1416335 (Refugee)

[2016] AATA 3372

1416335 (Refugee) [2016] AATA 3372 (22 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1416335

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Frances Simmons

DATE:22 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 22 February 2016 at 8:25 am

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. The applicant in this case is [name]. He claims that he was born in [year] in Bangladesh. He speaks Bengali and is of the Muslim faith.  He claims he left Bangladesh illegally in March 2013 and travelled to [country] via [Country 1] and [country]. He entered [country] illegally and travelled by boat to Australia. He arrived in [Australia] [in] April 2013. He applied for a protection visa [in] July 2013 with the assistance of a registered migration agent. I accept, on the evidence before me, that he is a citizen of Bangladesh.

2. In his application for a protection visa [the applicant] claimed that he was an active member of the Bangladeshi Nationalist Party (BNP). He claimed that he feared he would be harmed by supporters of the Awami League because of his active involvement in [a club], which he said was run by the BNP. He claims that, on his way home from the club, he was abducted by the Awami League and beaten until he lost consciousness. He claims he awoke in a hospital and he still has scars from this incident. He claims that he stayed at home because he heard that the Awami League was going to kill him. After three months he went to Chittagong were he stayed for a month, before he met a people smuggler who helped him to leave Bangladesh. He claims that the Awami League want to kill him because he supported the BNP and got more people to participate in rallies. He claims that he will be beaten to death by the Awami League if he returns to Bangladesh.  

3. [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. The applicant appointed a new migration agent to represent him before the Tribunal and made new claims. Before the hearing, the applicant’s new representative provided submissions which stated that the applicant was involved in an altercation with members of the Awami League [in] January 2014. This submission was accompanied by various documents which purport to show that a police complaint was made by a member of the Awami league against the applicant [in] January 2014 and, as a result, criminal charges have been brought against him and the police are looking for him.

4. The applicant appeared before the Tribunal on 8 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. At the Tribunal the applicant was asked about his claims for protection, and was invited to comment upon issues that raised questions about the credibility of his claims.  The applicant maintained that the claims he made before the Department and, while he acknowledged that in January 2014 he was in Australia, not Bangladesh, he claimed that the documents he has submitted to the Tribunal showed that a false case had now been brought against him by members of the Awami League. For reasons that are set out below, I have concluded that the decision under review should be affirmed. 

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

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

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. I have had regard to the DFAT Country Report Bangladesh  dated 20 October 2014 to extent that it is relevant to the assessment of the applicant’s claims.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Claims for protection before the Department

20. Shortly after he arrived in Australia [in] April 2013, the applicant participated in an entry interview held [in] May 2013. In this interview he said that he left Bangladesh because he was beaten by people from the Awami league because he supported the BNP. They still wanted to kill him and so he made arrangements to come to Australia. This took about four months. Asked if he came to Australia to work, he said no – he came to save his life. He said he is involved with the BNP and he used to go to rallies and strikes. He was a general member of the BNP and he did work for them. He informed people of rallies. He did not have a membership number but his name was on the party list. The people from the Awami league will kill him if he returns to Bangladesh.

21. In his statement of claims (departmental [file] f.34-36), which were prepared with the assistance of a registered migration agent, the applicant stated that he was born on [date] in [a] village, [Town 1] police station, Dhaka, Bangladesh. He made the following claims:

    a.Most people in the village are involved in selling [products] to other districts in Bangladesh. Young people, such as himself, are interested in politics. The applicant supports BNP, a decision that was influenced by his family. In their area there is a club run by the [BNP] and he went there for sports and activities from a young age.

    b.Most people in his area support the BNP or the Awami league. When he was young, the BNP always won the seat of [Town 1]. But four years ago, the Awami league won the seat of [Town 1]. Whichever party wins the election has control over the business in the area.

    c.The applicant’s father has a [business] and sells the [products]. About two years ago, his father started having problems with a member of the Awami league about the land. The land is his grandfather’s and they used to farm on the land. The member of the Awami league took the land. They have title papers to show that his grandfather owns the land. They took the matter to the court. The case is still ongoing. This member got support from his party, the Awami league.

    d.The applicant has been a member of the BNP for seven years. He has participated in three rallies. He has attended public speeches delivered by BNP MPs. Whenever he knew there was going to be a rally, he asked his friends to participate. He had many friends. He was one of the very few active members of the [club] which was run by the BNP. The participants in the rallies were mainly from the [club]. Therefore the Awami league knew that he rallied against them.

    e.The applicant was always a supporter of the BNP. The Awami league does not want people to support the BNP. They will kill a few BNP supporters to warn others not to support BNP. As the applicant is registered with the [club] and he is a popular member, he was targeted to teach others a lesson.

    f.Six months ago when he was going home from the club at night, the Awami league caught him and blindfolded him. He lost consciousness and was taken to a hospital. When he regained consciousness, he realised they had cut one of the veins in his toes. He had injuries all over his body. He still has scars on his head, his knee and his toe. It took him two months to recover.  During that period his brother had to help him go to the toilet.

    g.The applicant did not dare to leave home after this incident because he had heard from friends that the Awami league was going to kill him. He stayed at home for three months.

    h.Even staying at home, he didn’t feel safe. He went to Chittagong to avoid harm. He ran into a people smuggler at a restaurant who said he could help him out of danger. He decided to leave Bangladesh.

    i.The applicant fears he will be beaten to death by the Awami league if he returns to Bangladesh. The Awami league wants to kill him because he supported the BNP and got more people to participate in rallies against them.

    j.The Awami league is in power in his area. They are the local authorities and tried to kill me. They will not protect him. If the Awami league found him, they would kill him. Bangladesh is a small country and they can find him easily.

