1416396 (Refugee)

1416396 (Refugee) [2016] AATA 3652 (1 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1416396
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Tania Flood
DATE:1 April 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 01 April 2016 at 10:02am
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

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).
The applicant, who claims to be a citizen of Bangladesh, applied for the visa on [date] July 2013 and the delegate refused to grant the visa on [date] September 2014.
The applicant appeared before the Tribunal on 13 January 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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).
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.
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’).
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.
The issues in this case are whether there is a real chance the applicant will suffer serious harm for a Convention reason on return to Bangladesh 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 that he will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
In his application for a Protection visa, the applicant makes the following claims:
He is a Sunni Muslim born on [date] in Dhaka Bangladesh.
He fears returning to Bangladesh because he will be seriously harmed due to his membership of a particular social group, young Bengali males involved in a land dispute with powerful relatives who are Awami League members.
His father owns his own business and is a devout Muslim and supporter of Jamiat Islami.
His problems began in late 2011 early 2012. His paternal grandmother inherited the home that his father and their family were living in after his paternal grandfather passed away. One day in November 2011, approximately one month before his paternal grandmother passed away his paternal uncle, [Mr A], came to their house and told his father he was taking his grandmother to hospital for treatment. He brought her home three days later but her condition had worsened. She told them he did not take her to the hospital but was taken to the land registry and forced to give thumb prints. She did not know what this was for as she was illiterate.
They then took her to the hospital and a few days later she passed away in hospital in December 2011. A couple of days later they found out that [Mr A] had transferred his grandmother’s property to himself. [Mr A] and his son came to their house and told his father that the house had been given to them. He told them they had to leave the house or he would forcefully evict them. He came repeatedly to warn them that if they did not move they would harm them and remove them by force.
He personally spoke to [Mr B], [Mr A]’s son, and told him he would seek legal assistance to get the house back. He insisted that there was nothing they could do.
[Mr A] is a leader and supporter of the Awami League in their village and neighbouring villages. His son [Mr B] is very dangerous as he is an influential leader and cadre in the Awami League and openly carries guns and shoots at people. [Mr A]’s mother-in-laws brother, [Mr C] was also [an official] and Awami League leader and he abused his power in their local area. He would forcibly remove people from their homes and confiscate their property. At the moment the Awami League is in power and can do whatever they want.
Approximately one month after the first warning from [Mr A] he went to the police station to report the threats and was asked to return the next day to file the case because they were very busy that day. The next day he went to the [name] police station in Dhaka by rickshaw. After only 10-15 minutes into the journey the rickshaw he was in was stopped by two to three people on the road. They were then joined by another three or four people whom he did not recognise. He was beaten with hockey sticks and they said they would show him the way to the police station. The rickshaw driver was also attacked and ran away. He was beaten on the head and entire body and was bleeding from the nose. They kept asking him if he was going to the police station and beat him until he was unconscious. He woke up in [name] hospital having sustained injuries to his arm, leg and hand. His leg was fractured and he still feels pain as a result. He believes that the police informed [Mr B] that he was filing a report against him and that [Mr B] organised the men to beat him.
He was hospitalised for 15-16 days and then went to stay at his maternal grandparent’s home as his family feared he would be killed if he went home. His maternal uncle found out that [Mr B] and his group were searching for him around the area where his maternal grandparents are living.
His brother-in-law [Mr D], asked him to go and live with him and his [sibling] in [Village 1]. After he left his maternal grandparents home [Mr B] came their searching for him and destroyed some of their furniture.
[Village 1] is about two hours by bus from Dhaka and he lived there for approximately 2 months. [Mr B] had told his parents he would find him wherever he was in Bangladesh and he believes he knew that he was hiding in [Village 1]. [Mr D] also informed him that [Mr B] was searching for him in [Village 1]. He had started asking people in [Village 1] about him and these people informed his brother-in-law. During this time, [Mr D] organised for his to escape Bangladesh. He arranged for an agent to organise his travel to [Country 1].
