year].  He said that while [studying] at a college in Magura he had become involved in student politics and he had not appeared for his examinations as a result.  He said that he had been a member of the Jatiyatabadi Jubo Dal, the youth wing of the BNP, and that he had taken part in street protests in Magura and Dhaka against the Awami League when ordered to do so by the leaders or the ‘High Command’ of the BNP.

4. [The applicant] said that in 2012 (corrected at interview to 2010) he had been involved in a huge protest in Magura against the removal of the leader of the BNP, Khaleda Zia, from her cantonment house.  He said that the protesters had clashed with the police and the RAB and he had been severely injured in a baton charge and left unconscious in the street.  He said that he had been taken to hospital for treatment and that he still bore scars from this incident.  He said that after this incident his parents had barred him from being involved in politics and the leaders of the BNP in the Magura district had believed that he was spying for the Awami League.  He said that they had wanted to punish him for leaving the BNP.  He said that a lot of his friends who had been involved in the Jatiyatabadi Jubo Dal had been killed by the RAB and that he was ‘listed in the black lists of the RAB’.  He said that he had therefore arranged for a visa to travel to Australia.  He said that if he went back to Bangladesh he would be killed by the RAB or he would be harmed by BNP activists due to his previous involvement in the BNP.

5. [The applicant] was interviewed by the primary decision-maker in relation to his application [in] July 2014.  He said that his family lived in Magura.  He confirmed that he claimed that, along with his friends, he had become involved with the student group of the BNP while he had been at college in [year].  He said that he had gone to processions and meetings with his friends.  He said that he had become involved in the BNP because he had liked Khaleda Zia, the leader of the BNP, and he had followed his friends.  He said that his parents had also supported the BNP.  He said that he liked the principles of the BNP by which he said he meant that the BNP people in the college had advised them not to fight with each other.

6. [The applicant] said that he had abandoned his studies and his family had been very unhappy with him.  He said that he had not been able to sit for his [examinations] because he had already had arguments with Awami League people.  He said that, because he had always been in the front row of the processions, the Awami League people had thought that he had been involved in any problem which had happened although he had not been involved directly in any sort of problem.  He said that this was why they had tried to kill him a few times.  He said that the first time had been in November 2000 when they had been going out from their college in a procession.  He said that when they had just passed the college gates an Awami League procession had been coming from the opposite side and when these two processions had met each other they had started fighting.  He said that they had started throwing stones.  He said that he had tried his best to save himself.  He said that he had not been hurt on this occasion but his friends had been hurt.  He said that people from the Awami League had also been injured.  He said that everybody had seen that he had been in front of the procession and they had wanted to take revenge on him.

7. [The applicant] said that this had been why he had not been able to sit for his examinations.  He said that he had not been able to move normally after that.  He said that his parents had advised him not to stay in the Magura district so he had gone to Dhaka.  He said subsequently that this had been in 2004.  He said that he had stayed with a person from his village who had been [Official 1] of the BNP at [a] Hall at [an educational institution].  [The applicant] said that he had continued his involvement with the BNP in Dhaka.  He said that wherever this person had gone he had followed him.  He said subsequently that he had not had any problems in Dhaka between 2004 and 2006 because the BNP had been in government and there had been no fighting.

8. [The applicant] said that in 2006 when a caretaker government had taken over from the BNP government he had faced bigger problems in Dhaka.  He said that everyone had known this person from his village and he had been staying with this person all the time.  He said that this person had not been able to stay in Dhaka and had advised him to go back to the Magura district.  He said that when he had gone back to the Magura district he had not wanted to be involved with any party.  He confirmed, however, that he claimed that he had been involved in a protest in Magura in 2010 when the BNP chair, Khaleda Zia, had been removed from her cantonment home.  He said that when they had held their procession they had faced a lot of problems with the police and the RAB and also with Awami League people.

9. [The applicant] confirmed that he claimed that he had been injured on this occasion: he said that he had had cuts on his [body] and his [limb].  Asked how he had sustained these injuries he said that when they had hit him on his back he had been unconscious.  Asked who had hit him he said that there had been hundreds of people there.  He said that when he had regained consciousness he had been in hospital.  He said that he had been told that he had received seven stitches on his [body].  He said that he had not brought any papers about his admission to hospital with him.