22. [In] September 2014 5he applicant was interviewed about his claims by the delegate. Having listened to this interview,  I am satisfied that references made by the delegate to the applicant’s evidence in the decision record are accurate.

23. [In] September 2014 the delegate refused to grant the applicant a protection visa. The delegate’s decision notes that country information indicates that the political environment in Bangladesh can be volatile: both the Awami League and the BNP have been involved in violent actions targeting their opponents. It notes that Bangladesh’s 10^th General elections, held on 5 January 2014, were boycotted by the BNP and its allies including the Jamaat-e-Islami, resulting in a comprehensive Awami League victory. The delegate’s decision records that the country information indicates that much of the political violence is a result of excessive force used at protest demonstrations rather than targeted attacks of individuals and false charges and abductions tend to be directed at senior figures of the BNP not lesser supporters and members.

24. The delegate did not find the applicant to be a credible witness. The delegate found the applicant had limited knowledge and involvement with the BNP. The delegate was concerned that the applicant presented inconsistent information about what happened on the night he claims that he was kidnapped by Awami League supporters. The delegate did not accept that he was kidnapped or beaten by Awami League supporters or members or that he had a political profile that would bring him to the adverse attention of the Awami League if he returned to Bangladesh. The delegate did not accept that he would engage in any political practice that would attract the adverse attention of Awami League supporters if he was returned to Bangladesh. The delegate did not accept that the applicant was entitled to protection under s.36(2)(a) or s.26(2)(aa)

    Application for review

25. The pre-hearing submission states the applicant is entitled to protection because of his political opinion: he is a strong member of the BNP. The pre-hearing submissions go on to raise new claims, which are different from the claims he presented before the Department. These claims are summarised in the pre-hearing submission as follows:

    [In] January 2014 [the applicant] and his members of the BNP were going from [a] Road to [a] College gate on behalf of [name] and met face to face with Awami League [name]. They both started breaking, torturing and collusion at the place of occurrence. As a result both parties member became blood injured, blushed bombs and cocktails, broken cars, made fire on cars. During the confrontation [the applicant] injured [Mr A].

    At the moment [the applicant] has been issued Warrant of Arrest from [a court in] Dhaka and police personal searching for him to secure his arrest.

26. The prehearing submission then notes: ‘please refer to attached Court orders and Awami league letters, namely:

    a.An untranslated document with a  letterhead that the words Bangladesh National Party (BNP) in English and s a black and white image of the BNP flag (Tribunal file, f.38)

    b.A letter in English from [(an advocate at judge court)] to the applicant stating he is now involved ‘with murder and arms  case vide  (Tribunal file, f.39)

    c.A document in English titled ‘in the [court], Dhaka- State versus [applicant] and Others’ - ‘Warrant of arrest’ naming the applicant (Tribunal file, f. 40)

    d.A document in English which states in the [court], Dhaka, State versus [the applicant] & Others, Order Sheet.  It states that the case is a political arms case and the accused have absconded. It states sd/illegible Judicial magistrate Dhaka [date]/03 2014 (Tribunal file, f. 41)

    e.A typed document in English that purports to be a ‘Charge Sheet’ written by a police officer in [Town 1], Dhaka which names the applicant and one other person as the accused. The report contains a report of events that occurred [in] January 2014 and states ‘Accused are found guilty and lodging the case against the accused for affray and sedition’. Although there is no signature from the author of report it states Sd/illegible investigation Officer, [Town 1] P.S. Dhaka, [date]/02/2014 (Tribunal file, f. 42-43)

    f.A typed document in English that purports to be a ‘First information report’ from the duty officer at [Town 1] police station to the Officer in Charge describing events that occurred [in] January 2014 and requesting the necessary action be taken against the two accused, one of whom is named as the applicant. The document concludes Sd/ Illegible ([name]), Duty Office, [Town 1] P.S Dhaka, [date]/01/2014 (Tribunal file, f. 44-46).

    g.A typed document that in English titled ‘in the [court], Dhaka- State versus [applicant] and Others -  ‘Warrant of arrest’ naming the applicant (Tribunal file, f.47)

    h.A document in English which States in the [court], Dhaka, State versus [applicant] & Others, Order Sheet. It states the case is a ‘political murder case’ and the accused have ‘absconded’. It states sd/illegible Judicial magistrate Dhaka [date]/03/2014 (tribunal file, f. 48)

    i.A typed document in English that purports to be a ‘Charge Sheet’ written by a police officer in [Town 1], Dhaka which names the applicant and four other persons as the accused and the complaint as [Mr B], [official] of the Awami League, p.s [Town 1], Dist-Dhaka. The report contains an account of events [in] January 2014 and states ‘Accused are found guilty and lodging the case against the accused for affray and sedition’. Although there is no signature from the author of report it states Sd/illegible investigation Office, [Town 1] p.S Dhaka, [date]/02/2014 (Tribunal file f. 49-50)

    j.A typed document in English that purports to be a ‘First information Report’ written by the [official] of the Awami Legal, P.S [Town 1] and a police officer in [Town 1]  which names the applicant and four others as the accused. The report contains an account of events that occurred [in] January 2014 and requests that the necessary action is taken against the accused. It records Sd/ illegible [Mr B], [official], Awami Leaque [sic], [Town 1], p.s. Dhaka, [date]/01/2014. (Tribunal file, f. 51-53)

