1415713 (Refugee)

[2015] AATA 3603

1415713 (Refugee) [2015] AATA 3603 (2 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1415713

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Chris Thwaites

DATE:2 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 02 November 2015 at 1:36pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The Tribunal has before it the Department’s files relating to the applicant’s protection visa applications and the Tribunal’s file relating to the review application. The Tribunal has also had consideration of the delegate’s decision record provided to the Tribunal by the applicant.

4. The applicant’s written reasons for claiming protection are contained in his visa application form which states:

   I was involved in BNP politics in Bangladesh. Currently the Awami League is in power and the police administration supported them. If the police find me in Bangladesh they will arrest me and put me in crossfire. If the Awami League find me in Bangladesh they will kill me. From this fear I left Bangladesh and do not want to go back Bangladesh during this government period.

   The Awami League harassed and physically tortured me. The Awami League harassed my family members. The police is looking for me continuously.

   The Awami League will kill me. The police will arrest me and kill me by crossfire.

5. The applicant states he thinks the people of the Awami League will harm or mistreat him as well as the police and other government authority like the RAB. The applicant believes this will happen because he was involved in BNP politics. Now the Awami League is in power and they want to keep us (BNP) away so the Awami League can keep the power for ever. The applicant states that he believes that the police and other government authorities cannot protect him. The police listened to the Awami League as they are in power now.

6. According to the delegate’s decision record, during his interview with the delegate [in] April 2014, the applicant also stated that he fears his former employer will kill him with the assistance of the Awami League. He stated that his former employer had made enquiries to his family in Bangladesh about his location. When asked why his employer wanted to harm him, the applicant stated he did not know, but he was suspicious as to why his former employer would send people from [Country 1] to make enquiries around the time that the last elections were held in Bangladesh, and assumed that it is to harm him. He further stated that they also approach the Awami League with the enquiry, but again, could not identify any reason why they were looking for him through this channel of enquiry. The applicant could not articulate any definitive reason for these enquiries, and stated that he had previously had a good relationship with his former employer, and ceased his employment amicably. The applicant further stated that his previous employer had never communicated any intent to harm the applicant, or harmed the applicant in the past.

7. [in] August 2014 the delegate refused to grant the applicant a protection visa because, while the delegate did accept the applicant supports the BNP, the delegate did not accept the applicant was a member of the Chatra Dal student wing, or that the applicant was targeted to be killed by Awami League supporters in 2010, or that the Awami League has threatened to harm the applicant in the past. The delegate did not accept the applicant’s former employee is seeking his location in Bangladesh or intends to kill him with the cooperation of the Awami League, or that the applicant is hiding from the Awami League in Australia, or that the applicant was previously subjected to homosexual abuse. The delegate did not find the applicant faced a real chance of serious harm for reasons of his political opinion in Bangladesh, and was not satisfied the applicant had a real chance of being persecuted for a convention reasons. The delegate was not satisfied the applicant’s fear was well founded. Therefore the delegate was not satisfied Australia has protection obligations to the applicant under the Refugees Convention and as a result the applicant did not meet the criteria for the grant of the visa under s.36(2)(a). The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there was a real risk that the applicant will be subject to a significant harm. Therefore the delegate was not satisfied Australia has protection obligations to the applicant under s.36(2)(aa) and therefore the applicant did not meet the criteria for the grant of a protection visa under s.36(2)(aa).

8. On 18 September 2014 the applicant applied to the Tribunal for review of that decision.

9. The applicant appeared before the Tribunal on 12 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

10. During the hearing the applicant told the Tribunal a friend helped him complete his visa application forms. The Tribunal noted the forms indicated the applicant speaks, reads, and writes Bangla and English. The applicant confirmed that he read the contents of his visa application forms before signing them and did not have anything to add or change to the documents. During the hearing the applicant told the Tribunal he had begun to feel unwell. The Tribunal took a short adjournment to allow the applicant to move about and get some fresh air. On recommencing the hearing the applicant told the Tribunal he was well enough to proceed. The Tribunal took a number of short adjournments throughout the course of the hearing. The applicant told the Tribunal on a number of occasions that he was well enough to proceed.