10. [The applicant] said that when he had been released from hospital he had returned to his home.  He said that the police had also gone to his home looking for him and had asked him to go to the police station.  He said that his father had gone to the police station and had found that there was no case against him.  He said that his father had told him not to go to the police station because there was no case against him.  He said that on a second occasion both the police and the RAB had come to his house and had told his parents that he must go to the police station within one or two days.  He said subsequently that this had been in December 2010.  He said that although there had been no case against him the police had been coming to his home every second day.  He said that Awami League people had also come to his home looking for him.  He said that they had not been able to find him because he had been hiding in his [relative]’s house.

11. [The applicant] said that his parents had been very scared for [him].  He said that his parents had told him to go somewhere.  He said that he had gone to Dhaka again at the end of 2011.  He said that he had had a friend who had been on the national [sports] team and this friend had helped him to obtain an Australian visa in November 2012.  He said that he had applied for his passport in 2011 while he had still been in Magura.  Asked if anything further had happened as a result of his political involvement which he had not mentioned he said that after he had been released from hospital he had not been involved in any party.  He said that the BNP people had thought that maybe he was negotiating with the Awami League.  He said that the BNP people had wanted him to join with them again and because he had not joined with the BNP people they had also been after him.

12. [The applicant] said that he had stayed at his home for eight to nine months after he had been released from hospital.  He then said that sometimes he had stayed at his own home and sometimes he had stayed at his [relatives’] house.  He said that he had been scared because the situation had been so bad from both sides.  He said that [Official 1] of the student group of the BNP had been asking him why he was not involved but he had not wanted to be involved with any political party any more.  He said that he had decided to leave Bangladesh so that his parents would be happy.

13. [The applicant] said that he had never published or written any political material, including on the internet.  He said that he was in contact with his family in Bangladesh and that at first the police, the RAB, the people from the Awami League and even the members of the BNP had still been coming to his home looking for him but after one or two months, when they had come to know that he was outside the country, they had no longer come.  He said that they had told his mother that whenever he went back to Bangladesh they would catch him.  He said that, if he went back to Bangladesh, the police, the RAB or members of the Awami League or the BNP would catch him.  He said that Bangladesh was not a very big country and if anybody who knew him saw him then the same situation would arise again.  He said that the police and the RAB had been coming to his home at night and asking his parents to tell him to come to the police station.  He said that at this time it had been normal for people to be killed in crossfire and this had been why his parents had been scared that he would be killed.

14. [The applicant] said that he had not been involved in any political activities in Australia because he did not want to be involved in any political party for the rest of his life.  He said that when he had made his first (invalid) application [in] January 2013 no one had helped him.  He said that when this application had been refused he had been very confused.  He said that he had approached someone who spoke Bengali and had asked this man to help him.  He said that this man had translated his statement and had helped him to fill out the form.  Asked questions specifically about the complementary protection criterion he said that, if he went back to Bangladesh and the Awami League, the BNP, the police or the RAB got him, they would kill him.  He confirmed that he claimed that there was no case against him in Bangladesh.  He said that maybe the BNP people would think that he had already joined the Awami League.

    Discussion of [the applicant]’s claims

15. At the hearing before me I referred to the fact that [the applicant] had first applied for a protection visa [in] January 2013 and I asked him if anyone had assisted him when he had made that application.  He said that because he had limited knowledge of English he had got help from a friend of his in preparing the application.  I noted that this application had subsequently been found to be invalid and he had made his current application [in] April 2014.  I asked him if anyone had assisted him when he had made this application.  He said that somebody had helped him.  I asked him if, so far as he was aware, all the answers in that application were correct and complete.  [The applicant] said that he did not know because he had not gone to a solicitor to get help.  I noted that there had been a statement accompanying this application.  [The applicant] said that this statement had not been translated to him but he said that there was an error in the statement: instead of 2010 it said 2012.  He said that although the statement had not been read back to him in Bengali he had read it himself in English and that it accurately reflected his claims.

16. [The applicant] said that his parents and his [sibling] were still living in the place where he had grown up in Magura in Bangladesh.  He said that he was in contact with them and that he had spoken to his father on the day before the hearing.  He said that they wanted him to be here safe so that he did not face any problems in Bangladesh.  He said that they were constantly advised by his political friends to send him there and they would resolve the matter.  He said that these friends had stopped him from doing certain things.  I asked him what things they had stopped him from doing.  He said that he had been involved with the youth wing of the BNP, the Jubo Dal, and the real problem had started when Khaleda Zia had been removed from her house.  He said that he himself had been hit and he had wanted to register a case against the people who had beaten him up but at the police station they had not accepted his case, saying that there was no proof of it.