1. The documents share some common features. All of the documents bear a circular purple stamp and then a purple stamp, ‘Attested’, underneath which is an illegible signature and what appears to be a date and the stamped text – [name], Advocate & notary Public, whole of Bangladesh [address] Dhaka 1100.  The documents described at folios 40 -53 are in English and have the same font. The details on the order sheet and arrest warrant at folio 47-48 differ from details on those at folios 40-41.  Some of the documents state they have been translated from Bengali to English (folio 51-53).

   The Tribunal hearing

2. The applicant appeared before the Tribunal on 8 February 2016, at which time  the refugee and complementary protection criteria were explained to him. The Tribunal noted that a request had been made to take evidence from a witness. The applicant advised the Tribunal that the proposed witness had returned to Bangladesh yesterday following the death of his father; he was no longer available to give evidence. When asked at the outset of the hearing whether all the information he had provided in the course of applying for protection in Australia was true and correct, he said that it was. Asked whether there were any corrections he wished to make he indicated there were not.

3. When asked why he left Bangladesh, the applicant essentially reiterated the claims that are set out in the statement of claims and referred to in his entry interview. He said that he used to follow the BNP party; he was an important person in the BNP. He was responsible for collecting people for the procession. The opposition party saw these things; they saw that he had become a leader and he brought people to the meeting.  There was a meeting and he called a lot of people in the meeting and the next day at night at 8pm he went to a shop to buy some food, and when he was returning home a minibus came. He was blindfolded and kidnapped inside the bus.

4. The applicant claimed after he was abducted he was beaten– he could show the Tribunal the marks – they cut his arm and his leg – there is a mark on his leg. He was dumped on the side of the road. His neighbour was passing by and they checked and discovered he was still alive. They took him to a doctor’s clinic; he stayed there for one day and one night.  When he regained consciousness he came to know there were a lot of scars on his body. He said for three months he was lying on his bed; his brother helped him shower and go to the toilet. He came to know they were still looking for him.

5. The applicant claims that he left Dhaka and went to Chittagong where he stayed for nearly a month. He met a people smuggler who told him he could arrange to go somewhere else. When asked who would harm him if he returned to Bangladesh, he said Awami people. Asked why they would harm him, he said they didn’t want him to join the BNP party and become the leader of the BNP party.  When asked why he could not live in Chittagong (where he stayed for a month before he left Bangladesh), he said his life would not be safe there. Asked why not, he said they were looking for him. Asked how he knew this, he said his elder brother informed him all the time.

6. The applicant told the Tribunal he is still in touch with his family in Bangladesh. Asked if he was subject to an arrest warrant in Bangladesh, he said yes. Asked why, he said the Awami league had filed a false case against him. He had provided the arrest warrant to the Tribunal; his elder brother arranged to send it to him. He told the Tribunal he had been involved in the BNP since 2006. Asked whether there were any other reasons that he was afraid of returning to Bangladesh, he said that they will inform the police and file a false case against him and if they find him they will kill him.

7. The applicant confirmed that he lived in Dhaka before travelling to Chittagong.  From Chittagong he travelled out of Bangladesh to [Country 1] via boat. He claimed that he never had a passport; the middleman arranged everything for him. When asked how he was supporting himself in Australia, he indicated that he is not working, he is receiving Centrelink payments. Asked how he was paying for his migration agent – who he told the Tribunal charged him $2500– the applicant said he was paying in instalments; he is saving up the extra money that he has left after daily expenses. His uncle, who is in Australia, also has some money.

8. The Tribunal raised with the applicant concerns it had about the credibility of his claims and the documentation he had provided. Where relevant, the Tribunal’s concerns and the applicant’s responses are discussed below in the assessment of claims and evidence. The applicant was also invited to comment on country information concerning the consequences of departing Bangladesh illegally and the treatment of voluntary and involuntary returnees, as well as country information about the treatment of BNP members.

9. The applicant was also asked about the untranslated document provided to the Tribunal (folio 38) and the interpreter translated its contents in English and Bengali. It is purportedly an undated letter from the BNP which states that the applicant is a supporter of the BNP and describes him as [an official] of Jubo Dal  [this appears to be a reference to the youth wing of the BDP] and he has been harassed in his political activities and he is involved in a false case. He was arrested and he was in the jail. There is a current warrant in his name. There is no security in Bangladesh. The applicant was then asked whether he had ever been detained in Bangladesh, he said no.