11. During the hearing the applicant told the Tribunal he feared returning to Bangladesh because his employer from [Country 1] was still looking for him. The applicant told the Tribunal this employer was still looking for him and had sent a person to the applicant’s family home in Bangladesh looking for him. When his family told this person they didn’t know anything about the applicant, the person went to different people in his village asking for information and the applicant’s whereabouts. On questioning why this employer would be looking for the applicant, or send someone to Bangladesh to enquire about the applicant’s whereabouts, the applicant told the Tribunal he did not know why.

12. The applicant also told the Tribunal that he feared returning to Bangladesh because he had been politically active with the BNP in the past, and had been threatened and physically assaulted and attacked in 2004, which is why he left Bangladesh for [Country 1], and that Awami League supporters attacked his house when he returned to Bangladesh on vacation in 2007 and 2010 and attacked his brother in 2014, who then fled Bangladesh, because they thought the applicant was back in Bangladesh. The applicant fears that if he goes back to Bangladesh the Awami League supporters will kill him.

    FINDINGS AND REASONS

13. The law which the findings below refer to is attached to this statement of decision and reasons.

    Nationality

14. On the basis of the applicant’s consistent information provided to the Department and Tribunal about his place of birth and citizenship of Bangladesh, and the copy of the applicant’s Bangladeshi passport provided to the Department, the Tribunal finds that the applicant is a citizen of Bangladesh. There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Bangladesh. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act. As the Tribunal has found that the applicant is a national of Bangladesh, the Tribunal also finds that Bangladesh is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

    S.48A Bar

15. During the hearing the Tribunal noted that according to the delegate’s decision record the applicant first arrived in Australia [in] June 2010 and departed [in] August 2010. He returned to Australia [in] January 2011, and made his first protection visa application [in] March 2011. That application was refused [in] May 2011. The applicant made an application to the Refugee Review Tribunal [in] September 2011. The Refugee Review Tribunal found it did not have jurisdiction to review the decision as the applicant had lodged his application outside the prescribed period of time. The applicant’s subsequent applications for judicial review to the Federal Magistrates Court, the Full Federal Court, and High Court of Australia, were all unsuccessful, and in June 2013 the applicant made an application for Ministerial intervention. The applicant then made his second protection visa application [in] September 2013. The applicant confirmed this information was correct.

16. While the Tribunal acknowledged it had jurisdiction to review the decision in relation to the complementary protection criteria in s.36(2)(aa), it discussed with the applicant whether the Tribunal had jurisdiction to review the decision in relation to the Refugee Convention referred to in s.36(2)(a).

17. The Tribunal notes that s.48A imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen has made an application for a protection visa which has been refused. The Full Federal Court in SZGIZ v MIAC (2013) 212 FCR 235 has held at [38] that the operation of s.48A, as it stood at the time of this visa application, is confined to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa, in the sense that both applications raise the same essential criterion for the grant of a protection visa.

18. On the evidence before it the Tribunal finds the applicant made his first protection visa application [in] March 2011 and that application was refused [in] May 2011 with reference to the Refugee Convention criteria, prior to the commencement of the complementary protection provisions on 24 March 2012.

19. Applying the reasoning in SZGIZ v MIAC (2013) 212 FCR 235, the Tribunal finds that it does not have power to consider the Refugee Convention criterion in s.36(2)(a), and has proceeded on the basis that it can only consider the applicant’s claims under the Complementary Protection provisions in s.36(2)(aa) of the Act.

    Credibility

20. During the hearing the Tribunal discussed with the applicant his background in Bangladesh, his education, employment and family composition, as well as where he had lived in Bangladesh, his political affiliations and activities, why he left Bangladesh, and his fears of returning. The Tribunal raised a number of concerns in relation to the applicant’s oral evidence, including the applicant’s level of knowledge of the BNP, claims that he feared people from within the BNP which he had not previously raised, differences between the applicant’s oral evidence and his previous claims, as well as the change in his oral evidence during the hearing. The Tribunal also raised its concerns about the applicant’s claims to fear returning to Bangladesh yet he returned to Bangladesh in 2007 and 2010. The Tribunal finds the applicant is not a witness of truth and it is not satisfied the applicant has told the truth in relation to critical aspects of his claims. The reasons for this finding are discussed in more detail below.

21. First, during the hearing the applicant told the Tribunal his family supported the BNP and in 2000 he became involved with the party. He worked for the BNP starting in 2000 organising meetings and rallies. His role with the BNP was not a paid role, and before the 2001 election he organised meetings and rallies about once a week, and then after the election those meetings and rallies increased in frequency. He told the Tribunal that the BNP won the 2001 election and that after the BNP came to power he worked as [in a certain role] for the local BNP Thana in [a certain suburb]. He told the Tribunal he became a member of the BNP in 2000 and during the 2001 election he campaigned for the local BNP candidate, going from door to door introducing the candidates and displaying posters. He told the Tribunal he undertook [a certain] position until he left Bangladesh in 2004 when he went to [Country 1]. On questioning if the applicant had any involvement with the BNP since 2004, the applicant told the Tribunal he had some contact with some people, not much, through mobiles while visiting, and that some people were still there and some were in jail or out of the country. The applicant told the Tribunal that since he has been in Australia he has been stressed so has not had any involvement.

22. During the hearing the Tribunal asked the applicant about the process of becoming a member of the BNP. The applicant told the Tribunal that first of all he used to support the party, he would do fieldwork involving processions and rallies. He told the Tribunal that through these activities he built up his exposure, and he was then appointed to the [position]. When asked specifically about what he had to do in order to become a member of the BNP, the applicant told the Tribunal he didn’t have to do anything to become a member, just if you support them you can become a member.

23. The Tribunal also asked the applicant to describe the BNP flag. On request the applicant made a rudimentary drawing of a stalk of rice, explaining it was from a padi field when the rice was very young. On further questioning the applicant told the Tribunal there was nothing else on the flag. Asked about what the symbol of the padi meant, the applicant told the Tribunal that when the party was born they were seeing this logo and were following it.

24. The Tribunal also asked the applicant about the four fundamental principles of the BNP Constitution. The applicant was unable to tell the Tribunal about them, and told the Tribunal he was just involved in the local area.

25. During the hearing the Tribunal raised its concern about the applicant’s level of knowledge of the BNP. The Tribunal noted the flag the applicant drew was very different from the BNP Flag outlined in the BNP Constitution. The applicant told the Tribunal he had not included the two leaves in his drawing. The Tribunal noted the flag described in the BNP Constitution had a number of other symbols the applicant had failed to include. The Tribunal also noted the BNP Constitution outlined a very specific process for membership including a fee, and raised its concerns the applicant was unable to tell the Tribunal about the four fundamental principles of the party[1].

    [1]

26. In response the applicant told the Tribunal whatever he said was true, and it all happened a long time ago, and he has been living under tension all that time, and that is why there could be a little difference but not much difference.

27. While the Tribunal accepts the applicant identified the padi/rice sheaf on the flag, and as a symbol of the BNP, the Tribunal is concerned he was unable to provide any further detail about the BNP flag, or about the process to become a member of the BNP, or about the four main principles of the party. While the Tribunal does not expect the applicant to have a complete knowledge of the BNP Constitution and party structure, the Tribunal would expect someone in the applicant’s claimed circumstances, raised in a family which supported the BNP, and to have been a BNP member and actively involved from 2000 to 2004, organising processions and rallies, campaigning for local candidates, and who was [in a certain role in] the local BNP Thana in [a certain suburb], would have more detailed knowledge of the BNP than the applicant displayed during the hearing. The Tribunal does not accept that the passage of time or the tension and stress the applicant is under explains this lack of knowledge. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence that he was involved with the BNP.