17. I noted that [the applicant] had said that his political friends had stopped him from doing certain things.  [The applicant] said that the first problem had started with the Awami League supporters and then the police had fired some shells.  He said that during the protest when they had tried to remove Khaleda Zia the police had got involved and they had used tear gas and had made a lathi charge.  He said that he had become senseless in that incident and had regained consciousness in hospital the next day.  He repeated that two to three days later he had wanted to register a case against the people who had beaten him up but the police had said that there was no evidence.  He said that they had also threatened him saying: ‘You have [a] cut here.  We will cut the other half.’

18. I referred again to [the applicant]’s evidence that his political friends had stopped him from doing certain things.  [The applicant] said that at that time the Awami League [Official 2] had been [Mr A].  He said that his [relative] had been involved with the Awami League and had not liked his involvement with the BNP.  I asked him again who had stopped him from doing certain things.  [The applicant] said that the Awami League [Official 2], [Mr A], had threatened him, saying that he did not want to see him getting involved with BNP activities.  He said that this had been in 2006.

19. I asked [the applicant] what had been the highest level of education which he had completed in Bangladesh.  He said that he had been able to appear for his examinations in [year] but that he had not been allowed to appear at the [specified educational level] examination because he had been stopped and threatened at the college in 2002.  He said that after 2002 he had studied at home but he then said that he had not returned to his home in the village: he had stayed in Dhaka.  After I put to him that I understood that he had been studying in Magura he said that he had gone to Dhaka in February 2003.  I put to him that previously he had said that he had only gone to Dhaka in 2004.  [The applicant] said that he had been going to Dhaka on and off in 2003 but he had only settled there in 2004.

20. [The applicant] said that he had been given shelter by [Official 1] of the BNP at [a] Hall in Dhaka.  He said that his parents had still been supporting him financially.  I asked him if he had ever worked for a living in Bangladesh.  He said that sometimes he had worked as [occupation].  He said that this had been after 2007 and that it had been in Dhaka.  He said that he had never intended to stay permanently in Dhaka so he had been travelling to and fro, on and off.  I put to him that he had said previously that in 2006 when the caretaker government had taken over he had had to move back to Magura.  [The applicant] said that this was correct but whenever there had been a problem or people had come to know where he was and he had found Magura was not suitable for him he had returned to Dhaka.  He said that he had only stayed in Magura for a few days.

21. [The applicant] said that he had first become involved in the BNP in 2000 when he had been at college.  He confirmed that his parents had also supported the BNP but he said that they had not done anything apart from casting their votes for the BNP: they had not been involved in any political activities.  I put to him that he had said for the first time at the hearing before me that his [relative] was involved in the Awami League.  [The applicant] claimed that he had mentioned before that his [relative] had been [an official] of the Awami League in his village.  He said that his [relative] had not objected to his parents supporting the BNP but his [relative] had not been in favour of his ([the applicant]’s) involvement in meetings and protest marches for the BNP.  I put to [the applicant] that this did not make a great deal of sense.  [The applicant] said that, when he used to attend all the meetings and protest marches and rallies for the BNP, people had told his [relative] that [he] was involved with all these things and that his [relative] could not control him.

22. [The applicant] confirmed that while he had been at college he had been involved with meetings and protest marches and that [he] had not been able to sit for his examinations.  I put to him that by 2002 the BNP had been in power nationally and I asked him why he had not been able to sit for his examinations.  [The applicant] said that he had been involved with the student wing of the BNP, the Chhatra Dal, and he said that his friends had always wanted him to be at the front.  He said that the opposition party people had seen him always at the front and the Chhatra League (the student wing of the Awami League) had never wanted him to be in the front so the Chhatra Dal had not supported him later on to be in the front.

23. I put [the applicant] again that he had claimed that he had not been able to sit for his examinations [and] that by this time his party, the BNP, had been in power.  I asked him how anyone had been able to prevent him from sitting his examinations because he had belonged to the BNP.  [The applicant] said that [when] he had had problems with Chhatra League supporters he had not got much support from the BNP or the Chhatra Dal to appear for his examinations or to enter the college.  I asked him why the Chhatra Dal or the BNP had not supported him, given that he had said that he had been an active member.  [The applicant] said that Chhatra League supporters had been looking for him to beat him up so he had reduced his activities for the BNP but the BNP had wanted him to be active.