10. Towards the end of the hearing, the applicant was provided with time to speak privately   with his representative. His representative made brief oral submissions: he said that based on the applicant’s evidence, he should be recognised as a refugee. The applicant reiterated his life was not safe; he said that Awami people were still looking for him; he also said that they went to his country home and from time to time there was torture and destruction in his home. It was put to him he had not mentioned this before, and he said he had not been asked. He said that whatever happened in his life he had told the Tribunal.

    ASSESSMENT OF CLAIMS AND EVIDENCE

11. The issues in this case are whether there is a real chance the applicant will suffer serious harm on return to Bangladesh for a Convention reason or whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk he will be significantly harmed. 

    Whether the applicant’s claims are credible

12. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters.  In assessing the credibility of the applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[1]  However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]

    [1] MIMA v Rajalingam (1999) 93 FCR 220

    [2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547

13. The Tribunal has issued guidelines on the assessment of credibility in protection visa cases, which state, in part:

    … The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant’s claim for a protection visa. For example, when assessing an applicant’s claims as to whether they meet the definition of refugee, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists. However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.

    The tribunal considers all the material before it and is not restricted to claims and evidence considered by the primary decision-maker. If the review applicant raises new claims or presents material for the first time to the tribunal, the tribunal will consider the credibility of what has been provided, including any reasons for why it was not provided earlier in the application process. There may be good reasons why new information or claims are presented by applicants at a later stage in the application process. These reasons may include stress, anxiety, inadequate immigration advice and uncertainty about the relevance of certain information to an applicant’s claims [footnotes omitted].

14. For all the reasons that are set out below, I have formed the view that the applicant is not a witness of truth. In forming an adverse view of the applicant’s credibility, I have had regard to the fact that he is a person of limited education who may have been anxious appearing before the Tribunal, as well as the poor quality of his representation before the Tribunal. However, even making allowances for these matters does not overcome my concerns about the credibility of the applicant’s claims.

15. In summary, despite claiming that he was an active member of the BNP the applicant was unable to identify the colours of the BNP party flag and his evidence about his involvement in the BNP was extremely vague. He was unable to provide any details about the policies of the BNP or how the BNP differs from the Awami league. His evidence about his position in the [club] was hesitant and changed over time and I formed the view he was struggling to recall his claims, rather than speaking about his experiences in Bangladesh. Also of significant concern: the applicant introduced new claims before the Tribunal that the Awami league has brought a false case against him after he left the country and – despite the fact the documents which  he provided indicate that this case is the result of a complaint that was made against him in January 2014, and  that a warrant of arrest issued in March 2014– told the Tribunal he did not raise this issue at the interview with the delegate in September 2014 because the false case was brought against him after this interview occurred.

    Claims that he was an active member of the BNP who was targeted by the Awami League

16. I was concerned that the applicant’s evidence about his involvement with the BNP was extremely vague and lacking in any meaningful detail about the political party of which he claimed to be an active member. Asked about his involvement in BNP, he told the Tribunal that he became involved in the BNP in 2006. Before this he was young: he saw all the members and went to the clubhouse, but he was not directly involved. When asked what activities he was involved in the BNP, he said he used to be a leader; he arranged meeting and rallies and collected people from the village. However, despite telling the Tribunal that he was an active member of the BNP who want to have a leadership role in the BNP, his evidence about his involvement in the BNP was extremely vague and, in my assessment, cast considerable doubt on whether he ever had any involvement with the BNP. When asked about the differences between the Awami league and the BNP, he said the Awami league political symbol was a boat. When asked whether he could describe any differences between the policies of the two parties, the applicant said the policy is they are in one side and we are on the other side. 

17. The applicant was asked if he could describe the BNP flag. He said that it’s a paddy leaf, but he could not provide any further information.  Asked if he could describe it more detail – what were the colours of the BNP flag?  He said it’s the paddy leaf. Asked again to identify the colours of the BNP flag and it was put to him that, if he had been involved in the BNP in the manner he had described, it would seem reasonable to expect he would know what colours the BNP party flag was. He said the paddy leaf was the symbol; how was he going to tell me the colours? When the paddy leaf is young it is one colour and when it is mature it is another. It was put to him that the colours of the BNP flag were green and red. At a later point in the hearing, after a break, he said that the flag is green and the symbol is the paddy leaf; when the paddy leaf matures it becomes golden – that is his symbol.  

18. While it is true that the BNP flag has a paddy leaf on it, I find it very difficult to accept that a person who was active in the BNP, would not know that the party flag was red and green. As I put to the applicant that the BNP flag is red and green also has an industrial wheel, a golden sheaf of paddy and a white star. Asked whether he knew what any of these things symbolised, he said what could they symbolise?  However, as I put him, the colours and items are symbolic. The BNP website provides a more detailed description:

    The upper half of this party’s flag will be red and its lower half will be green. An industrial wheel in black will be in the centre of the flag. A golden sheaf of paddy will rise from within the wheel with a white star on top of the paddy. The green symbolizes the country, red is the symbol of our liberation war, industrial symbolizes development and progress and the white star is the symbol of our national hopes and aspirations.[3]

    [3]

19. While I acknowledge that a BNP member might not be familiar with the meaning of the symbols on the BNP flag, it strains credulity that a member of the BNP who was involved in protests and processions would not be able to identify that the party flag was red and green.