28. Second, during the hearing the applicant told the Tribunal he left Bangladesh for [Country 1] in 2004 because there was a fire in a local marketplace, and while the local MP was a BNP member, he did not look after the local people and they got angry with him. The applicant got involved with the local people against the MP and decided to try to put another person in his position. The applicant went against the local BNP MP, who was a powerful person. That person responded by attacking the local people, and the main focus was on the applicant. The MP’s supporters came to the applicant’s village saying that they would kill the applicant, and physically attacked him in 2003. The applicant was unable to recall the exact time of year but thought it was either August or September or some time at the end of 2003. The applicant told the Tribunal during the attack he was hit with a weapon on his leg and was later taken to hospital. The applicant told the Tribunal he spent a month in hospital before being released. He then spent another month in bed rest. The applicant told the Tribunal that after he left the hospital he went and stayed at his [siblings]’ houses. He told the Tribunal he had [siblings], who were all married, and he lived at his [siblings]’ homes, spending one and a half to two months at each of their homes, before he left for [Country 1] in December 2004. The applicant told the Tribunal that the BNP MP lost the next election and some of his supporters subsequently joined the Awami League and some are still within the BNP. The applicant believes the MP blames the applicant for his election loss, and his supporters have said they will kill the applicant if he returns. The applicant told the Tribunal he fears the MP and his supporters, some who are in the BNP, and some who have now joined the Awami League. The applicant told the Tribunal these people attacked his brother and are shouting at his family home all the time about the applicant.

29. The Tribunal raised its concern that the applicant had indicated in his visa application form concerns about the Awami League people and supporters, but did not mentioned any incident with the BNP MP or any concerns about a BNP MP or his supporters in the BNP. In response the applicant told the Tribunal the Awami League is the main enemy who he is afraid of. He told the Tribunal they are the main enemy, and that when he returned to Bangladesh he was attacked twice, that they are shouting at his family that if the applicant comes back they will kill him, and last year his [brother] was attacked by the Awami League people and the police were involved. When the Tribunal noted the applicant had told the Tribunal he left Bangladesh in 2004 due to the conflict the BNP MP and his supporters, the applicant told the Tribunal he was attacked by BNP people but Awami League people were there as well, and combined BNP and Awami League, his enemy became too big. He then told the Tribunal there were less people from the BNP and more from the Awami League involved.

1. On further questioning, the applicant told the Tribunal that the BNP was in power when he left Bangladesh and still he had to leave. He told the Tribunal that when he started his political involvement he supported and followed BNP, and used to work for BNP doing fieldwork, meetings and rallies, and there was conflict between BNP and Awami League which he had to face. He told the Tribunal that now the Awami League has come to power, the applicant believes the BNP MP and supporters will not harm him, but the Awami League is in power and they will harm the applicant because he has previous conflict with them. They are now shouting at the applicant’s family.

2. When asked about the past conflict with the Awami League, the applicant told the Tribunal it happened during BNP rallies and processions. Asked when the applicant had his first conflict with the Awami League, he told the Tribunal that it occurred when he was attacked and turned up in the hospital, in that fight there were Awami League people. He told the Tribunal there was some BNP people but most of them were Awami League people. When the Tribunal noted the applicant had earlier described that attack as a conflict between the applicant and local people, and the BNP MP and his supporters, the applicant told the Tribunal that was the conflict, and the Awami League had targeted the applicant before and they took the opportunity to do it again. The Tribunal noted the applicant had been asked about the first time the Awami League had attacked the applicant, and he spoke about the attack after which he was put in hospital. The applicant told the Tribunal the fight in the market place was when the BNP people and the Awami League people attacked the applicant.