1. I asked [the applicant] if he had been involved in BNP activities in Dhaka.  He said that when he had been staying at [a] Hall he had had to attend BNP meetings and protest marches.  He said that he had stayed in the Hall for around one year.  He confirmed that after this he had still been going to and fro to Dhaka and he said that he had stayed with some of his friends who had been studying in Dhaka.  He said that he had not continued to attend meetings and protest marches a great deal.  I asked [the applicant] if he had had any problems in Dhaka because of his political involvement.  [The applicant] said that some of his BNP friends had informed him two or three times that his address had been given to the Awami League supporters and they might come and look for him.  He said that when he had been informed that they had found his address he had left that place and had lived at another place in Dhaka.

2. I asked [the applicant] if he had been involved in campaigning for the BNP at the 2008 general election.  [The applicant] said that he had gone to Magura just to cast his vote.  He said that he had not been involved to a great extent.  I put to him that it appeared that after 2002 he had not been involved to a great extent in the BNP.  [The applicant] said that he had not been involved to that great an extent because everybody had been looking for him to beat him up.  I put to him that I found this a little difficult to believe because he had said that he had not been involved to a great extent.  [The applicant] said that [when] he had been in the college and staying at the hostel, he had been involved with Chhatra Dal activities to a great extent but later on he had reduced it because of threats.

3. I put to [the applicant] that I found it difficult to accept that people had been looking for him all over the place if he had not been involved to a great extent since 2002.  [The applicant] repeated that after 2002 he had been running away, staying in Magura at times and in Dhaka at times because they had been looking for him.  He said that he had tried to return in 2010 and when they had been about to remove the leader of the BNP, Khaleda Zia, from her house there had been the incident in which he had got a cut on his [body].  He said that then he had slowly stopped those activities.  He said that after this incident he had wanted to leave Bangladesh on the advice of his [parents].

4. I asked [the applicant] why he had decided to become involved in the protest in 2010 if he had not been involved in anything between 2002 and 2010.  [The applicant] said that he had always liked the BNP and when Khaleda Zia had been removed from her home he had not liked it and he had got involved in the protest.  He said that when he had been beaten up and had had this cut he had become fearful and he had had to leave.  I referred to [the applicant]’s evidence that there had been a lathi charge and I asked him how he had ended up with a cut on his [body].  [The applicant] said that he had become unconscious so he did not know exactly.  He said that he had received a cut on his [limb] as well.

5. I put to [the applicant] that he had said that he had wanted to make a report to the police about who had been responsible and I asked him how he had been going to tell the police who had been responsible if he could not tell me.  [The applicant] said that at the time of the protest he had been able to see the members of the opposition people so he had known who had been the people who had been approaching them to beat them.  I put to him that he had said that it had been the police who had made the lathi charge.  [The applicant] said that first the Awami League supporters had arrived there and had got involved in the incident.  He said that the police had come later on and had made the lathi charge.

6. I put to [the applicant] that he had said that it had only been after the police had arrived and had fired tear gas and had made the lathi charge that he had fallen unconscious and had received the cut on his [body].  I asked him again how he had been going to report to the police who had been responsible.  [The applicant] said that he had assumed that the people who had been approaching that incident must have done it.  I put to him that if this had been what he had tried to report to the police it was not surprising that they had not taken his report.  I put to him that he had not actually known who had been responsible and that he had just been trying to put the blame on his political opponents.  I put to him that, as he had said that the police had told him at the time, he had not actually had any evidence as to who had been responsible.

7. [The applicant] confirmed that he had ceased his political activities after this incident and that he had not been involved in any further meetings or protest marches either in Magura or in Dhaka.  I asked him why he had felt that he needed to leave Bangladesh.  [The applicant] said that he had always been in fear: he had always thought that someone had been approaching him to kill him.  He said that after he had received this cut on his [body] he had not been able to eat properly.  He said that he had had stitches for a long time and his body had been sore because he had been beaten up.  He said that he had thought that if he were attacked or beaten up again he would probably not be alive.  He referred to the fact that he had received his visa [in] November 2012 and he had arrived in [Australia] [in] November 2012.