20. I was also concerned that the applicant’s evidence about his involvement in the [club] was vague, hesitant and changed over time. Asked whether he had a particular position in the club, he said he did. When he was asked what his position was, there was a very long pause. Eventually the applicant said he was [official]. It was put to him that before the department he claimed he was [in a different role]. The applicant responded that [that role] is the same position as [official].  I found the applicant’s evidence about this aspect of his claims to be extremely hesitant and formed the view that the applicant was struggling to remember his claims, rather than recalling events which actually happened to him and this reinforced my doubts about the applicant’s claims.

21. I have considered the applicant’s claims that he was kidnapped in Bangladesh by members of the Awami league. The applicant told the Tribunal that he was kidnapped because he collected people for meetings on behalf of BNP and they saw him. He told the Tribunal that immediately before his kidnapping, there was a public meeting on behalf of BNP. He told the Tribunal his physical injuries are real: he has scars as a result of being beaten by the Awami league. I declined to view these scars. Doing so would not have assisted the applicant because, while I accept he has scars he has described, as I put to him they could have been obtained through any manner of random misadventures.

22. I did not find the applicant’s evidence that he was abducted and assaulted by members of the Awami league because of his involvement in the BNP to be persuasive. Overall, his evidence about his claimed involvement with the BNP was extremely vague. During the hearing,  it was put to the applicant that the delegate’s decision states:

    The applicant was asked a number of questions about the BNP. When asked about the policies and principles of the BNP, the applicant failed to provide a response. When asked why he chose to follow the BNP, the applicant sated he loved the BNP. When asked what it was he loved about the BNP, the applicant said he could explain it, that he just loved them. It was put to the applicant that if the BNP was something he loved so much that he was a participant in his activities it was reasonable that he might be able to provide some details about what it was that led him to be involved in the BNP. He responded the BNP would ensure law and order the Awami league did bad things.

23. It was put to the applicant that the delegate had concerns about his claims that he was actively involved in the BNP and, based on his evidence to the Tribunal, I also had doubts about whether he was ever actively involved in the BNP. He responded by saying he was telling the truth.  . I asked if he could provide any more detail about his involvement in the BNP. He said he did not have any more details. Later in the hearing, when the Tribunal put to him that his evidence about his involvement the BNP was so vague that it was difficult to accept he was ever actively involved in the BNP, he provided the name of a person who he said was the BNP leader in his local area at the time he was in Bangladesh, as well as the person who he said was the Awami league.

24. At the hearing the interpreter provided a simultaneous translation (in Bengali and English) of an untranslated letter the applicant has provided (folio 38) which purports to be from the BNP. The letter is undated and, based on the translation provided at the hearing, appears to be inconsistent with some aspects of the applicant’s claims (notably it refers to the applicant being in the jail, whereas, after the letter had been translated the applicant advised that he had never been detained in Bangladesh and his evidence to the Tribunal was the false case was brought against him after he left Bangladesh).  However, the letter has not been formally translated and, in any event, could easily have been fraudulently manufactured.[4] In these circumstances, I give this letter no weight.  

    [4] DFAT Country Report - Bangladesh, 20 October 2014, [5.41]-[5.42].

25. I put to the applicant that DFAT 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. DFAT has reported that opposition party members who are engaged in protest face a low risk of being arrested although opposition leaders or members with high profile may face a higher risk of arrest when engaged in political protests.[5] The applicant said that the Awami league is in power in Bangladesh; BNP supporters and BNP party members cannot live in Bangladesh at the moment – they are kidnapped in the darkness of night and killed.

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

26. I am mindful that the political environment in Bangladesh is volatile and often violent and the DFAT report is now over a year old. The most current overview of political violence in Bangladesh is obtainable from a Bangladeshi ‘national legal aid and human rights organization’, Ain o Salish Kendra (ASK),’[6] In August 2015, ASK reported:

    Political tension and violent acts continued in the early days of 2015. From 6 January 2015 there had been non-stop blockades all over the country by Bangladesh Nationalist Party (BNP) led 20-party alliance and continued till the second week of April 2015. According to estimates by newspapers, during the 55 days of blockades (until 1 March 2015) 60 persons have been killed in petrol bombs and fire. No one including women, children and the elderly have been spared from bomb and cocktail attacks and there were cases where vehicle fleets under police protection have come under attack, people have been burnt near the police station, and cars have been burnt in front of the police. But only in a very few cases the police were able to catch these miscreants red-handed.[7]

    [6] Ain O Salish Kendra (ASK) [Alam S] 2015, Annual Report 2014, 8 October [document created 14 September], pages 8 & 43 < <CISNET Library CISEC96CF13599> ASK has a Documentation Unit which ‘daily scans 9 newspapers and 5 magazines to compile a file of clippings about incidents of violence and rights violations within the country’; it uses this file to ‘update a digitalized data base’ and ‘regularly generates cumulative statistical tables. See, for e.g. [Ain o Salish Kendra (ASK)] 2015, ‘January-September 2015 ASK Documentation. Breakdown of Inter Party and Police Clashes. Political Violence’, n.d. [document created 18 October 2015] < <CISNET Library CISEC96CF13769>; ‘Source: Prothom Alo, Ittefaq, Samakal, Sangbad, Noyadiganto, Daily Star, New Age, Dhaka Tribune and Ain o Salish Kendra (ASK)’.