3. The applicant told the Tribunal when he returned to Bangladesh he was attacked by Awami League people, and that they are still shouting at his family and then his [brother] was attacked in 2014, and this was all by Awami League people. When asked if the applicant was attacked on any other occasion by the Awami League people before he left Bangladesh in 2004, the applicant told the Tribunal that at the local level, when he lived with his [siblings] after he came out of hospital and was recovering and before he went to [Country 1], when he came out of his [siblings]’ houses, if they saw him they would try to attack him. The applicant could not remember how many times this occurred but told the Tribunal it occurred several times. The applicant also told the Tribunal he had not had the opportunity to tell his story in this much detail in the past.

4. The Tribunal is concerned the applicant’s oral evidence is different to the information in his visa application forms, in that the information in the visa application forms does not mention any conflict with a BNP MP or his supporters. While the Tribunal notes the applicant stated he had not had the opportunity to tell his story in this much detail in the past, the Tribunal notes the delegate’s decision record indicates the applicant was interviewed [in] April 2014 and [in] June 2014, and does not record the applicant referring to a conflict with a BNP MP or his supporters. The Tribunal found the applicant’s response to its concerns confused and unpersuasive. The applicant changed his oral evidence in relation to who attacked him and why, in response to the Tribunal concerns. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence.

5. Third, during the hearing the applicant initially told the Tribunal he lived at his family home (with his father and mother and [some siblings]) in [a certain district] until he left Bangladesh for [Country 1] in 2004. The Tribunal raised its concerns that later in the hearing the applicant told the Tribunal that after he was attacked in 2003 and spent one month in hospital, he then lived at his married [siblings]’ homes, for one and a half to two months in each of their homes, until he left for [Country 1] in December 2004. In response the applicant told the Tribunal he had not had the opportunity to talk about the details before the hearing. The Tribunal does not accept the applicant’s response explains why he changed his oral evidence about where he lived in Bangladesh prior to leaving for [Country 1]. The Tribunal also notes the applicant’s visa application form indicates the applicant lived at one address in [a certain district] between [year] and December 2004. The Tribunal considers the change in the applicant’s oral evidence reflects poorly on the applicant’s credibility and the reliability of his evidence.

6. Fourth, during the hearing the applicant told the Tribunal that he returned to Bangladesh from [Country 1] twice, once for a two months’ vacation in 2007, and once for a five or six weeks’ vacation in 2010. The applicant told the Tribunal he had been staying at his family home during his first vacation in 2007 when, in the first week, a group of Awami League people attacked the house; they came up knocking loudly on the door asking for the applicant. The applicant escaped through the back door and went to a friend’s house by bus and remained in Bangladesh for another four or five weeks but did not return to his family home.

7. The applicant also told the Tribunal that when he returned to Bangladesh in 2010 he was staying in his family home and within the first or second week Awami league people came to the door asking for the applicant, and the applicant fled. His mother and brother told the Awami League people that the applicant was not there. The applicant fled to a friend’s house by bus and stayed there for another four or five weeks before returning to [Country 1].

8. The Tribunal raised its concerns that these vacations to Bangladesh could indicate that the applicant was not in fear for his safety in Bangladesh. In response the applicant told the Tribunal he thought that over the course of time they may have forgotten the matter, and therefore he could go back and live. The Tribunal is not persuaded by the applicant’s response. The Tribunal notes the applicant spent a considerable amount of time in Bangladesh on each vacation, even after he claims to have fled from his family home, and considers the applicant’s return to Bangladesh in 2007 and 2010 indicates that he was not in fear for his safety at that time.

9. Fifth, during the hearing, the applicant told the Tribunal that he lived in [Country 1] between 2004 to 2011 and worked as [occupation]. He told the Tribunal that he returned to Bangladesh in 2007 for a two-month vacation and then returned to [Country 1], and then returned to Bangladesh for a five or six week vacation in 2010. The applicant also told the Tribunal that he visited Australia in 2010 for two months with his employer, working in his [house]. The applicant told the Tribunal he worked 17 or 18 hours a day in the house although he did go outside to do the shopping. The applicant told the Tribunal he also worked in his employer’s friend’s house.

10. While the Tribunal notes the applicant’s first protection visa application also raised his claims that he worked for the BNP and concerns in relation to political affiliation, during the hearing the Tribunal noted that in that application the applicant also claimed that he was shipped out of Bangladesh to work as a slave in [Country 1], and worked for 24 hours a day without pay, or leave, or holidays, and that the applicant was concerned that the owner would beat and kill him because he could assist in their prosecution. In response the applicant told the Tribunal he was like a servant, and he had no idea why his previous employer was looking for him, and told the Tribunal the situation in Bangladesh means if you spent AU$100 in Bangladesh it was easy to have someone killed. He told the Tribunal that while he worked 18 or 19 hours a day, he had two or three hours rest, and was paid AUD $70-$80 per month.

11. The Tribunal also noted that in the applicant’s first protection visa application form the applicant claimed that being homosexually abused and raped, he will not have a position in Bangladesh society and will face tremendous problems in living in the community with dignity. In response the applicant told the Tribunal that his former owner had tried to do something like that but the applicant protected himself and escaped from the situation.

12. In accordance with s.424AA, the Tribunal put information to the applicant from his first protection visa application lodged [in] March 2011. The information was that in his first protection visa application the applicant claimed that he was shipped out of Bangladesh to work in slavery in [Country 1]; that he remained a slave in that country for his owner and also in Australia for the same owner. That he ran away from his owner to seek protection because he now believes that if he did not run away he would never see freedom. He claims he was forced to work on a 24-hour cycle and without any payment, any basic rights, leave, holidays, and any regard to his fundamental human rights. The applicant claimed that if he now returned to Bangladesh the owner and his agents will locate him and try to kill him. They will do so because he will be a living evidence of their horror and the story may come out. Further the applicant can be the only reason to assist in their prosecution and any possible imprisonment.

13. The Tribunal noted that this information was different to the applicant’s oral evidence in relation to his work in [Country 1], that he worked in [Country 1] as [occupation] and returned to Bangladesh on vacation twice, and had no idea why his previous employer was still searching for him or why he sent people to look for him. The Tribunal also notes the applicant had told the Tribunal he was paid $70 to $80 per month and had paid for his own ticket to fly from [one Australia city to another Australian city].

14. The applicant chose to respond immediately and told the Tribunal what is said in Bengali and written in English is a little different, and mistakes can happen from one language to another. He also told the Tribunal he is afraid that the old employer has sent people to look for him.

15. The Tribunal does not accept translation error or miscommunication between languages explains the difference between his oral evidence and the claims made in the applicant’s first protection visa application. The Tribunal considers these differences reflect poorly on the applicant’s credibility the reliability of his evidence.

    Complementary protection

16. As noted above the Tribunal finds the applicant is not a witness of truth and it is not satisfied the applicant has told the truth in relation to critical aspects of his claims.

17. Given the concerns about the applicant’s oral evidence and credibility as discussed above, the Tribunal does not accept the applicant was raised in a family which supported the BNP, or that the applicant became a member and was actively involved with the BNP between 2000 and 2004. The Tribunal does not accept the applicant arranged or attended BNP meetings or rallies, or that he campaigned for BNP candidates during elections, or that he was the local Thana [official]. The Tribunal does not accept the applicant was politically active in Bangladesh, or that he had a political profile in Bangladesh.

18. The Tribunal does not accept the applicant came to the adverse attention of the local BNP MP or his supporters or Awami League supporters. The Tribunal does not accept the applicant was physically attacked in 2003 by the local BNP MPs supporters or Awami League supporters. The Tribunal does not accept the applicant was injured and spent one month in hospital due to any political activity or conflict.