8. I put to [the applicant] that I was looking at the two years which had passed between when he had said that he had taken part in this protest in November 2010 and when he had come to [Australia] in November 2012. [The applicant] said that he had been trying to get a visa since 2010 but it had been very difficult. I put to him that his passport had only been issued in [2011]. [The applicant] said that he had not had anyone and he had not known where to go so this had been why he had not been able to get his passport earlier. He said that he had not had any difficulty obtaining his passport because he had not been involved in any police case or matter.

9. I put to [the applicant] that in his statement he had said that he had been ‘listed in the black lists of the RAB’.  [The applicant] said that his name had been in the list and the RAB used to come to his home to inquire about him.  He said that they used to ask his parents where he was and his parents used to tell the RAB that he did not have a police case.  He said that his parents had asked the RAB why he was in the list and the RAB had told his parents to send him over and that they would see later on.

10. I put to [the applicant] that in his first (invalid) application he had said that he used to be a hit man for the BNP.  [The applicant] said that when he had arrived here he had met a Bengali person named [Mr B] who had helped him to prepare his application but he had not been aware of the content of the application.  He said that it was not true that he had been a hit man for the BNP.  I asked [the applicant] why [Mr B] would have invented a claim like this if he had not told [Mr B] that he had been a hit man with the BNP.  [The applicant] said that he had explained it to him in Bengali and [Mr B] had written it in English but he did not know exactly what [Mr B] had written.

11. I put to [the applicant] that he had told me that he had been involved in a few meetings and protest marches between 2001 and 2002 and that he had been involved in one protest in 2010.  I put to him that this appeared to have been the full extent of his political activities.  He agreed.  I put to him that the Australian Department of Foreign Affairs and Trade assessed that supporters or members of political parties in Bangladesh were not at risk of being arrested or living in fear of political violence on a day-to-day basis due to their political affiliations.  It had said that opposition party members engaged in protest in Bangladesh faced a low risk of being arrested.[1]

    [1] DFAT Country Report - Bangladesh, 20 October 2014, paragraph 3.55.

12. I put to [the applicant] that the Department had said that members with high profiles might face a higher risk but he did not claim that he had ever held any position in the BNP and the Department had previously advised that even a person who had held a position such as Assistant General Secretary or Joint Secretary with an organisation like the Jubo Dal would not be regarded as high-ranking or influential within the BNP.[2]  I put to [the applicant] that this made a little difficult for me to accept that there was a real chance or a real risk that he would have problems because of his involvement with the BNP if he went back to Bangladesh now.  [The applicant] said by way of response that he would accept whatever decision the Tribunal made.

    [2] See DFAT, ‘RRT Information request BGD32419 Bangladesh National Party’, 31 October 2007, CX196664, R2.

13. I put to [the applicant] that he had also said that the police and the RAB had been looking for him before he had left Bangladesh.  [The applicant] repeated that they used to visit his home and ask his parents where he was.  He said that they had wanted him to meet the RAB at the earliest.  He said that everyone was fearful to approach the RAB and he had not had any case against him.  He said he had been fearful whenever the RAB had asked to meet him.  I put to [the applicant] that the Australian Department of Foreign Affairs and Trade had advised that a list of persons wanted by the police, security forces and intelligence agencies in Bangladesh was maintained by the Department of Immigration and Passports and that this list was used to determine if an individual should be issued with a passport.[3]

    [3] DFAT Country Report - Bangladesh, 20 October 2014, paragraph 5.27.

14. I put to [the applicant] that he had said that he had had no difficulty obtaining his passport in [2011] so this information cast doubt on his claims that the police or the RAB were looking for him.  [The applicant] said that when the police had gone to his home to inquire in relation to his passport he had not had any case.  I put to him that this list was not just a list of people with cases: it was a list of people wanted by the police, security forces and intelligence agencies in Bangladesh.  I put to him that he had said that the police and the RAB had wanted him and that they had kept coming to his home asking for him.  I put to him that this suggested that his name would have been on this list and that he would not have been able to get a passport.  [The applicant] repeated that when the police had come to his home to inquire in relation to his passport he had not had any case against him.  He said that they had only verified whether he had committed anything against the government and whether he was eligible to have a passport or not.