    [7] Ain o Salish Kendra (ASK) 2015, ‘Bangladesh: Failing to Fulfil Its Commitments’ < [119-138] at [124] at ‘1.3 General Human Rights Situation in 2015’, in The Asian NGO Network on National Human Rights Institutions (ANNI) 2015, 2015 ANNI Report on the Performance and Establishment of National Human Rights Institutions in Asia (Bangkok: Asian Forum for Human Rights and Development (FORUM-ASIA) Secretariat of ANNI, 31 August 2015 [document created 18 September 2015]) < <CISNET Library CISEC96CF13376>.

1. Other recent reports highlight the risks facing BNP activists who are engaged in political protests and blockades. In April 2015, the New York Times reported that since BNP’s campaign of political strikes and transport blockades, ‘more than 10 people have been killed in firebombings, and dozens of BNP officials and activists arrested. In August 2015 the Immigration and Refugee Board of Canada (IRBC) provided an update on the treatment of BNP leaders (noting that, in January 2015,  the BNP leaders have been arrested and charged various offences) and BNP members, noting reports that BNP leader-activists have been killed ‘extra-judicially’, BNP activists had been shot, tortured, and, in some cases, disappeared, as well as reports by the Economist that ‘more than 10 000 opposition activists have been arrested’ (footnotes omitted).[8]

   [8] Canada: Immigration and Refugee Board of Canada, Bangladesh: Bangladesh Nationalist Party (BNP), including its structure, leaders, membership and membership documents, factions, associated organizations and activities; treatment of members and supporters by authorities (September 2012-2015), 31 August 2015, BGD105262.E, available at: >

   While I have considered the available evidence about the risks facing BNP activists, the issue in this case is whether it is credible that the applicant was ever active in support of the BNP (including by attending protests or processions or organising people to join BNP processions or meetings) in any way.  His evidence about the BNP has been extremely vague and lacking in detail, and his evidence about his position in the [club] has been vague, hesitant, and shifted over time. I note the delegate was also concerned by the applicant’s inability to provide any details about the organisational structure of the [club] and did not accept he was [an official] of this club. I do not accept that the applicant had any formal role in the [club].

   Claims to be the subject of a false case that has been brought against him

2. I was also concerned about the credibility of the new claims the applicant raised before the Tribunal. The pre-hearing submissions claim that the applicant is the subject of an arrest warrant because he was involved in an altercation in Bangladesh January 2014 and refer to supporting documents, namely ‘attached Court orders and Awami league letters’. These claims were not raised before the Department and nor were the supporting documents presented to the Department. While the applicant’s delay in presenting this information, particularly when he was represented by a registered migration agent before the Department, is in itself cause for concern, there is a more fundamental problem with the claims set out in the pre-hearing submission. As I put to the applicant, in these submissions, under the heading ‘material facts’ it states:

   [In] January 2014 [the applicant] and his members of the BNP were going from [a] Road to [a] College gate on behalf of [name] and met face to face with Awami League [name]. They both started breaking, torturing and collusion at the place of occurrence.

3. The submission continues: as a result both parties were injured [there is also reference to bombs, cocktails and fires]. It states that during the confrontation [the applicant] injured [Mr A] and at the moment [the applicant] has been issued with a warrant for arrest from the [magistrate] and they are searching for his arrest. The submission states that it is against this background that the applicant wishes to claim refugee status and he believed due to past incidents his life would be in danger if he went back to Bangladesh. As noted above, and discussed with the applicant, the submission refers to, and is accompanied by, a series of documents which are typed in English, stamped & signed by a person who is purportedly a Government notary. The documents include: a report that is said to be from a member of the Awami league which is said to be about the incident that occurred [in] January 2014, a warrant for arrest that names the applicant, a charge sheet that names the applicant, and various other documents that name the applicant and indicate that various criminal charges have been brought against him.

4. I put to the applicant that the problem with this statement, and with the documents that purportedly corroborate it, is that he arrived in Australia [in] April 2013 and, in January 2014, he was in Australia. The applicant responded by agreeing that he was in Australia but stating that these documents (which he said had been sent to him by his brother) were from a false case that had been lodged against him after he came to Australia. I did not find this explanation persuasive. As I put to the applicant, the submissions that had been lodged on his behalf did not claim that the documents were part of a false case that had been lodged against the applicant. Instead, the submissions, which, according to the attestation that accompanied them, had been read and explained to the applicant and completely and accurately represented his claims for refugee status, record that the applicant was in Bangladesh [in] January 2014 and claim that on this day he, and other members of the BNP, had an altercation with members of the Awami league.

5. In response to the Tribunal’s concerns the applicant reiterated that, in January 2014 he was in Australia. He said they couldn’t find him so they lodged a false case against him. I note that the applicant did not claim that he was the unwitting victim of the negligence of his migration agent who put forward submissions that stated the applicant was involved in an altercation in Bangladesh at a time when he had been in Australia for almost a year. Neither the applicant nor his representative has offered any explanation for how these submissions came into being. As noted above, the submissions are accompanied by a signed attestation, in which the applicant declares it contents correctly represent his claims for protection. However, even allowing for the fact that the applicant has been poorly served by his migration agent, there are other reasons to find the applicant’s claims to be the target of a false case that has been brought against him are not credible.

6. Firstly, as I put to the applicant, it is difficult to understand why the Awami league would want to bring a false case against him months after he left Bangladesh. The applicant’s evidence was that he left Bangladesh in around March 2013 and went to [Country 1] and that the documents he had submitted were real documents that were part of a false case that had been brought against him after he left Bangladesh. I asked why, sometime after he left Bangladesh would anyone be motivated to bring a false case against him. The applicant reiterated that people in the Awami League brought his case against him. He also suggested that he was considered to be leader of the BNP in his area.

7. I do not accept that the applicant has adequately explained why members of the Awami league would be motivated to bring a false case against him over a year after he claims that he was assaulted and months after he left Bangladesh in March 2013.  The dates of the documents indicate the complaint was made against the applicant in January 2014, shortly after the elections in Bangladesh, but the applicant did not suggest that these events were linked to the Awami’s league’s decision to bring a false case against him. While I have considered the applicant’s evidence that he was an active member of the BNP, I consider his evidence about his involvement in the BNP to be vague and lacking in detail. I am not satisfied that he was a leader in the BNP in his area and nor do I accept that he has plausibly explained why members of the Awami league would be motivated to bring a false case against him in 2014, almost a year after he had left Bangladesh, and over a year after he claims he was abducted and assaulted.

8. Secondly, as I put to the applicant, he did not raise the issue of the false case that had been brought against him when he was interviewed by the delegate. When I asked whether he mentioned that there was a false case brought against him in his interview with the delegate in September 2014, he said at that time he did not have information. However, as I put to the applicant, the documents indicate that the case was brought against him in January 2014, well before his interview with the delegate [in] September 2014. He responded by saying that the case was lodged against him after the interview.

9. I do not accept the applicant has credibly explained why he did not mention that there was a false case that had been brought against him in the interview with the delegate. I found the applicant’s evidence about when he obtained the documents (he said his brother, who he gave evidence he was in regular contact with, gave them to him) very vague – he said ‘I forgot the dates’. I note that the documents have been signed illegibly and, under this signature, there appears to be a date – [date].5.15 – although the handwriting is unclear. However, irrespective of how and when these documents were sent to the applicant, I do not accept that the applicant has adequately explained why he did not know about the false case at the time of the interview with the delegate.

10. I have considered the documents which the applicant has submitted to the Tribunal, but I find they do not have any probative value. The documents are – with the exception of a letter purportedly from the BNP –typed in English. When I put to the applicant that I may form the view that these documents had been fraudulently produced, he claimed that the government was all powerful and BNP people had no power. He insisted these documents are genuine documents and he suggested that the Tribunal should make attempts to verify them. As I put to applicant, the documents are typed in English and furnished with red stickers and purple stamps by a person purporting to be a government notary and advocate in Bangladesh. Such documents could easily have been fraudulently produced using the details of a government notary in Bangladesh or procured through fraudulent means. I do not accept that there is any utility in attempting to verify such documentation and, in any event, as I put to the applicant, the country information indicates that is relatively easy to obtain fraudulent documentation in Bangladesh.[9] I do not accept that these documents assist the applicant. I give them no weight.

    Conclusions on credibility

    [9] DFAT Country Information Report: Bangladesh, [5.41]-[5.42].

11. For all the reasons that are set out above, I have formed the view that the applicant’s claims are not credible. I do not accept that the applicant was ever involved in arranging for people to attend BNP processions, demonstrations or meetings or that he had a particular position in the [club], or that he was actively involved in the BNP, including its youth wing, in anyway.  I do not accept that the applicant was ever actively involved in the BNP. It follows that I do not accept that the applicant was abducted and targeted by the Awami league because of his involvement in the BNP.  I reject his claims that he has attracted the adverse attention of the Awami league in their entirety. I do not accept that he was ever abducted and assaulted as claimed. I do not accept that the Awami league has threatened him or caused a false case to be brought against him or – as the applicant claimed late in the hearing – tortured and damaged his property. I do not accept that the Awami league members or the police are looking for the applicant or that his property has been damaged or that his family have been harmed by the Awami league for any reason. On the evidence before me and having regard to my assessment of the applicant’s credibility, I do not accept that the applicant is of any adverse interest to members of the Awami league or the authorities in Bangladesh for any of the reasons claimed.

12. I do not accept that the applicant has been truthful about the reasons that he decided to leave his home in Dhaka and travel to Chittagong. I do not accept that he left Bangladesh to save his life or because he was afraid of being harmed. I find his claims for protection have been fabricated in their entirety in the hope of securing residency in Australia. While the applicant’s statement refers his family being involved in land dispute with the Awami league, at the hearing the applicant did not claim to fear harm for this reason and, on the evidence before me, even if such a dispute existed, I do not accept that there is a real chance he would face harm of any type (including serious harm or significant harm) for this reason. While I have considered the possibility that there is a [club] that receives funding from the BNP, I do not accept that the applicant holds any position within this club.

13. Furthermore, while it is possible that the applicant considers himself to be a BNP supporter rather than Awami league supporter, the evidence does not support the conclusion that he is a politically active person and I do not accept he was ever involved in organising for people to attend BNP rallies or processions or that he was an active member of the BNP who participated in rallies, protests and other public political activity. For the reasons set out above, I do not accept he was ever was an active BNP member, as claimed,  and I do not accept that  he would be motivated to be active in support of the BNP if he returned to Bangladesh now, or in the reasonably foreseeable future.  

    Other matters

14. The applicant has not claimed to fear harm because he departed Bangladesh illegally and nor has he said he fears the consequences of having sought asylum abroad. However, for completeness, I note that the country information does not indicate that there is a real chance that the applicant will face serious harm or significant harm for these reasons. As I discussed with the applicant, DFAT reports Bangladesh accepts involuntary and voluntary returnees and, in DFAT’s assessment, people who return to Bangladesh, voluntarily or involuntarily, are unlikely to face adverse attention on their return. According to DFAT, thousands of Bangladeshis enter and leave the country every day and the return of failed asylum seekers is unlikely to be reported by airport authorities to the Department of Immigration and Passports, Ministry of Home Affairs or other agencies beyond the normal processes whereby returning nationals have their entry and exit from Bangladesh recorded.[10]  In response to this information,  the applicant reiterated that when the Awami league had power they could do anything; they were killing people in front of the police.  

    [10] DFAT Country Report - Bangladesh, 20 October 2014, [5.32]. 

15. With respect to the applicant breaching Bangladeshi law for leaving the country unlawfully, I have doubts about whether he did actually leave Bangladesh illegally. The applicant has said he left Bangladesh illegally to save his life; the Awami league was in power. Having found the applicant’s claims that he was of adverse interest to the authorities in Bangladesh to be lacking in credibility, it is not clear why the applicant would need to depart Bangladesh illegally. When this was put to him he said that he did not have time to obtain a passport; if he had taken the time to arrange for a passport he would have been killed. However, as I discussed him, his own evidence indicates he spent three months in his home area recovering from his injuries and then another month in Chittagong. He gave evidence that the people smuggler arranged everything. I note he also gave evidence that he had never been detained in Bangladesh in the past.  

16. Having regard to my findings of fact, I do not accept that the applicant is now, or was ever, of adverse interest to the authorities in Bangladesh for any reason .Despite my doubts that he left Bangladesh illegally, I have considered the possibility that he did so. As I discussed with the applicant, while the law which proscribes that leaving Bangladesh unlawfully can result in imprisonment up to a year or a fine, DFAT indicates that it is not aware of these penalties being enforced.[11]  He did not dispute this information but reiterated that he would be killed because the Awami league was in power and he wanted to become a leader in the BNP. These claims have been addressed in detail above.

    [11] DFAT Country Report - Bangladesh, 20 October 2014, [5.28].

17. With respect to the applicant’s illegal departure from Bangladesh, I am not satisfied that the evidence before me supports the conclusion that the law would be enforced against the applicant on his return to Bangladesh. Accordingly, because I do not accept that the law will be enforced against the applicant, I do not accept that there is a real chance that he will be imprisoned or otherwise subject to treatment that amounts to serious harm or significant harm for this reason if he returns to Bangladesh.  

    Conclusions with respect to refugee claims

18. I have concluded that the applicant is not a credible witness. I do not accept that he is now, or ever was, of adverse interest to the authorities in Bangladesh or to people involved with the Awami league. I do not accept that he was [an official] of the [club] or that he was actively involved in the BNP in any of the ways that he has claimed. Nor do I accept that he would seek to actively involve himself with the BNP in any way if he returned to Bangladesh. I accept that he has scars, but I do not accept that he received these injuries as a result of being abducted and assaulted by the Awami league as he has claimed. I do not accept that he is now the subject of a false case that has been brought against him.  Further, while I am prepared to accept that he left Bangladesh illegally and will return to Bangladesh as failed asylum seeker, I do not accept that there is a real chance he will suffer serious harm for these reasons.

19. Having considered the applicant’s claims individually and cumulatively, and having regard to my findings of fact above, I do not accept there is a real chance that he will suffer serious harm if he returns to Bangladesh, now or in the foreseeable future, for any of the reasons he has claimed.  On the evidence before me, I do not accept that he has a well-founded fear of being persecuted for his political opinion or any of the other Convention reasons if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.

    Conclusions with respect to complementary protection claims

20. Having found that [the applicant] is not a refugee, I have considered whether he meets the criteria for complementary protection. For the reasons set out above, I have found that the applicant is not a witness of truth and I do not accept that he was ever an active member of the BNP in the past or that he would become actively involved in supporting the BNP if he returned to Bangladesh now.  I have rejected his claims to have experienced harm in Bangladesh in the past in their entirety. While I am prepared to accept that he would return to Bangladesh as a failed asylum seeker who departed Bangladesh illegally, having regard to the country information and my findings of fact, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Bangladesh, there is a real risk he would suffer significant harm for these reasons. On the evidence before me, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Bangladesh, there is a real risk that he will suffer significant harm.

    CONCLUSION

21. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

1. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

   DECISION

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

   Frances Simmons
   Member