19. The Tribunal does not accept the applicant lived at his [siblings]’ homes after he was released from hospital and before he left for [Country 1], or that he was threatened or anyone tried to attack him at that time. The Tribunal does not accept the applicant was in hiding or of adverse interest to anyone in Bangladesh at the time he left for [Country 1] in 2004.

20. The Tribunal does not accept the applicant’s family house was approached or attacked by Awami League supporters when the applicant visited Bangladesh in 2007. The Tribunal does not accept the applicant escaped his family home at that time and spent the rest of his vacation hiding at a friend’s home. The Tribunal does not accept the applicant’s family home was approached or attacked by Awami League supporters when the applicant visited Bangladesh in 2010. The Tribunal does not accept the applicant escaped his family home at that time and spent the rest of his vacation hiding at a friend’s home.

21. The Tribunal does not accept the applicant’s family in Bangladesh has been threatened or harassed by Awami League supporters, or that the applicant’s [brother] was attacked by Awami League supporters in 2014 and that he fled Bangladesh for that reason.

22. While the Tribunal accepts country information indicates that violence does occur between supporters of political parties in Bangladesh[2], the Tribunal does not accept the applicant supports the BNP or any other political party in Bangladesh. The Tribunal does not accept the applicant had, nor has, any political profile or imputed political opinion that has or would attract the adverse attention of anyone in Bangladesh. The Tribunal does not accept the applicant would undertake any political activity if returned to Bangladesh. The Tribunal does not accept there is a real risk the applicant will be harmed or mistreated or killed, or arrested and put in crossfire, by the Awami League or the police or government authorities like the RAB if he returns to Bangladesh.

    [2] DFAT County Report Bangladesh, 20 October 2014.

23. The Tribunal does not accept the applicant’s former employer from [Country 1] is looking for the applicant, or that he has sent someone to Bangladesh to question the applicant’s family and the people of his village or the Awami League in relation to the applicant and his whereabouts. The Tribunal does not accept the applicant’s former employer has any ongoing adverse interest in the applicant.

24. The Tribunal does not accept the applicant was shipped out of Bangladesh to work in slavery in [Country 1], or that the applicant was forced to work 24-hour cycle without any payment, any basic rights, leave, holidays, or any regard to his fundamental human rights. The Tribunal does not accept there is a real risk the applicant’s former employer or his agents will try to locate him and kill him for any reason. The Tribunal does not accept the applicant was homosexually abused or raped, or that he will not have a position in Bangladesh society and will face tremendous problems in living that in the community with dignity.

25. The Tribunal notes the applicant’s oral evidence that he did some work [in the family business] prior to leaving Bangladesh and also worked for a number of years in [Country 1] as [occupations]. The Tribunal notes the applicant’s oral evidence that his mother and brother continue to live in the family home in Bangladesh and [one] brother continues to work [in the family business]. The Tribunal does not accept there is a real risk the applicant would be unable to find employment in Bangladesh or that he would be unable to subsist.

26. The Tribunal does not accept there is a real risk the applicant will suffer significant harm for any of the reasons he has claimed, if returned to Bangladesh, now or in the reasonably foreseeable future.

27. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subject to torture, or cruel or inhuman treatment or punishment; or subject to degrading treatment or punishment, if he is returned to Bangladesh, now or in the foreseeable future. 

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

29. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations.

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

    DECISION

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

    Chris Thwaites
    Member  2 November 2015

    
    

    ATTACHMENT - RELEVANT LAW

32. In accordance with section 65 of the Migration Act 1958 (the Act), 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 (the Regulations) have been satisfied. The criteria for the grant of a Protection visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides 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; 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.’

    Refugee criterion

33. 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.

34. 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.’

35. 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.

36. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) states that ‘serious harm’ includes 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.

1. In requiring that ‘persecution’ must involve ‘systematic and discriminatory conduct’ subsection 91R(1) reflects 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.’

2. ‘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)

3. 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 provides that Article 1A(2) does 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.

4. 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.’

5. 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

1. 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 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.