    Conclusions

15. As I put to [the applicant], I have difficulty in accepting that there is a real chance that he will be persecuted because of his involvement with the BNP if he returns to Bangladesh now.  He claims that he was involved in the BNP while at college in Magura between [year] and [year], that for one year while staying with [Official 1] of the BNP at [a] Hall in Dhaka in 2004 he had to attend BNP meetings and protest marches but that after this he was not involved to a great extent in the BNP apart from his involvement in the protest in Magura in November 2010 in which he has said he was severely injured.  As I put to him, I find it difficult to accept that he would in fact had been prevented from sitting for his [examinations] in [year] because he belonged to the BNP, given that by that time the BNP was in government in Bangladesh.

16. I accept that after 2002 [the applicant] moved to and fro between Magura and Dhaka but, as I put to him, I find it difficult to accept that people were looking for him because of his political involvement while he was at college.  Given that he claims that he had reduced his political involvement after 2002 I find it difficult to accept that, as he claimed at the hearing before me, the Awami League [Official 2], [Mr A], threatened him in 2006.  He said at the hearing before me that he had not taken part in campaigning for the BNP at the general election in 2008 and that he had just gone to Magura to cast his vote.  I find it difficult to accept, therefore, that he would have decided to take part in a BNP protest in Magura in November 2010 as he has claimed.  I accept that [the applicant] has scars on his [body] and his [limb] but I have difficulty in accepting that he suffered these injuries in a lathi charge as he has said.  Although he claimed that he had wanted to register a case with the police against the people who had beaten him up he said at the hearing before me that because he had lost consciousness he did not know exactly how he had suffered these injuries and that it had just been his assumption that his political opponents had been responsible.

17. Although [the applicant] has said that he ceased his political activities after this incident he has said that he was living in fear that he would be attacked or beaten up or killed and that this was why he felt that he needed to leave Bangladesh.  As I put to [the applicant], given the limited nature of his political involvement I do not consider that there is an objective basis for his claimed fears.  I do not accept that, as he claimed, he only reduced his political involvement because of his fear of being beaten up nor that, as he has also claimed, he fears being harmed by BNP activists because he reduced his involvement in the BNP.  As I put to [the applicant], the Australian Department of Foreign Affairs and Trade assesses that supporters or members of political parties in Bangladesh are not at risk of being arrested or living in fear of political violence on a day-to-day basis due to their political affiliations.  It has said that opposition party members engaged in protest in Bangladesh face a low risk of being arrested.[4]  As I put to [the applicant], the Department has said that members with high profiles may face a higher risk but he does not claim that he ever held any position in the BNP and the Department has previously advised that even a person who held a position such as Assistant General Secretary or Joint Secretary with an organisation like the Jubo Dal would not be regarded as high-ranking or influential within the BNP.[5]

    [4] DFAT Country Report - Bangladesh, 20 October 2014, paragraph 3.55.

    [5] See DFAT, ‘RRT Information request BGD32419 Bangladesh National Party’, 31 October 2007, CX196664, R2.

18. I likewise have difficult in accepting that, as [the applicant] has claimed, the police or the RAB have been looking for him although he has said that there is no case against him.  He said in his statement that he was ‘listed in the black lists of the RAB’ but, as I put to him, I consider that if this were true he would not have been able to obtain a passport without difficulty in [2011] as he claims to have done.  As I put to him, the Australian Department of Foreign Affairs and Trade has advised that a list of persons wanted by the police, security forces and intelligence agencies in Bangladesh is maintained by the Department of Immigration and Passports and that this list is used to determine if an individual should be issued with a passport.[6]  [The applicant] repeated that he had not been involved in any case but I consider that his name would have been on this list if, as he claims, the RAB had kept coming to his home asking for him.

    [6] DFAT Country Report - Bangladesh, 20 October 2014, paragraph 5.27.

19. For the reasons given above I do not accept that [the applicant] is telling the truth about the problems he claims to have experienced as a result of his political involvement in Bangladesh.  While, as referred to above, I accept that he has scars, I do not accept that he received these injuries as a result of his participation in a political protest in Magura in November 2010 as he has claimed.  I do not accept that he was prevented from sitting for his [examinations] as a result of his political involvement at college nor that he was subsequently threatened nor that people from the Awami League, the BNP, the police or the RAB were looking for him as a result of his political involvement.  I likewise do not accept that he reduced his political involvement because of his fear of being persecuted as he has claimed.  Having regard to the advice of the Australian Department of Foreign Affairs and Trade referred to in paragraph 40 above, I do not accept that there is a real chance that he will be threatened with political violence or that he will be arrested or killed or otherwise persecuted for reasons of his involvement in the BNP if he returns to Bangladesh now or in the reasonably foreseeable future.  These being the only claims he has made I do not accept on the evidence before me that he has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Bangladesh now or in the reasonably foreseeable future.

    Are there 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?

20. Having regard to my findings of fact above and to the advice of the Australian Department of Foreign Affairs and Trade referred to in paragraph 40 above, I do not accept 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 subsection 36(2A) of the Migration Act.

    CONCLUSIONS

21. For the reasons given above I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in paragraph 36(2)(a) or (aa) of the Migration Act for a protection visa. There is no suggestion that he satisfies subsection 36(2) on the basis of being a member of the same family unit as a person who satisfies paragraph 36(2)(a) or (aa) and who holds a protection visa. Accordingly, [the applicant] does not satisfy the criterion in subsection 36(2) for a protection visa.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Giles Short
    Senior Member

    
    

    ATTACHMENT A - RELEVANT LAW

23. In accordance with section 65 of the Migration Act 1958, the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. As applicable to this application subsection 36(2) of the Act provided that:

    ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

    (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

    (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) 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 non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

    (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.’

    Refugee criterion

1. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.  Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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.’

2. The time at which this definition must be satisfied is the date of the decision on the application: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288.

3. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  As applicable to this application subsection 91R(1) of the Act stated that, in order to come within the definition in Article 1A(2), the persecution which a person feared must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) stated that ‘serious harm’ included a reference to any of the following:

   (a)a threat to the person’s life or liberty;

   (b)significant physical harassment of the person;

   (c)significant physical ill-treatment of the person;

   (d)significant economic hardship that threatens the person’s capacity to subsist;

   (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

4. In requiring that ‘persecution’ must involve ‘systematic and discriminatory conduct’ subsection 91R(1) reflected observations made by the Australian courts to the effect that the notion of persecution involves selective harassment of a person as an individual or as a member of a group subjected to such harassment (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388, McHugh J at 429). Justice McHugh went on to observe in Chan, at 430, that it was not a necessary element of the concept of ‘persecution’ that an individual be the victim of a series of acts:

   ‘A single act of oppression may suffice.  As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention.’

5. ‘Systematic conduct’ is used in this context not in the sense of methodical or organised conduct but rather in the sense of conduct that is not random but deliberate, premeditated or intentional, such that it can be described as selective harassment which discriminates against the person concerned for a Convention reason: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [89] - [100] per McHugh J (dissenting on other grounds). The Australian courts have also observed that, in order to constitute ‘persecution’ for the purposes of the Convention, the threat of harm to a person:

   ‘need not be the product of any policy of the government of the person’s country of nationality.  It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution’ (per McHugh J in Chan at 430; see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 233, McHugh J at 258)

6. Thirdly, the applicant must fear persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.  Subsection 91R(1) of the Act provided that Article 1A(2) did not apply in relation to persecution for one or more of the reasons mentioned in that Article unless ‘that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution’.  It should be remembered, however, that, as the Australian courts have observed, persons may be persecuted for attributes they are perceived to have or opinions or beliefs they are perceived to hold, irrespective of whether they actually possess those attributes or hold those opinions or beliefs: see Chan per Mason CJ at 390, Gaudron J at 416, McHugh J at 433; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

7. Fourthly, the applicant must have a ‘well-founded’ fear of persecution for one of the Convention reasons.  Dawson J said in Chan at 396 that this element contains both a subjective and an objective requirement:

   ‘There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear.  Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.’

8. A fear will be ‘well-founded’ if there is a ‘real chance’ that the person will be persecuted for one of the Convention reasons if he or she returns to his or her country of nationality: Chan per Mason CJ at 389, Dawson J at 398, Toohey J at 407, McHugh J at 429.  A fear will be ‘well-founded’ in this sense even though the possibility of the persecution occurring is well below 50 per cent but:

   ‘no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.  A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’ (see Guo, referred to above, at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)

   Complementary protection criterion

9. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out as relevant to this application above.  The Full Court of the Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention as referred to above (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed). ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A) of the Act: see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

   Ministerial direction

10. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.

    Credibility

11. As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):

    ‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)

12. As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:

    ‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’

13. If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.