While he was in hiding [Mr B] and members of the Awami League would come to his father’s house asking about him. His father told him that while he was in [Country 1] they told him that if they found him they would kill him. They also told his father to leave the house and that they would destroy it. On one of those visits they destroyed property at his father’s place. Eventually [Mr B] destroyed the home his family was living in. He does not know the exact date but it happened after he left Bangladesh. His family was forced to move somewhere else in Dhaka and [Mr B] has built a new house in its place.
He left Bangladesh in about April 2012 and travelled by boat to [Country 2] and then to [Country 1]. He was living unlawfully in [Country 1] for approximately 10 months and then left for [Country 3] in February 2013 by boat. He left [Country 3] in March 2013 and arrived in Australia on [date] March 2013. In [Country 3] he met a man called [name] who arranged his escape from [Country 1] to Australia.
[Mr B] has a lot of power and will kill him if he tries to claim his share of his paternal grandmother’s property or if he finds out that he has returned to Bangladesh.
The authorities in Bangladesh cannot protect him. The Awami League is in power and [Mr B] is the leader of the party and has strong connections with the group. The Awami League has strong influence and he believes that the authorities in Bangladesh will actually harm him.
The above claims are consistent with the claims recorded in the applicant’s entry interview dated [in] April 2013.
On [date] September 2014, the applicant’s representative provided a written submission which contains the following information:
The applicant’s father is a supporter of Jamat-e-Islami and regularly attends their meetings. His family has been targeted because of their imputed political opinion as they are not Awami League supporters. His persecutors are not only high level Awami League members, but they are also members of his family, who are residing in his village. His cousin has now built a house on the applicant’s land which gives him more reason to pursue the applicant if he returns to Bangladesh. If the applicant’s family had been supporters of the Awami League they would have had police protection. Reference is made to country information which demonstrates the Awami League Government’s ability to rule without consequence.
With respect to relocation, the applicant tried to relocate to two other locations in Bangladesh but was found by his cousin and his political network. Further, he has no family support elsewhere in Bangladesh and it is unreasonable to expect him to relocate in such circumstances. If he were to move elsewhere in Bangladesh with the intention to reclaim his land, he would be sought after by his cousin and killed.
The applicant’s persecutors are primarily non-state actors but prima facie they are politically-affiliated activists. Because, through the nature of their political affiliations with the ruling party, they act with impunity and are implicitly supported by the Bangladeshi authorities and therefore closely linked to the state. This makes it more likely that a victim of persecution in one place will be similarly vulnerable in another place within the state. Country information is referenced which points to corruption and coercion within law enforcement agencies.
The applicant intends to reclaim his family’s land and will therefore be seen as a threat to his uncle and cousin. He cannot seek police protection because when he attempted to do so in the past the police informed his cousin and uncle who then ordered their political network to physically assault him.
It is submitted that the applicant would suffer persecution on the grounds of his imputed political opinion, due to his father’s support of Jamat-e-Islami and due to his land dispute with politically powerful male relatives who still reside in his village.
The submission also addressed various concerns raised by the Delegate at interview. Relevantly, it is submitted:
His family could not refuse their uncle taking their grandmother to the hospital as he is a very powerful man.
Their family searched for his grandmother in hospitals in the area at other relative’s homes.
The applicant’s responses to questions about when his grandmother told the family she had been taken to the land office were not inconsistent. It was after she was returned by his uncle.
They did not take immediate action to safeguard the family’s land because their first priority at the time was to attend to their dying grandmother.
The applicant’s answer to questions about the timing of his grandmother’s death amount to only a very minor inconsistency which should not be given weight.
The applicant’s answers to questions about the number of people involved in his assault and his injuries were generally consistent.
The applicant did remain in hospital for 16 days. He still feels pain in his leg, has scars on his leg and cannot stand for lengthy periods or straighten his leg.
The medical certificate provided is in English and this could explain why medical terminology was not used.
The group which fix problems for [Mr B] are located in [Village 1] and were the ones looking for the applicant. His brother-in-law encountered them on the street and this is how he came to know that the network was looking for him.
The applicant listed his village address as his address in the entry interview because it was his last known address at that time.
While it is his father’s land it affects him too and this is why he took part in protests to get it back. His father is getting old and he is therefore not physically in a position to protest against politically powerful relatives. He would have inherited this land from his father and this is the reason he went to the police to make a complaint. As his father did not make the complaint he has not been targeted by his uncle and cousin. He is the [son] in the family, [siblings] are married, one [sibling] is living in [Country 4] and the [sibling] is not seen as a threat as [sibling] did not take action to reclaim the land. It is plausible that the applicant is the only one in the family who poses a threat to his uncle and cousin.
Although it has been several years since the events took place, the applicant attempted to relocate but was always found and threatened. If he returns he will still be sought after, especially as he intends to reclaim the land and this will pose a threat to his relatives who have now built a house on the land. Further there is ample evidence to support that the Awami League is supported by the police and that police corruption in Bangladesh is high.
The applicant did not approach the UNHCR in [Country 1] because he was scared of being caught and returned to Bangladesh as he was in [Country 1] unlawfully.
On 25 February 2016, the Tribunal wrote the applicant pursuant to s.424A of the Act asking the applicant to comment on or respond to the following information:
A country information request (CI[number]) regarding Awami League membership in Bangladesh located no information on the Awami League and the names [Mr B] or [Mr C] or [Mr C with different spelling] or the office/s of leader or [official] in [name] Village. Sources consulted were CISNET, Twitter and internet sites (including Bangladesh Awami League >
On [date] March 2016 the applicant requested an extension of time to provide further information in respect of the above which was granted by the Tribunal. On [date] March 2016 the applicant provided the following response:
As per a document produced by [name] Union Parishad Office, [Mr C], served two terms as [official] from 1987 to 1992 and from 1997 to 2003. He is not currently the [official].
Prior to 22 March 2016 political parties could not participate in Union Parishad [official] Elections although [official] candidates’ are associated with political parties. In the Union Parishad [official] election they declared themselves independent candidates or a candidate of civic society. For that reason the Union Parishad [official]’s name does not appear on the Party website.
The Union Parishad [official] is the lowest level of government. Many political incidents at the grass roots level are not reported in the media and the state government does not provide assistance. [Mr C] takes advantage of his Awami League connections to conduct illegal activities.
[Mr A] has political connections with the local Awami League and is a relative of [Mr C]. [Mr A] has influence in their village and in neighbouring villages. He does not hold any political position in the Awami League but has direct connection to leaders.
[Mr B] is the [son] of [Mr A]. He is an influential leader and cadre of the Awami League; is dangerous and openly carries guns and shoots people.
In Bangladesh a single doctor can give treatment in a clinic. If the clinic is a private clinic then the doctor can help all kinds of patients. He was genuinely injured and the medical certificate he has provided is genuine.
Country of reference
A copy of a Bangladesh Birth Certificate for [the applicant] with birth date [date] appears on the Department file which is consistent with the applicant’s claimed identity and nationality. The applicant stated at hearing that he does not have citizenship of any other country or the right to enter and reside in any other country. In the absence of any information to the contrary the Tribunal accepts that Bangladesh is the applicant’s country of nationality for the purposes of the Convention and also the receiving country for the purposes s.36 (2) (aa) of the Act.
Assessment of claims
During the hearing the Tribunal discussed with the applicant his background, education, family composition and employment in Bangladesh, as well as the reasons he left Bangladesh and his fears of returning.
The applicant informed the Tribunal that his father, mother, [and siblings] continue living in Bangladesh and that he has another [sibling] who is living in [Country 4]. When asked what contact he has with his family the applicant stated that he does not know where his family are living in Bangladesh. He said he thinks his last contact with his parents was six or seven months ago but that since then he hasn’t been able to reach them by telephone. He said that he is also unable to contact his [siblings] and has no contact with his [sibling] in [Country 4]. He said his [siblings] do not want him to contact them in case his whereabouts are discovered and he doesn’t know why his [sibling] in [Country 4] is not in contact with him. The Tribunal suggested that it was unusual he would not be in contact with any of his family as it would appear unlikely that this would place his family at any risk or lead to him being located. He said that it is painful for him to talk to his family and that it causes him to cry.
The applicant also informed the Tribunal that his father is no longer able to conduct any business because they are in hiding and moving around a lot. When asked how the family is managing to survive he could not say. The applicant said that he learnt from a friend that his parents were beaten and that the remainder of their family property has also been seized by his uncle and cousin. He said this property was in his father’s name and consists of farmland and a property adjacent to their former home. Upon further discussion he confirmed that the beating he was referring to happened soon after he left Bangladesh and occurred at their former home before it was confiscated and subsequently destroyed. The Tribunal suggested to the applicant that his evidence indicates his friend knows where his parents are living and that it is therefore difficult to accept his claim to not know where they are currently residing. He said that the friend only met them on the street and doesn’t know where they are living.

The Tribunal asked the applicant what action his parents have taken to recover the remaining family property which he claims was subsequently taken. He said they cannot do anything; that he had gone to the police in relation to the former incident but was not assisted. He said his uncle and cousin have the law in their pocket.
The applicant confirmed that his uncle is his father’s [sibling]. When asked who would ordinarily have inherited his grandmothers property he said it would have gone to his father because they were living with her and taking care of her. He said that his uncle surely thought his grandmother would leave the property to his father and this is why he made her transfer the title to his name.
The applicant was asked what role his uncle plays in politics and/or the Awami League. He said he is a political leader and that his son [Mr B], roams around openly brandishing a pistol. When pressed for further details about his uncle’s political involvement he said he attends meetings and that his maternal-in-law, [Mr C], is the local area [official] of the Awami League. The applicant was asked again what role his uncle plays in politics such that he is so powerful. He confirmed his uncle is not an elected politician or office holder but said he used to arrange meetings and would sit next to the [official] at these meetings. He confirmed his uncle does not appear to work and thrives on forcefully removing other people’s property. The Tribunal suggested that it is difficult to see how his uncle, who does not work, and doesn’t appear to hold any significant position within the Awami League, can be said to be so powerful. When asked what role his cousin [Mr B] plays in the Awami League he said he does not know exactly but that [Mr B] tells people he is the [position] of the local area.
The Tribunal put it to the applicant that it has not been able to source any information or news reports, past or present, which identify his relatives as office bearers or influential people in the local Awami League. The applicant then claimed that [Mr C] is no longer the [official].
The Tribunal asked the applicant what his family’s relationship with his uncle was like prior to the claimed events. He said that his father didn’t like his uncle because of his behaviour and that as a result their family contact was limited. He said his father supported Jamat-e-Islami and that this sometimes caused arguments between them.
The Tribunal asked what property his uncle held in his own right and he said he has amassed vast properties. He said he couldn’t say how long he has been forcefully expropriating other people’s properties. He said his cousin has been known to shoot people over such incidents. The Tribunal asked why his uncle would need to take their family property given he has vast property holdings. The applicant could not say why but stated that he is capable of taking what he wants, when he wants it.
The Tribunal indicated that it was having difficulty seeing how the claimed property seizure is linked to his father’s support of Jamat-e-Islami and that if anything it appeared to be the actions of an unscrupulous, dishonest and intimidating person. The applicant reiterated his statement that his father and uncle have argued over political issues in the past and said this is why he took their property.
The applicant was asked what transpired between his uncle and his grandmother before her death and he relayed a not dissimilar account of events to that provided in his written statement and oral advice to the Delegate. Namely that his uncle came to take their ailing grandmother to the clinic for treatment but instead took her to the land registry to sign over her property to him. Upon her return home she had to be taken to the clinic where she informed them of this but later died about a week later.
The applicant informed the Tribunal that about one month after his grandmother’s death his uncle and [Mr B] came to inform them that the property had been transferred to their name. He said that it was then that they knew for certain what had happened. The Tribunal suggested it was unusual that upon learning of what had transpired from his grandmother at the clinic they didn’t think to look into the matter any further until such time as their uncle came to the house making demands about one month after his grandmother’s death. He said his family was very sad about the death of their grandmother.
The Tribunal pointed out that it was having difficulty understanding why his uncle would have gone to the trouble of getting their grandmother to sign over the title of their former home when he was able to seize the remaining property by force without any pretence of legal intervention. He said that it was because their home was in their grandmother’s name. The Tribunal pointed out that the applicant had said the remaining property was in his father’s name and yet his uncle was able to simply seize that land. The Tribunal asked why he could not have done the same with respect to his grandmother’s property. The applicant stated that if he had been present they wouldn’t have been able to do it. The Tribunal indicated that it did not appear he had done much at all to retain their former home when faced with a similar situation before he left Bangladesh, and reminded the applicant that he said his uncle and [Mr B] are known for forcefully seizing property and threatening and even shooting people over it. The Tribunal also noted that the applicant appears to have made no effort to commence any legal proceedings to recover their property. He said he tried unsuccessfully to lodge a complaint at the police station.
The applicant was asked why he waited one month after his grandmother’s passing to go to the police station and asked why his father had not accompanied him given he was the head of the household and the person most likely to inherit the property. He said he went to the police station because they were being told regularly to leave the house. He said that his father’s property is also his property and his father didn’t want to be associated with the threats. The Tribunal indicated it was having difficulty understanding his father’s lack of action in the circumstances.
The applicant was asked what happened at the police station. He said he told them he wanted to lodge a case against his uncle and when they learned who was involved they told him to come back the next day as they were too busy at present.
The applicant provided a largely consistent account of the incident which followed when he was attacked on his way to the police station the following day. The Tribunal enquired about the injuries he had sustained and he spoke about an injury to his thumb and a cut to the leg. He also said he was struck on the head and body which caused a nose bleed. When asked what treatment he received he said he was given some medications and his leg was bandaged. The Tribunal put it to the applicant that the injuries he sustained and the corresponding treatment he received don’t seem to equate with the need to stay in hospital for 15-16 days and that it appears more likely he would have been sent home the same day or possibly the next day. He said that he could not even get up from the bed and this is why he stayed so long in hospital.
The Tribunal inquired why the medical report which has been provided is written in English and asked when and how it was obtained. The applicant did not know why it was written in English but suggested it was not unusual. Further, he confirmed it was obtained after he came to Australia. The Tribunal suggested it would have been more appropriate in the circumstances to obtain a report on his release from hospital and not several months later. He said he didn’t think of it at the time and he knew then he couldn’t do anything further about it.
The Tribunal put it to the applicant that it had concerns, as did the Delegate, about the authenticity of the medical report because it is written by a medical officer from the Department of Oncology. The Tribunal questioned why a doctor from a specialist department responsible for the treatment of cancer would have treated him for the injuries he sustained. Further, the Tribunal pointed out that country information[1] indicates that it is not difficult to obtain fraudulent documents in Bangladesh. The applicant replied that in Bangladesh the doctors treat all conditions and that it is possible the doctor also works outside his speciality.
[1] DFAT Country Report, Bangladesh, 20 October 2014; Immigration and Refugee Board of Canada, ‘Bangladesh: reports of fraudulent documents’, 20 September 2010; UK Home Office, Country Information and Guidance, Bangladesh, Background Information including actors of protection, and internal relocation, November 2014
After his release from hospital the applicant claims he stayed for between 15 and 25 days at his maternal grandfather’s house in [name] village and thereafter with his [sibling] in [Village 1] for about two months. He said that he left both hiding places after learning that [Mr B] was looking for him.
The Tribunal indicated that the places where he sought refuge would have been obvious places for his uncle and [Mr B] to look for him yet they never forced their way into either house to apprehend him. The applicant insisted he left both houses before they were able to find him. In further discussion the applicant stated that while he was residing at his [sibling]’s house he interacted with numerous people coming and going from the house but he did not know who they were and whether or not they were linked to the people searching for him. The Tribunal put it to the applicant that it appears he was living quite openly at his [sibling]’s house, interacting with strangers, without any fear of consequence and that this was highly unusual in the circumstances. The Tribunal suggested that this behaviour does not indicate he was living in hiding as claimed. Further the Tribunal reiterated that he spent about three months living in locations which appear to be obvious hiding places but wasn’t harmed.
When asked what he fears will happen if he returns to Bangladesh he said he will be killed because he will try to get the properties back. He said that his parents are old and sick and there is no-one else who can do it. He said he grew up there and cannot accept what has happened. He said they have deprived him of many things in life including being able to see his parents.
The Tribunal put it to the applicant that it doesn’t appear he made much effort to reclaim his property while in Bangladesh and asked what he has done about it since arriving in Australia. He confirmed he hasn’t sought any legal advice or taken any steps to reclaim the property. He said that now he has some security here he is thinking he will do something in future. He said if he returns to Bangladesh he won’t have anywhere else to live and will therefore have to try to get the property back. When asked how he would do this he said he did not know and will have to make some decisions about that in the future.
When asked why he could not relocate to another part of Bangladesh to avoid any possible harm he said that he tried to live in other locations before he left but was unable to achieve any security. The Tribunal acknowledged the applicants claim to have relocated twice but pointed out that he had moved within the same locality as his aggressors where it appears logical they would look for him. The Tribunal questioned why he could not move to a different location altogether where his presence would be unknown. In this regard, the Tribunal noted that the applicant managed to come to Australia and live here without familial support, that he obtained a qualification in [course] after school and previously worked as [occupations] in Bangladesh. Further the Tribunal pointed out that he is a single man without any dependants and for these reasons it therefore appears reasonable that he could relocate elsewhere in Bangladesh. The applicant replied that his uncle and cousin will know if he has returned to Bangladesh through their network. He said they will be aware of his return immediately upon his arrival at the airport. The Tribunal suggested it was having difficulty understanding how that would be possible given that thousands of people come and go through the airport every day. The applicant said they know he is living outside the country and they have connections at the airport.
The applicant confirmed he has no other fears of returning to Bangladesh.
The Tribunal summarised its concerns with the applicant, namely, that it doesn’t appear his uncle or [Mr B] are as powerful as claimed or that they hold influential positions within the Awami League; that it is difficult to understand why his uncle would have needed to pursue a legal remedy to take his grandmothers property while being able to take his father’s property with no such difficulty; that his account of the physical attack does not accord with his claimed need to spend 15 days in hospital; that it appears implausible that a doctor from the Oncology department would have treated him for the injuries claimed; that he sought refuge with family members in nearby locations and was not detected in about three months; that his actions since leaving Bangladesh don’t appear to support he is motivated to reclaim his family property if he returns to Bangladesh and that even if his claims are accepted it appears he could safely and reasonably relocate elsewhere in Bangladesh.
Findings and reasoning
As discussed with the applicant at hearing, the Tribunal has concerns about the plausibility and credibility of significant aspects of his claims and evidence.
Firstly, the applicant claims that he is not in contact with any of his family and does not know where his parents are living or hiding. Even if the Tribunal were to accept the applicant’s family in Bangladesh are reluctant to be in contact with him for his and their safety, this does not explain why he is not able to be in contact with his [sibling] in [Country 4]. The Tribunal does not accept that the applicant refrains from contacting his family because it is too painful. It is clear from the emotion displayed by the applicant at hearing that he cares for and misses his family and even if contact is at times painful the Tribunal considers the benefit of maintaining contact would outweigh any disadvantage. Further, that a friend of the applicant’s ran into his parents on the street and learnt of the further property seizures, yet never enquired about their whereabouts, appears implausible. Also, the accidental meeting in a public place is counter to the claims made by the applicant about his family living in hiding. The Tribunal does not accept that the applicant has no contact with his parents and other family members and is of the view his parents are not living in hiding. The Tribunal is of the view the applicant is claiming not to know the whereabouts of his parents in a bid to strengthen his claim that his uncle and cousin maintain an interest in harming him and his family.
Secondly, the applicant claims that his uncle and cousin are very powerful people within the local Awami League branch and this is why they are able to act with impunity, frequently seizing people’s property without consequence. The description the applicant has provided of his uncle’s and cousin’s role in the party is vague and lacking in detail and does not in the Tribunal’s view support that they are powerful or politically connected people. Further, as discussed with the applicant at hearing the Tribunal was unable to locate any independent news reports or information to support that his uncle and/or his uncle’s in-law, [Mr C] are prominent local leaders of the Awami League.
Based on the information provided in the applicant’s submission dated [in] March 2016 the Tribunal is prepared to accept that [Mr C] was a former [official] of a Union Parishad. Based on the applicant’s submission, at the time he was in office, [officials] were elected as independent candidates. There continues to be no evidence before the Tribunal as to whether [Mr C] is a member of the Awami League or associated with the Awami League. Other than his own claims, the submission also provides no further evidence that either [Mr A] or his son, [Mr B] are leaders or influential persons within the Awami League. The Tribunal remains unconvinced that [Mr C], [Mr A] or his son [Mr B] are members or influential people within the Awami League. Nor is there any information before the Tribunal, apart from the applicant’s claims, to support that any of these people wield power in the local area for other reasons.
Thirdly, the new claims introduced at hearing regarding the further seizure of the applicant’s father’s property and land by his uncle and cousin cause the Tribunal to doubt that the first premises was in fact ever unfairly taken from them in the manner claimed. The Tribunal finds it highly implausible that the applicant’s powerful uncle went to the trouble of putting their ailing grandmother through the ordeal of signing over the property to him when it is claimed he was simply able to seize his father’s remaining property despite the property title being held by his father and given their claimed history of involvement in such illegal activity. The Tribunal seriously questions the credibility of these events taking place.
Fourthly, the Tribunal finds it significant that the applicant’s family waited for at least one month after his grandmother’s death to take any action to safeguard their family home. The applicant claims his family was made aware of the situation when his grandmother first returned home from the land registry but they did not look into the matter further until approached about one month later by his uncle. While the Tribunal accepts the family had a funeral to attend to, given their family home was about to be seized from under them, and given that it was about a month between events, the Tribunal expects they would have taken a more proactive approach then what is claimed.
Fifthly, as discussed with the applicant at hearing, the Tribunal has serious doubts about the truthfulness of the claimed attack upon the applicant. The injuries which the applicant claims to have sustained do not equate, in the Tribunal’s view, with the need for a hospital stay of 15-16 days. Also, the Tribunal remains unconvinced that the medical report which has been provided is reliable. The Tribunal accepts the applicant’s submission of [date] March 2016 that clinic doctors are required to treat all patients that present for treatment regardless of the injury or ailment. However, the Tribunal is not persuaded that a specialist medical officer using the stamp of the Department of Oncology, rather than the actual clinic, would be based in a local clinic and providing such generalised treatment. Together with the independent country information referenced above regarding document fraud in Bangladesh the Tribunal is not persuaded the medical report from Dr [name] can be relied upon and has given no weight to it. While the applicant may have a scarred and injured leg, the Tribunal does not accept this is due to the claimed attack instigated by either his uncle or cousin [Mr B].
Sixthly, the Tribunal finds it improbable that the applicant was able to reside for approximately 3 months in close family members’ homes, in relatively close proximity to his village and not be located by his uncle and cousin, who it could reasonably be assumed would be aware of, or able to easily find out, the location of those family members. Further, the Tribunal questions why the applicant would have sought refuge in those locations, and not elsewhere in Bangladesh, if he feared serious harm from his uncle or cousin. The Tribunal does not accept that the applicant’s uncle or cousin were searching for him with a view to harm him or that the applicant was in hiding for 3 months before he departed Bangladesh.

Lastly, the applicant did not persuade the Tribunal that he has any plan or strategy underway or at the very least in mind, to make further attempts to recover his family property if indeed it was taken. It is clear he has made no efforts to even enquire into this possibility since being in Australia and as discussed above, his claimed action in Bangladesh was minimal. Apart from claiming to attempt to report the matter to the police he reported no attempts to seek or engage legal advice or to commence any court proceedings to rectify the property seizures.
The Tribunal acknowledges that the applicant has been relatively consistent in the claims he has made. However, having regard to the above concerns, the Tribunal is not satisfied the applicant’s claims are credible. The Tribunal does not accept that the applicant’s family property was seized by his uncle and cousin before he departed Bangladesh; that further property has been seized since his departure from Bangladesh or that he made a failed attempt to report the matter to the police which resulted in him being beaten and hospitalised. The Tribunal considers the applicant has fabricated his claims in a bid to gain a Protection visa in Australia. It follows that the Tribunal finds the applicant will not make any attempt to recover any family property on return to Bangladesh thereby putting himself at any risk of harm for this reason.
While the claim that the applicant will suffer persecution because of his imputed political opinion due to his father’s support of Jaamat-e-Islami (JI) or because his father and uncle are from different political parties appears to be linked to the land dispute, for completeness the Tribunal has considered this claim in a more general sense. Given the credibility concerns highlighted above, the Tribunal is not satisfied that the applicant’s father is indeed a supporter or member of JI or from a different political party to his brother. Despite being asked at hearing if he had fears for his safety in Bangladesh for any other reason the applicant stated that his fears were restricted to the circumstances of the property dispute. There are no claims before the Tribunal of any past harm arising from or in connection with his father’s political affiliation for reasons other than the claimed property dispute.
Even if the Tribunal were to accept the applicant’s father is a member and supporter of JI or from a different political party than his brother independent country information does not support that such membership or support will of itself give rise to a well-founded fear of persecution in Bangladesh. For instance:
In 2014 DFAT[2] reported:
…. the Awami League Government has limited the political activities of BNP and JI and high profile members have been arrested. In August 2013, the Supreme Court disqualified JI from participating in the January 2014 elections on the grounds that its charter was unconstitutional because it prevented women and non-Muslims from serving in political or bureaucratic positions. In response to the ban, hundreds of JI members and supporters rioted in Dhaka. The state responded by arresting rioters, closing JI offices and banning JI from conducting further rallies.
…. The majority of BNP and JI supporters arrested at protests or riots were released on bail to face charges at a later date, or released without charge shortly after arrest. Some BNP or JI leaders were held in custody for longer periods without charge. A small number of BNP and JI leaders remain in custody without charge. The majority have been treated humanely during their detention.
…. DFAT assesses that supporters or members of political parties in Bangladesh are not at risk of being arrested or living in fear of violence on a day-to-day basis due to their political affiliations. Opposition leaders or members with high profiles face a low risk of being individually targeted for arrest and detention due to engagement in general political activities. Opposition party members engaged in protests face a low risk of being arrested. However, opposition leaders, or members with high profiles, may face a higher risk of arrest when engaged in political protests.
[2] DFAT Country Report, Bangladesh, 20 October 2014
In 2015 the UK Home Office[3] reported that membership of groups opposed to the current government does not of itself give rise to a well-founded fear of persecution in Bangladesh and the risk of harm would depend on the profile of a person and the extent to which they may have come to the adverse attention of the authorities or opposition members.
[3] UK Home Office, Country Information and Guidance, Bangladesh: Opposition to the government, February 2015
It is claimed that the applicant’s father is a supporter of Jaamat-e-Islami and regularly attends meetings. There is no suggestion, on the written or oral evidence before the Tribunal that the applicant’s father is a leader or high profile supporter of JI or any other party. While the Tribunal acknowledges the submission made on the applicant’s behalf that care should be taken when assessing whether fear is well-founded by reference to information about low level Jaamat-e-Islami members generally, in view of the evidence and information before it, the Tribunal is not satisfied, in the absence of any claimed past harm and in view of the description of his father’s level of political involvement, that any harm will come to the applicant on return to Bangladesh for reason of his father’s political activity and/or any imputed political opinion arising from this.
For all the above reasons, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for a Convention reason if he were to return 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.
Having concluded that the applicant does not meet the refugee criterion in s.36 (2) (a) of the Act, the Tribunal has considered the alternative criterion in s.36 (2) (aa) of the Act. For the same reasons already articulated, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk he will be significantly harmed for the reasons claimed or any other reason. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36 (2) (aa) of the Act.
There is no suggestion that the applicant satisfies s.36 (2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36 (2) (a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36 (2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Tania Flood
Member

[2016] AATA 3652

1 April 2016

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction