1417611 (Refugee)

1417611 (Refugee) [2016] AATA 3540 (3 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1417611
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:David McCulloch
DATE:3 March 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 03 March 2016 at 5:48pm

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 [in] August 2013 and the delegate refused to grant the visa [in] October 2014.
The applicant appeared before the Tribunal on 16 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.
The applicant was represented in relation to the review by his registered migration agent.
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, 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 Tribunal has before it DFAT Country Report – Bangladesh, 20 October 2014. The issue in this case is the credibility of the applicant and whether, on his accepted claims, he fulfils the criteria for protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and claims
The applicant arrived in Australia by boat [in] June 2013 as an Illegal Maritime Arrival. The application for a Protection visa was lodged [in] August 2013. Accompanying the relevant Protection visa application forms was a Statutory Declaration by the applicant dated 26 July 2013. It provided as follows (headings omitted):
I am a citizen of Bangladesh. I do not have a right to citizenship or a right to reside in any other country.
I am Bangladeshi
I am a Sunni Muslim.
I was born on [date] in [a] Village, [Madaripur] District, Dhaka Division, Bangladesh,
I fear returning to Bangladesh.
I fled Bangladesh because my life was under serious threat.
Since about [1989], I became involved in politics with the Bangladesh Nationalist Party (‘BNP’). I volunteered as [Officer 1] within the BNP [in] Madaripur District. For example, I would schedule meetings and BNP party activities.
In about 2005 the BNP lost power. In about the end of 2007, I started to encounter problems due to my political opinion and activism as a BNP supporter and member. This was around the time that elections took place and the Awami League came to power.
Around the end of 2007, I was travelling to my local village markets [when] about 7 to 10 members of the Awami League approached me and started to threaten me about my involvement with the BNP. These individuals identified themselves as Awami League members to me. They demanded that I cease my activities with the BNP and I work with the Awami League. I did not respond to their comments as I was fearful of the consequences. I merely nodded to give them the false impression I would concede to their demands. The Awami League members then left.
After this incident, I decreased my activities with the BNP and tried my best to undertake any political activities more privately than I previously did. For example, previously, I would travel openly in the morning to undertake activities whereas after this incident, I would only travel late at night to meet BNP members. I continued my political activities in private until about the year 2009.
In about 2009, the BNP started to become more active in its campaigning for the 2013 elections. I therefore started to undertake activities publicly again in support of the BNP. For example, I would engage in protests against the Government with the BNP. I would attend BNP political meetings and actively be involved in planning BNP political activities.
In about December 2009 during my attendance at a BNP protest in the [streets], a large group of Awami League members surrounded the protesters and started to beat us all very badly. I was injured that day and suffered [injuries].[Details deleted]. I managed to escape and ran away to my home. My family then arranged to take me to the nearest health clinic to obtain treatment for my injuries.
Our family has some farm [land]. There is land owned by the Awami League surrounding our farm land. In about January or February of 2011, the Awami League started to cause trouble for us by blocking off our water supplies to prevent us from cultivating our land. I believe the Awami League did this as I have a profile with them and they were the only people who owned the neighbouring land surrounding our farmland.
While travelling to our family farm land, my [father] was also approached by Awami League members who told him "Tell your son to stop this BNP activity." This occurred between 2011 and 2012 and my father was approached on about 7 occasions.
In about December 2012, one day there was a BNP political meeting that I attended held in [a venue] at about 4:00PM. This was about a 10 minute walk from my home. Since that meeting, the Awami League had started to monitor the BNP's movements and activities more closely. At the end of the meeting, I saw the Awami League members standing outside the meeting as we left.
Three or four days later, a member of Jamat-e-Islami was sentenced to death by the Awami league who falsely accused him of engaging in war crimes in 1971. This sparked a number of incidences where the Awami League were falsely accusing a number of individuals from political parties opposed to their regime.
In about December 2012, a [vehicle] was set on fire while travelling between [one location] and [another location] and this occurred about [number] minutes walking distance from my home. [People] died in the incident including somone from my village. The Government accused the BNP and Jamat-e-Islami of carrying out this crime. About one day earlier, a protest had been held by BNP and Jamat-e-Islami against the Awami League Government.
In about early January, 2013, the Awami League lodged a case against me. It was [in] January that I learnt there was an investigation against my name. The Awami League came to rny home and they beat my [father]. I was falsely accused of being involved in the [incident] merely because of my involvement with the BNP.
After this time, my family was restricted to staying at home as they were all extremely fearful of what would happen to them. I also relocated at this time and moved around between different houses.
One night soon after, a group of Awami League members again came to our home and demanded a payment from my [father] and as my father was unable to make the payment, they again beat him. I was not at home. I continued to move around to different houses to try and stay safe.
About one week later, when I was sleeping at my [friend’s] [house], the Awami League found me there. There were about 6 or 7 Awami League members who came to my friend's home at about 10:00PM at night. The Awami League members broke down the house door and entered my friend's home. They took me out to the streets. They then beat me severely. They did not have any interest in my friend and [he] managed to quickly escape. I was stabbed [and] I still bear the scar from this until today. The Awami League members left me. They must have thought that I was dead due to the state I was in. A man [from] a neighbouring village came to [my friend]'s house and transported me to the [hospital] where I received treatment for my injuries. I was admitted to hospital and stayed there for about one week. I was then taken to Dhaka for further treatment.
I would like to clarify that when I refer to being kidnapped in my entry interview, I am referring to when the Awami League members pulled me out of [friend’s] houses and kept me with them the streets where they beat me severely.
Around the time I went to Dhaka to obtain further treatment, the police and Awami League started to visit my home and interrogate my family members about my whereabouts, Threats were made to my parents to the effect of” If we see your son anywhere, we will kill him."
Due to these events, I made arrangements to flee Bangladesh as I was fearful of losing my life if I stayed any longer.
Since arriving in Australia, BNP members have started accusing me of leaking information about the BNP party to individuals outside of the party and also of supporting the Government. They know that I have left the country. BNP members have approached my family members at home and made these accusations against me and made it clear that if I return, they will pursue me and harm me.
I fear that if I return to Bangladesh I will be seriously harmed and/or killed.
I have been seriously harmed and threatened. I have almost lost my life at the hands of the Awami League
I believe if I return to Bangladesh I would be at a real risk of facing serious harm and/or death at the hands of the current Awami League Government and/or Awami League members/supporters and other Government authorities including the police. I also fear harm from BNP members who now believe that I have betrayed them.
I will face serious harm and/or be killed for reason of:
·My political opinion as a BNP member, supporter and activist and;
·My imputed to the political opinion as a supporter of the Government and a betrayer of the BNP
The Awami League is the current ruling party in Bangladesh. The authorities will certainly not be willing to protect me as it is the authorities who seek to harm me and who I fear harm.
I cannot relocate to any other area in Bangladesh because I face a risk of serious harm and/or death at the hands of the current ruling party. These individuals form the current Government, they are powerful and can locate me throughout Bangladesh.
The following documents were provided with the application:
·Citizenship and Character Certificate dated [May] 2013 from the Office of the [Town 1] Municipal Corporation, signed by[an official]. It indicates that the applicant is known to the [official] personally and that he bears a good moral character and did not take part in any activity subversive to the State or discipline; and
·Birth Certificate, [Town 1] Municipality, of the applicant indicating birth on[date].
The applicant provided a further Statutory Declaration to the Tribunal dated 30 October 2014. It indicates that the applicant became a member of the BNP in 2000. He then applied for the position of [Official 2] of the [Town 1] branch in 2008 until 2010. He arranged for meetings in the area. He organised protests against the Awami League. He was involved in putting up posters for the party at night, to avoid detection. Between 2008 and 2010, about 50,000 posters were put up. The applicant helped organise 10 to 15 protests. The applicant delivered speeches during these rallies against the Awami League. It is indicated that the applicant has asked the President of the [Town 1] BNP branch to write a supporting letter which will be provided when received.
The applicant indicates that the election occurred [in] 2008. He indicated that he did not tell the Department this as he was confused and nervous and it happened a long time ago. The applicant indicated that the electorate is not number [deleted] [Town 1]. It is[deleted]. The applicant did not say it was ward number [deleted] [Town 1]. [Name deleted] replaced [name] as the candidate.
The [vehicle] was burned in December 2012. 10 to 12 members of the Awami League arrived at his home five or six days after the [vehicle] was burnt. They abused the applicant’s father verbally, slapped him and punched him in the face. A meeting occurred three days before the [vehicle] was burned. The applicant will provide witness statements regarding this incident. The applicant knew of the charges against him because the police told his parents. The charges involved alleged involvement with the burning of the[vehicle]. The citizen certificate was issued by the Council of [Town 1] and not the police.
The applicant’s adviser provided a submission to the Tribunal dated 3 November 2014, in advance of the hearing. The submission refers to the further Statutory Declaration provided by the applicant responding to adverse credibility findings made by the delegate of the Minister. Country Information is cited as supporting the applicant’s claim to fear harm from the Awami League. A 2013 report is referred to indicating that security forces committed human rights abuses and that authorities failed at times to maintain effective control over the security forces. Reference is made to a raid on 11 March of the BNP’s Central office and the arrest of 150 party officials during a BNP rally. Submissions are made with respect to the complementary protection criterion.
The following further documents were provided to the Tribunal 10 February 2016 by the applicant’s adviser:
·Certificate BNP, from[a named person], [Town 1] Sub-district branch, [Town 1], Madaripur, dated [October] 2014 indicating that the applicant was performing the role of [Official 2] municipality branch of the [Town 1] Sub-district in 2008; and
·Certificate BNP, from[the above named person], [Town 1] Sub-district branch, [Town 1], Madaripur, dated [October] 2014 indicating that the applicant ran a campaign for the nominated candidate of his own party during the 2008 election. It indicates that the applicant was involved with the party even when the BNP faced defeat in the election. In indicates that the Awami League threatened him due to this involvement. It indicates, that in 2012, Awami League activists assaulted him both physically and mentally and brought false charges against him for setting fire to[vehicles].
Independent information
The Tribunal has regard to the following information contained in DFAT Country Report – Bangladesh, 20 October 2014:
Since 1971, two political parties have dominated Bangladeshi politics: the Awami League (AL) and the Bangladesh Nationalist Party (BNP). The parties hold strongly opposing views on the role of religion in the state, with the BNP favouring an increased role for Islam. The relationship between the two major political parties is characterised by entrenched animosity and hostility between two families. The AL leader, Sheikh Hasina Wajed, is the daughter of the founding president, Sheikh Mujibur, who was assassinated in 1975. The BNP leader, Khaleda Zia, is the widow of another former military ruler turned president.
Recent Political Violence (2014 General Election/International War Crimes Tribunal)
There is a link between the general elections held on 5 January 2014 and verdicts of the International War Crimes Tribunal and official and societal violence. The elections were marred by low voter turnout (approximately 30 per cent) and violent protests which resulted in several hundred deaths. The BNP boycotted the elections and the Awami League won a significant majority in parliament. The EU Election Observation Mission said the “main political forces in Bangladesh had failed to create the necessary conditions for transparent, inclusive and credible elections”. The UN Secretary General called on the AL Government to resume negotiations with opposition parties to hold new elections.
The War Crimes Fact Finding Committee was established in 2008 and has identified 1600 people suspected of committing war crimes during the 1971 war. In 2009, an International War Crimes Tribunal was established by the AL government to investigate and prosecute these suspects. Between 2009 and 2014, the International War Crimes Tribunal indicted nine Jamaat-e-Islami (JI) and two BNP leaders for suspected war crimes. Four JI leaders and one BNP leader have been sentenced to death. Abdul Quader Mollah, a senior JI leader, was hanged for committing genocide during the 1971 war.
Political protests, including nation-wide hartals (general strikes), demonstrations, sit-ins and transport blockades peaked in Dhaka and the southeast (Cox’s Bazar and Chittagong region) in the lead up to the January 2014 election and in response to verdicts of the Tribunal between 2009 and 2014 (see ‘International War Crimes Tribunal’ below). Clashes between supporters of the two main political parties and between supporters and government security forces resulted in a number of deaths. Vastly different figures exist on the number of related deaths. DFAT assesses that between 200 and 300 deaths occurred.
Hundreds of Hindus faced intimidation and threats from Bangladesh Nationalist Party and Jaamat-e-Islami activists immediately prior to and following the election, predominantly in southern districts. Numerous local and international media outlets reported that BNP and JI activists had vandalised and burnt Hindu-owned homes and businesses in the southern districts. The perpetrators were predominantly armed with sticks or homemade weapons. Several Hindu temples were also vandalised. Sporadic instances of violence against Hindus also occurred. In Jessore, a Hindu woman was raped at gunpoint, allegedly because her family had voted in the election. A winning Hindu candidate, Ranjit Kaumar Roy, also from Jessore, was attacked and severely injured allegedly by JI activists.
In the absence of new elections, or a clear roadmap to new elections, it is possible political unrest may re-emerge. In similar periods of unrest throughout Bangladesh’s history, the army has staged military coups and acted as an arbiter to resolve electoral deadlocks. However, there is no expectation of an army intervention in the current context.[1]
[1] DFAT Country Report – Bangladesh, 20 October 2014, paras 2.2 – 2.7
[…]
Security Situation
Political instability in Bangladesh has resulted in an unpredictable security situation. The Government’s response to the violence in late 2013 and early 2014 was swift, with forces arresting and detaining a few hundred opposition BNP and JI members. Violence related to the 2014 elections and verdicts of the International War Crimes Tribunal had subsided at the time of writing but remains an ongoing risk.
A range of groups have been responsible for a recent increase in the use of small improvised explosive devices (known locally as “cocktails”) in public areas, including major roads and intersections. Criminal violence and armed robbery are common in Bangladesh and criminal activity has increased in recent years. The incidence of violence against women in Bangladesh is high.
The majority of politically motivated violence in Bangladesh tends to occur between political parties at hartals and protests. This violence is sometimes directed towards ethnic and religious minorities due to their perceived political allegiances, as occurred against the Hindu community following the 2014 elections.
Clashes between indigenous groups and Bengali settlers and state security forces in the CHT region over land disputes can occur. The Government has committed to implementing the terms of the 1997 CHT Peace Accord (see ‘Indigenous People—Chittagong Hill Tracts’, below) but the security situation in the CHT region remains unpredictable.
A number of terrorist incidents have occurred and security agencies in Bangladesh continue to arrest people connected to terrorist organisations. Several Bangladesh-based Islamist organisations have been listed as terrorist organisations by the United Nations Security Council, including Harkat-ul Mihad al-Islami Bangladesh (HUJI-B) and the Jamaat-ul-Mujahideen Bangladesh (JMB). The most severe terrorist attacks occurred in 2004 and 2005. The AL Government’s policy of containing Islamist groups has prevented further attacks in recent years.[2]
[…]
Opposition Parties—Bangladesh Nationalist Party and Jamaat-e-Islami
Since 1971, the Awami League (AL) or Bangladesh Nationalist Party (BNP) have, when in government, applied a hard-line approach against the other. The current AL Government has limited the political activities of BNP and Jaamat-e-Islami (JI) and high profile members have been arrested.
The overwhelming number of deaths or injuries relating to political opinion in Bangladesh’s recent history occurred around the 2014 general election and verdicts of the International War Crimes Tribunal. Hundreds of BNP members and supporters were arrested by state security forces in connection to these events (see ‘Recent Political Violence’ above). 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. JI members and supporters also protested against decisions of the International War Crimes Tribunal and many were subsequently arrested by government forces.
Estimated injuries and deaths linked to protests throughout 2013 and early 2014 vary greatly but are in the range of several hundred (see ‘Recent Political Violence’ above). Credible international and local sources reported that government security forces used live ammunition against protesters. State security forces also suffered injuries, including individual police officers being bashed at protests in Dhaka and in southern districts by BNP and JI supporters.
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 (see ‘Torture and Cruel, Inhumane or Degrading Treatment’, below).
[2] DFAT Country Report – Bangladesh, 20 October 2014, paras 2.22-2.26
Opposition Parties – Official Discrimination or Violence
There have been occasional allegations since 2008 that high profile BNP and JI members have been victims of enforced disappearances, kidnapping and fabricated criminal charges. Authorities have generally launched investigations into these matters, but few indictments have been made. The number of allegations has reduced in recent years.
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.[3]
[3] DFAT Country Report – Bangladesh, 20 October 2014, paras 3.50 – 3.55

More recent independent information compiled by the Country of Origin Information Service Section of the Department of Immigration paints a less benign picture in terms of the risk of harm faced by supporters of opposition political parties in Bangladesh. The relevant report is dated November 2015.[4] It refers to many instances of harm to members of the BNP and other opposition political parties in numerous instances of political violence. For example, the report provides the following overview:
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), which 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.’[5] According to ASK, in 2014, 145 incidents of political violence, in which 1567 people were injured and 31 died, involved BNP[6] (as participant: if perpetrator or victim is not indicated). In January-September 2015, 39 incidents of political violence, in which 360 people were injured and seven died, involved BNP.[7]
[4] Q&A Report, Country of Origin Information Service Section, Department of Immigration and Border Protection – Bangladesh: CI15101402103070 - Recent political violence directed towards Bangladesh Nationalists Party (BNP) supporters
[5] Ain O Salish Kendra (ASK) [Alam S] 2015, Annual Report 2014, 8 October [document created 14 September], pages 8 & 43 < [accessed 16 October 2015] <CISNET Library CISEC96CF13599>
[6] [Ain o Salish Kendra (ASK)] 2015, ‘January to December 2014 ASK Documentation. Political Violence’, n.d. [document created 25 January 2015] < [accessed 4 November 2015] <CISNET Library CISEC96CF13767>; ‘Source: Prothom Alo, Ittefaq, Janakantha, Inqilab, Jugantor, Samakal, Daily Star, New Age, Independent Sangbad, Noyadiganto, Amar Desh, Dhaka Tribune and Ain o Salish Kendra (ASK)’. The United States Department of State’s most recent report on human rights in Bangladesh (for 2014) cited ASK’s political violence statistics: ‘According to ASK, 124 persons were killed and 6,087 injured in political violence from January through August [2014]’: US Department of State. Bureau of Democracy, Human Rights and Labor 2015, Country Reports on Human Rights Practices for 2014 - Bangladesh, 25 June, page 3 (Section 1[a] ‘Respect for the Integrity of the Person, Including Freedom from: a. Arbitrary or Unlawful Deprivation of Life’ in Bangladesh’)< [accessed 1 July 2015] <CISNET Other Government OG2B06FAF201>
[7] [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] < [accessed 4 November 2015] <CISNET Library CISEC96CF13769>; ‘Source: Prothom Alo, Ittefaq, Samakal, Sangbad, Noyadiganto, Daily Star, New Age, Dhaka Tribune and Ain o Salish Kendra (ASK)’.
Hearing, credibility, findings and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA(1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Bangladesh and accordingly his claims will be assessed against that country.
The Tribunal has a number of credibility concerns with the applicant’s claims, including on core, or significant, issues.
Firstly, the applicant’s claim of a criminal case being made against him relating to deaths following the burning of a[vehicle], is not plausible in light of the applicant’s own evidence that he was in hospital for a week in his local area, while he was supposedly wanted by authorities.
The applicant, in the hearing, confirmed that, following being injured in the attack from Awami League members in early 2013, he was in a local hospital for a week, before leaving for Dhaka. The Tribunal noted to the applicant that it was not consistent with his claims of being wanted by authorities, and having to go into hiding to avoid detection by authorities, that he could have remained undetected in the local hospital for one week. In response, the applicant said that the police knew he was there, but were waiting for him to get better before arresting him. The Tribunal finds this explanation implausible. If the applicant was wanted by authorities for the deaths of individuals, the Tribunal does not think that he would have remained unguarded in hospital and simply allowed to leave of his own volition.
The applicant’s adviser submitted that it was not implausible that the applicant could have been detained in hospital. The Tribunal accepts this. However, the applicant, in response to the question by the Tribunal, did not say that he was detained in hospital, he simply said police knew that he was there. Further, it is not consistent with the applicant being detained in hospital that he would have been able to leave.
The applicant, in the hearing, said that he was able to provide further documents in relation to his hospitalization, and being wanted by authorities. The Tribunal indicated to the applicant that he had had plenty of time to provide relevant documents. The applicant’s adviser asked if six days could be allowed to obtain the documents. The Tribunal agreed to this. It indicated that the documents would be considered in the context of the applicant’s overall evidence and also noting the easy ability to obtain fraudulent documents in Bangladesh.[8]
[8] Numerous documents can be found attesting to the high level of fraudulent documents and corruption in Bangladesh. (DFAT, 1988, Application for Refugee Status, 26 July ; DIMIA Country Information Service, 1996, CIR No.497/96, 7 June (sourced from Former Second Secretary, Australian High Commission, Dhaka – 2 April 1993) ; DIMIA Country Information Service, 1996, CIR No. 22/96, 5 January (sourced from DFAT, 24 December 1995) ; DIMIA Country Information Service, 1996, CIR No. 1011/96, 18 December (sourced from DFAT, 25 November 1996); DIMIA Country Information Service, 1998, Bangladesh: Profile of Asylum Claims and Country Conditions, 27 August (sourced from the US Bureau of Democracy, Human Rights and Labor, February 1998); DIMIA Country Information Service, 1998, CIR No.373/98, 13 October (sourced from DFAT 6 October 1998); RRT Country Research, 2001, Research Response BGD14766, 21 August )
Following the hearing, the applicant provided a document in English headed ‘Transfer Certificate’ dated [January] 2013 issued by[a health facility], [Town 1], Madaripur. It refers to the applicant being admitted to hospital from [January] 2013 to [January] 2013 indicating that he was suffering from [an] injury and physical assault.
This certificate fails to corroborate the applicant’s claim that he was stabbed, referring only to [an] injury and physical assault. The Tribunal considers that, had the applicant been stabbed, the document would refer to this. As indicated, fraudulent documents are readily obtained in Bangladesh which limits the weight of the Tribunal gives to this document, particularly in light of the many other credibility concerns identified in this decision. As indicated, if the applicant were hospitalised in his village, as the document indicates, it is implausible that authorities would not have detained the applicant at this point in time had he been wanted by authorities as the applicant claims.
Further documents provided by the applicant, following the hearing, seeking to corroborate claims of being wanted by authorities are discussed later in this decision.
Secondly, the applicant failed to provide consistent evidence as to the injuries he claims to have sustained following the attack by Awami League members in early 2013. The Tribunal asked the applicant in the hearing, on two separate occasions, to describe the injuries he received in the attack. The applicant referred to being beaten to the point of unconsciousness. The Tribunal asked the applicant if there were any other injuries, and he said there were not. The Tribunal pointed out to the applicant that his written claims indicated that he had been stabbed. The applicant indicated that this was correct. The Tribunal noted that it took adverse inference from the fact that the applicant failed to mention this in response to the two questions on the issue by the Tribunal. The applicant said that he did not understand what was meant by ‘injury’. The Tribunal does not accept this explanation based on the thorough questioning of the applicant, as to injuries, including a clarification as to whether what he had told the Tribunal was the full extent of his injuries.
Thirdly, the applicant has provided inconsistent accounts as to the circumstances of the stabbing, and made earlier claims of a kidnapping, later retracted.
Information contained in the record of entry interview indicates that the applicant stated in that interview that he was kidnapped, and detained, and hit, and stabbed with a knife. He said that this happened on the way back from the meeting on 2 January 2012. This information was put to the applicant in the hearing in accordance with the procedural requirements of s.424AA of the Act.
It was noted that the information was relevant because it was inconsistent with the claim in the statutory declaration that the applicant was not kidnapped. The declaration indicates that the reference made in the entry interview to being kidnapped is, in fact, referring to being attacked after being taken from his friend’s house. The Tribunal indicated that it was difficult to accept this explanation given that the applicant specifically said in the entry interview that he was kidnapped on his way home from the meeting [in] January 2013. It is clear therefore that applicant was not referring to the attack by the Awami League when he was staying in friend’s house. The Tribunal indicated that the consequence of relying on this information would be to question the applicant’s credibility about his account of being attacked by the Awami League, him being wanted for an attack on a[vehicle], and to question his credibility generally.
In response, the applicant referred to earlier evidence given relating to the meeting of the BNP. Whilst it was a little unclear to the Tribunal, the applicant seemed to be indicating that the meeting was the precursor for the attack by the Awami League. In his responses, the applicant did not provide an explanation which satisfactorily indicated why he had previously claimed that he had been kidnapped. The fact of a meeting occurring as a precursor to the attack by the Awami League in early 2013 does not overcome the clear evidence by the applicant, in the entry interview, that the kidnapping occurred after he was returning from the meeting. This is not consistent with the applicant’s evidence elsewhere.
The Tribunal draws an adverse inference as to the truth of the applicant’s claims based on inconsistencies on this key aspect of his claims.
Fourthly, inconsistent evidence has been provided concerning the timing of the BNP meeting in relation to the burning of the[vehicle]. As indicated in the decision of the delegate (a copy of which has been provided by the applicant to the Tribunal), the applicant initially gave evidence in the interview with the delegate that the BNP meeting had occurred three days after the [vehicle] burning incident. The applicant later contradicted himself by saying that the meeting occurred prior to the burning of the[vehicle]. The decision also records that the entry interview records the applicant saying that the [vehicle] incident occurred during a BNP protest that he had been involved in. The Tribunal has checked the entry interview record and the recording of the interview and is of the view that the references in the delegate’s decision are accurate.
When these inconsistencies were put to the applicant in the hearing, he maintained that he did not provide contrary evidence. The Tribunal disagrees and does not consider that the evidence has been consistent. It accepts that there may be understandable confusion about dates and timings particularly given the stress and anxiety caused by interview processes. However, it finds it difficult to accept that this could explain the applicant giving three different versions as to the timing of the [vehicle] incident and the meeting. The inconsistencies on this issue are not determinative in adverse credibility findings against the applicant, but they do buttress other concerns.
Fifthly, the applicant has not been consistent in terms of the level and profile of his political involvement. In the applicant’s initial written claims, he indicates that, following the incident with the Awami League in 2007, he took a lower political profile only working in ‘private’ and at night. In about early 2009 he became more active in his involvement. In contrast, in later written claims, and as supported by references provided by BNP officials, it is stated that the applicant became [Official 2] of the [Town 1] branch of the BNP and ran the campaign for the BNP candidate for the 2008 election. The applicant indicated in that subsequent written claim that he delivered speeches during rallies against the Awami League at this time. Although the subsequent written claims indicate that the applicant put up posters at night during this period to avoid detection, it seems inconsistent with his earlier written claims that he took a low profile from 2007 to 2009 that he would be running the campaign for the local BNP candidate.
Initially, in the hearing, the Tribunal explored with the applicant his role as the [Official 2] of the Branch. It asked whether he was in charge of the branch. The applicant said that there was one person above him, the President. The Tribunal formed the impression that the applicant was second in charge. Later in the hearing, when the Tribunal put to the applicant the seeming inconsistency between his initial and subsequent written claims as to the level of his involvement between 2007 and 2009, the applicant indicated that, as[Official 2], he was simply one of many involved. The Tribunal noted to the applicant that he claims to have given speeches during this period (which would imply a high level involvement). The applicant then indicated that he had given speeches during his college years (seemingly recanting evidence that he gave speeches during the election campaign).
The Tribunal finds the applicant’s evidence as to the level and profile of his involvement in the BNP inconsistent, and with a degree of obfuscation.
Sixthly, as indicated in the decision of the delegate, the applicant, in the interview, did not correctly name, when asked, the BNP candidate for the 2008 election for the electorate of the applicant. In a subsequent written response, it was claimed that the person that the applicant named was the original candidate but that that person was replaced.
The applicant’s adviser submitted that the events took place a long time ago and that it would be easy for a person to forget the candidate. The adviser asked the Tribunal if it would remember the name of candidates in a particular election. The Tribunal does not accept this explanation. The applicant is claimed to have been intimately involved with the relevant BNP branch, being, at the very least, a campaign worker and, on other claims, the second in charge of the campaign. The Tribunal does not think it credible that, in either case, the applicant would fail to remember the name of the candidate who ultimately ran for office, if the applicant had been involved in the campaign in any meaningful way.
Seventhly, the applicant was not able to provide the Tribunal with any meaningful detail of platforms, political debates or policy issues of the BNP in the context of local issues in the 2008 election. When asked this question on at least two occasions in the hearing, the applicant made broad statements that the party supported the welfare and opportunities for people, was good for everyone. In relation to the 2008 election, he said that the main issue was who would win the election. He said that the candidate would be selected, there was debate and speeches and that the BNP stood for prosperity and goodness. The Tribunal indicated to the applicant that he was not providing it with a level of detail it would expect from him. The applicant responded by saying that the BNP would provide electricity, mosques, schools and machines for businesses.
The applicant’s adviser submitted that political debate in a third world country cannot be compared with what might be expected in the Australian context, in terms of detailed debates about specific policy issues. The Tribunal accepts that this may be true. However, the Tribunal considers that there must have been particular local political issues that would have been the subject of contention and debate, and polices distinct from the Awami League, from the time of the applicant becoming, as he claims, [Official 1] of the party in 1989 up until his departure for Australia including in his time campaigning for a local candidate in the 2008 election. The applicant claims to have given speeches on behalf of the party during his involvement. In the Tribunal’s view, the fact that he talked mainly in platitudes, or at a very high level, about policy issues is not consistent with the applicant’s claims to have been a long-standing member of the BNP, including holding positions within the party.
Eighthly, the statement from [an official] of [Town 1] of May 2013 attesting to the fact that the applicant is of good moral character, and has not engaged in subversive activities, is not consistent with the applicant’s claims to have either been an active adherent of the BNP or there being an outstanding criminal case against him involving deaths following the petrol bombing of[vehicle].
The applicant, in the hearing, indicated that the [official] was aligned with the Awami League. In that context, it was not plausible to the Tribunal that he would provide a statement of support for the applicant given the applicant’s claimed political involvement and the adverse treatment of opposition party members by the government, as indicated in county information. It was also not plausible that a statement would be provided if there was a serious criminal case outstanding against the applicant.

The applicant indicated in the hearing that this document was obtained by his wife, after much pleading. It was provided following the entry interview, to provide evidence of the applicant’s Bangladeshi citizenship. The applicant’s adviser had submitted to the delegate that the certificate does not discount that the applicant might not be wanted. It was submitted that the provision of the document might be considered in the same way as a person who had a parking offence but would still be granted a passport.
The Tribunal does not accept this submission. The applicant is not accused of a parking violation, he is being accused of murder.
The Tribunal has noted the easy of obtaing fraudulent documents in Bangladesh. It is plausible that the applicant may have fraudulently obtained this document as a means of establishing his identity and character, without thinking that it would substantially undermine his claims. However, it is noteworthy that the applicant has not claimed that the document was fraudulent. He indicates that his wife obtained it genuinely after much pleading.
The Tribunal is of the view that this document is undermining of the applicant’s claims. It is not a determining factor, in itself, in terms of adverse findings against, the applicant, but it does buttress other concerns.
Ninthly, claims by the applicant in the interview with the delegate of the Minister, that he faces harm from the BNP itself, due to them now suspecting that he has leaked information to the Awami League, is not credible in light of subsequent documentary information provided by the applicant.
In the interview, the applicant indicated that, since he had left for Australia, the President of the BNP [Town 1] branch had visited his home on two occasions threatening the applicant to his family due to their belief that he had leaked documents. However, following that interview, the applicant has provided to the Tribunal statements from the President of the [Town 1] branch (post-dating the interview) that support the applicant’s claims for protection. They claim that the applicant was appointed as [Official 2] in 2008 and ran the campaign for the nominated candidate in the 2008 election. It refers to the applicant facing physical harm and threats.
The Tribunal put to the applicant, that it was not consistent with him fearing harm from the BNP, that the local branch would write supporting statements for him. The applicant indicated that, at the point the President visited his wife, they did not know that he had left for Australia. They thought he had gone underground and suspected him of providing information to the Awami League. The applicant indicated that his wife subsequently persuaded the President that the applicant had left for overseas and therefore he wrote the letters of support. The Tribunal put to the applicant that, therefore, on that basis, he presumably no longer feared harm from the BNP. The applicant said that he did fear harm from BNP based on the suspicion of him leaking documents.
The Tribunal cannot correlate the applicant’s evidence on this point. While it may be plausible that the BNP, for a period, were suspicious of the applicant because he disappeared, it does not make sense that, if the applicant’s wife explained the situation to the President and he wrote supporting letters for the applicant, there would be an ongoing intention to harm the applicant.
The applicant’s evidence on this issue was confused and lacked reason in terms of the claims of harm from the BNP.
These nine areas of concern raise issues ranging from moderate significance to issues central to the applicant’s claims. The applicant’s adviser submitted that the threshold of proof for the Tribunal is low. He submitted that the applicant has been subject to a number of interviews which lend themselves to inconsistencies. He submitted that anxiety on the part of the applicant could be the source of inconsistencies. He submitted that there is a susceptibility to interpretation error and it is possible that some of the interpreters have not been appropriately accredited, although he had not investigated that point. He submitted that interviews and hearings are time-limited thus preventing the applicant fully making his claims.
The issues identified are numerous and range in scope across various aspects of the applicant’s claims. The cumulative impact of the deficiencies is very significant and the Tribunal is not satisfied that they are explicable for the reasons submitted by the applicant’s adviser. In terms of the standard of proof, the Tribunal must be satisfied as to the applicant’s claims. It is for the applicant to provide evidence supporting his claims. The Tribunal acknowledges the potential for some inconsistencies due to multiple interview and hearing processes. They do not explain, however, the cumulative impact of difficulties identified, in the Tribunal’s view. The Tribunal accepts that anxiety is a possible source of confused or inconsistent evidence but, again, the Tribunal does not consider that this can explain the cumulative impact of the difficulties identified with the evidence. There is no evidence of any interpretation error put forward by the applicant or his adviser, and the Tribunal is not satisfied there has been such error. The Tribunal is not satisfied that the deficiencies are explained by any time limitations on the entry interview or the interview with delegate of the Minister. The Tribunal hearing was not time-limited.
Following the hearing, the applicant provided documents which seek to attest to the criminal charges against him. Those documents are in English, with no original Bangladeshi documents provided. They all contain various authentication stamps. The documents include:
·     First Information Report relating to an incident that occurred [in] December 2012. The report is made by a Member of Bangladesh Awami League District Committee indicating that the applicant and a number of others were involved in throwing a petrol bomb at a [vehicle] resulting in deaths. The applicant is listed as one of five accused;
·     Charge Sheet against the applicant and four other accused as per the First Information Report;
·     Warrant of Arrest for applicant dated [April] 2013; and
·     Order of Attachment to Compel the Appearance of a Person Accused, dated [May] 2013, indicating that the applicant has absconded and requiring him to appear to face charges and that there is an order for attachment of his property;
As indicated, the weight of the deficiencies in the evidence is very significant. They are not overcome by the late provision of this documentary evidence. The Tribunal is puzzled as to why such documents would not have been provided earlier. As indicated to the applicant, fraudulent documents are readily obtained in Bangladesh. No copies of original documents have been provided. The Tribunal gives these documents little weight.
The cumulative impact of the deficiencies in the evidence identified are such that the Tribunal is not in a position to be satisfied as to any substantive aspect of the applicant’s claims, despite the documents provided.
The Tribunal is not satisfied that the applicant was falsely accused in 2013 of an incident involving the burning of a[vehicle], and the deaths of individuals, and that he went into hiding as a result of this. The Tribunal is not satisfied that the applicant was attacked by the Awami League in early 2013 and left for dead. The Tribunal is not satisfied that the applicant is wanted by authorities in relation to a [vehicle] incident and deaths or that he is being looked for. The Tribunal is not satisfied with the applicant’s claims of approaches, threats, harm by the Awami League prior to 2013. The Tribunal is not satisfied that the applicant has had any significant or long-standing involvement in the BNP, as he claims. The Tribunal is not satisfied that the applicant was either [Official 1] for the BNP from 1989, or the [Official 2] for his local branch during the course of the 2008 election campaign. The Tribunal is not satisfied that Awami League members have caused trouble for the applicant’s family’s land due to the applicant’s profile or otherwise. The Tribunal is not satisfied that the applicant’s father has been threatened by the Awami League. The Tribunal is not satisfied that the BNP wish to harm the applicant due to suspicion of him leaking documents to the Awami League, or for any other reason.
The Tribunal gives the certificates from the BNP attesting to the applicant’s political activities little weight, noting the ready ability to obtain fraudulent documents in Bangladesh. The documents do not overcome the numerous credibility concerns with the applicant’s evidence. As indicated, they are also not consistent with the applicant claims to fear harm from the BNP itself.
In terms of the risk to BNP members in Bangladesh, the Tribunal notes DFAT Country Report – Bangladesh, 20 October 2014 as outlined earlier. It indicates 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. As noted, the Tribunal has additional independent information that would suggest that that assessment by DFAT may understate the current risk in light of developments in 2014 and 2015. There have been many reports in 2015 of BNP members and supporters being arbitrarily detained, physically harmed and, in some instances, killed.
However, given the numerous and significant deficiencies in the applicant’s evidence, the Tribunal is not satisfied of past BNP involvement by the applicant or adverse interest by authorities in the applicant as a result of that involvement, that would create a real chance of the applicant facing serious or significant harm in Bangladesh due to that involvement, including adverse interest in him by authorities. The Tribunal is not satisfied that the applicant would be involved in the BNP on his return to Bangladesh such as to lead to a real chance of the applicant facing serious or significant harm as a result of such involvement.
The Tribunal is not satisfied that there is any outstanding case against the applicant, and that the applicant is wanted by authorities, such as to lead to a real chance of the applicant facing serious or significant harm on return to Bangladesh now or in the reasonably foreseeable future.
The Tribunal is not satisfied that there has been land encroachment or other land issues from the Awami League with respect to family land, or harm to the applicant’s father, that leads to a real chance of the applicant facing serious or significant harm. The Tribunal is not satisfied of difficulties or harm suffered by the applicant’s father from the Awami League leading to a real chance of the applicant facing serious or significant harm.
The Tribunal is not satisfied that the BNP suspect the applicant of leaking documents or have threatened to harm the applicant such as to create a real chance of the applicant facing serious or significant harm from the BNP.
In summary, in terms of the Refugees Convention criterion, the Tribunal is not satisfied that there is a well founded fear of the applicant being persecuted for a Convention reason for any of the reasons claimed, or for any other reason.
In summary, in terms of the complementary protection criterion, 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 the will suffer significant harm for any of the reasons claimed, or for any other reason.
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a Protection visa.
David McCulloch
Member

[2016] AATA 3540

3 March 2016

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction