1418054 (Refugee)

[2015] AATA 4026

1418054 (Refugee) [2015] AATA 4026 (24 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418054

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Bruce Henry

DATE:24 December 2015

PLACE OF DECISION:  Brisbane

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

Statement made on 24 December 2015 at 1:56pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – imputed political opinion – association with Bangladesh National Party representative – threats and fear of physical violence – fear of killing – inconsistent evidence – internal relocation – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Bangladesh, applied for the visa on 13 August 2013 and the delegate refused to grant the visa on 28 October 2014.

3. The applicant appeared before the Tribunal on 16 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

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

8. 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’).

9. 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.

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

11. The application and the applicant's written claims are on the departmental file which is before the Tribunal. The applicant attended an interview at the Department on 5 March 2013, and a recording of the interview is located on the departmental file. No further claims or submissions have been received by the Tribunal during the course of the review.

12. In his application the applicant claimed to be a Bengali and a Sunni Muslim from Chandpur district in Bangladesh. He claims to be a Bangladeshi citizen, and the Department has accepted that claim based on the available identity documentation.

13. The applicant’s claims were set out in a statutory declaration that accompanied the application, in which he said:

    1.I am [age] years of age. I was born in the village of [Village 1] in the District of Chanpur in Bangladesh.

    2.My ethnicity is Bengali. My religion is Sunni Muslim, I am a citizen of Bangladesh and do not hold any citizenship or right to reside in any other country. My parents were both born in Bangladesh

    3.I have [specified siblings]. All my siblings are alive and living in Bangladesh.

    4.I have never married and no children or dependents.

    5.I attended [school] in my village of [Village 1] for around [number] years. I have not undertaken any further formal education since leaving [school].

    6.I was unemployed after leaving school and my parents supported me. From around [year], I started working as a farm labourer in my district. I picked up casual work as required by the various farmers. From around January 2012, I commenced working as [an Occupation 1] in a [business] called [Business 1] in Dhaka City. I worked in this [business] until just before I left Bangladesh to embark on this journey to Australia.

    7.Prior to embarking on my journey to Australia to seek asylum, I had not left Bangladesh to travel to any other countries.

    The reasons I left Bangladesh

    8.My troubles in Bangladesh started with my employment in [Business 1].

    9.I commenced employment in [Business 1] simply by accident, when I started a conversation with the proprietor whilst buying [an item]. [Mr A] owned the [business]. [Mr A] asked about my skills and whether I could start work as a [Occupation 1]. I readily accepted as I needed work at the time.

    10.Soon after starting work in [Business 1], I learnt that [Mr A] was a member of the BNP political party and was prominent as a representative of the BNP and the [business] area including representing the local [businesses].

    11.Toward the end of 2012, [Mr A] was attacked on the way home from work in a lane way by the thugs. [Mr A] told me later that these thugs were hired by opponents of the BNP party.

    12.After [Mr A] was attacked he telephoned me on his mobile phone and I came to assist [him]. I took [Mr A] to the local medical centre. [Mr A] had been slashed with a sharp object on his shoulder and was in need of urgent medical attention. Once [Mr A] was safe at the medical centre, I asked the doctor to call [Mr A’s] wife and she arrived in a distressed state. I then left knowing that [Mr A] was safe and receiving treatment.

    13.[Mr A] did not return to work after he was attacked. [Business 1] was to be closed for around 10 to 15 days whilst [Mr A] recovered. However, rather than re-open the [business] again to trade. [Mr A] called me and told me that he would close the [business] all together. [Mr A] paid my outstanding wages and advised me to leave the area.

    14.[Mr A] and his wife then moved from their home and I never saw them again. [Mr A] switched off his mobile number I was never able to contact him again.

    15.Early in 2013, after [Business 1] was closed and [Mr A] had left the area, I received a telephone call from a person who just identified themself as someone from the [business area], I was asked to meet this person outside of the [business].

    16.As soon as I stepped out of my home to meet the unidentified caller at the [business], I saw around five men standing near you home [sic]. The person who phoned me was standing outside my home rather than at the [business] where I was to meet.

    17.These unidentified men asked me for the whereabouts of [Mr A]. I told them that I did not know where [Mr A] was and had lost contact with him after he closed the [business]. The unidentified men told me that if I did not tell them where [Mr A] was I would be killed. I told these men that I needed to go to the toilet. I went back into my house and escaped through back entrance to my house.

    18.I managed to hire a rickshaw and travelled to a friend's place where I was able to hide. I did not see the unidentified men again.

    19.I received around four or five further telephone calls from these men with threats to my life. Each time, the men asked where [Mr A] was and told me that if I did not provide his whereabouts, I would be killed. I switched off my mobile to avoid further threats. These men told me that [Mr A] had inflicted a lot of harm on them as a BNP member and they wanted revenge.

    20.My friend, [Friend B] told me that the men who were threatening me were extremely dangerous and that I should flee Bangladesh as soon as possible. [Friend B] told me that even going to the police would not assist me as these people were connected to the Awami League party and that they had connections with the police. I managed to contact a people smuggler and fled Bangladesh for my life.

    What I fear may happen to me if I return:

    21.I will be seriously harmed and possibly be killed political opponents of the BNP, who were determined to attack [Mr A] and are threatening me as they consider that I know the whereabouts of [Mr A].

    Who might harm me if I return:

    22.I fear that I will be killed or seriously beaten or harmed by the thugs who I am told are connected to the Awami League party and who consider that I am connected to [Mr A] who was a representative of the BNP party.

    Why I think that might happen to me if I return:

    23.The thugs that attacked [Mr A] believe that I know where [Mr A] is hiding and they will harm me or kill me as they believe I know [Mr A’s] whereabouts.

    24.I am being imputed as BNP supporter because my previous employer was a BNP representative and now [Mr A’s] political enemies are seeking to harm me.

    Do I think the authorities can protect me if I return?

    25.The authorities in Bangladesh are notoriously corrupt and not able to assist someone like me. I have been told that the authorities will not assist me because I have no financial backing and the thugs, who I beloved [sic] to be members of the Awami League party have connection with the police.

    Can I go anywhere else in my country, apart from where I used to reside?

    26.There is nowhere in Bangladesh that I can go to find protection. The opponents of [Mr A] are connected to the Awami League party. They consider that I am a supporter of the BNP as I was connected to [Mr A] through my work and they have the means to find me anywhere in Bangladesh.

14. The applicant provided to the Tribunal a copy of the decision record of the departmental delegate, in which his claims were summarised as follows:

    ·He worked as a farm labourer in his home village of [Village 1] between [year] and January 2012.

    ·In January 2012 he relocated from his home village to the Bangladeshi capital of Dhaka.

    ·He commenced work as [Occupation 1] in a [business] at [Business 1], Dhaka after an impromptu conversation with the [owner] whilst making a [transaction].

    ·After commencing work as a [Occupation 1] he learned that his employer, identified by name [Mr A], was a prominent member of the Bangladesh Nationalist Party (BNP) and represented local [businesses].

    ·Towards the end of 2012 his employer was attacked on the way home from work by a group of thugs who were hired by opponents of the BNP.

    ·He received a telephone call from his employer who requested his assistance
    in taking him to a nearby medical centre for treatment of sustained injuries.

    ·His place of employment was immediately closed for trade and he was notified 10 to 15 days later that the business would close all together.

    ·His employer moved from the area shortly after the attack and he never saw him again.

    ·After the attack on his employer, he received a telephone call from an unidentified caller requesting that he attend the [business] for a meeting.

    ·On leaving his home to attend the arranged meeting he was accosted by a group of approximately five men who demanded to know the whereabouts of [Mr A], his former employer.

    ·He advised the men that he had lost contact with his employer after the [business] had been closed.

    ·He was advised by the men that if he did not inform where [Mr A] was located that he would be killed.

    ·He informed the group that he needed to go to the toilet and then retreated into his house and escaped via a backyard exit before hiring a rickshaw and travelling to a friend's residence where he could safely hide.

    ·He received four for five further telephone calls from the men regarding the whereabouts of [Mr A], each made with the threat that his life would be taken if he did not provide information. The men informed him that [Mr A] had inflicted a lot of harm on them as a BNP member and they sought revenge.

    ·He turned off his mobile telephone to avoid any further threats.

    ·He was encouraged by a friend to depart Bangladesh immediately as the men making the threats were extremely dangerous and that police would be unable to assist him as the men were connected to the ruling Awami League party.

    ·He fears he will be seriously harmed or possibly killed if he returns to Bangladesh due to his association to his former employer who was a prominent representative of the BNP.

    ·He believes the men who accosted him will continue to believe that he knows the whereabouts of [Mr A].

    ·He believes he has been imputed as BNP supporter as his previous employer was a BNP representative and that the political enemies of his former employer are seeking to harm him.

    The applicant attended a Protection visa interview at the department's [office] on 7 October. The applicant provided further information in relation to his claims for protection. His claims are summarised as follows:

    ·      He moved to Dhaka in [year] in pursuit of employment prospects.

    ·He was introduced to [Mr A] through a friend for the express purpose of obtaining employment.

    ·Three days after his former employer was attacked he was contacted by an unknown caller who requested he attend a meeting at the [business] where his former place of employment was located.

    ·Upon leaving his home to attend the arranged meeting he was accosted by five men who were demanding to know [Mr A’s] whereabouts. The men threatened to kill him if he was unable to provide the requested details.

    ·Shortly after being accosted by the group of men he requested to use the toilet and was told that he would need to go at a later time. He then pushed past one of the group members and was told that he would need to be quick.

    ·He escaped from the toilet via a discreet exit point and went to a friend's house where he remained for approximately two hours before returning to his home village.

    ·Approximately one hour after escaping from the group he received a telephone call demanding to know the whereabouts of [Mr A]. He was told that if he provided the whereabouts of [Mr A] he would not be harmed.

    ·After receiving one telephone call from the group of men he sought to change his mobile telephone number by purchasing a new SIM card.

    ·Upon departing Dhaka he returned to his home village where he continued to receive further telephone calls (on his newly acquired number) demanding to know the whereabouts of his former employer.

    ·Fears harm from the AL due to being imputed with a pro-BNP political opinion after he provided assistance to his employer who was attacked by AL members.

15. In discussing these claims the delegate said:

    Inconsistencies

    In his written declaration, the applicant claims to have received four or five telephone calls from the group of men before he made the decision to switch off his mobile telephone. The applicant claims that in each of the calls received, the whereabouts of [Mr A] was requested and a consistent threat against his life was made. The applicant also claims the men informed that [Mr A] 'had inflicted a lot of harm on them as a BNP member and they wanted revenge'. However, in his verbal account at PV interview, the applicant claims that the series of calls were received after his return to [Village 1] and also after he had obtained a new telephone number. It was put to the applicant during interview that that the information contained within his declaration did not contain any reference to the purchase of a new SIM card, or the obtaining of a new mobile telephone number. The applicant was also asked to comment on how the group of men would have obtained his new telephone number in order to direct further threats against him. In response the applicant stated that the omission of detail surrounding the SIM card was due to time constraints during an earlier interview with his Migration Agent. In response to questions regarding how the group may have obtained his new telephone number, the applicant stated he had 'no idea' of how this came about. The applicant further claimed that the group were also privy to his address details in [Village 1]. When it was further put to the applicant as to how the group may be privy to this detail, he again stated 'I have no idea'. The applicant did not inform as to whether family members in his home village had been visited by the group of men.

    Whilst I have considered the applicant's post-interview submission, I find if he had held genuine fears for his safety and changed his mobile telephone number as claimed, he would have most certainly recalled this aspect during the construction of his written declaration. As such I have not found the applicant's claims in respect to his employment in Dhaka to be a credible account of actual events. Furthermore, as I have not accepted the applicant was personally targeted, accosted and escaped a group of men who had threatened his life, I do not also accept his statement of receiving a series of life threatening telephone calls as having occurred.

    Claims disclosed during IMA Entry Interview

    At PV interview it was put to the applicant that after his arrival to Australia he undertook a formal interview with a departmental officer where details surrounding the motivations for his travel to Australia were sought. The applicant, with respect to his reasons for travel to Australia, informed during an IMA Entry interview [in] June 2013 that he sought to depart Bangladesh due to problems at his place of employment involving Police and the Jamaat. The applicant was not questioned as to who the Jamaat were during his PV interview. The applicant further stated at Entry interview that the [business] where he was employed was shut down and as he was unable to find alternative employment he made arrangements for travel to Australia. The applicant was then asked during his Entry interview if there were any reasons as to why he could not return to his home country, to which he responded 'there will be problems relating to work'. At no point during his Entry interview did the applicant make any reference to his stated employer [Mr A], the BNP, fear of harm, or threats against his life due to an imputed political opinion. I find that if the applicant held a genuine fear of harm, on account of an imputed political opinion, he would have been more forthcoming in his responses during his IMA Entry interview [in] June 2013.

    In the applicant's post-interview statement, he claims that his comments during Entry interview were not read back to him, he was instructed to provide only brief answers and was unable to provide information in its entirety. The applicant also claims in his post-interview submission that conflicts between police and the Jamaat were occurring at that time. While I acknowledge the applicant may have been confused as to what information was relevant during his Entry interview, I consider that his main claims have taken a significant change, from a stated lack of employment prospects to that of an imputed political opinion. While I have not placed weight solely on the claims raised during his Entry interview, I consider it does add to my cumulative concerns detailed above and findings that the applicant has over the course of the PV process embellished and at times fabricated events in order to enhance his claims for Protection.

    Assessment

    Throughout the PV interview, the applicant was unable to provide a level of detail that could reasonably be expected of a person recalling personal experience, and this has led me to question his overall credibility. While the applicant has provided enough plausible information to conclude that at some point he moved to Dhaka and found employment, I have concerns surrounding numerous inconsistencies as outlined below:

    ·dates of departure from his home village and travel to Dhaka;

    ·method of securing employment at [Business 1];

    ·the existence of [Mr A] himself as described by the applicant;

    ·being accosted by a group of men who threatened his life prior to his implausible escape;

    ·motivation for travel to Australia.

    In considering the above concerns on a cumulative basis I find that the applicant has embellished his story in order to enhance his PV claims.

    Given the significance of the applicant's claimed role in assisting his employer
    following the attack and his then stated altercation with the same perpetrators, I consider the applicant would have been able to describe the events in a more spontaneous and detailed manner as was the case at PV interview. I therefore have particular concerns about his claimed attack and escape from the stated agents of harm. I questioned the applicant in detail with regard to his encounter with the group men [sic] who made threats against his life and found he was unable to offer periphery detail in respect to the stated event. I further consider the applicant's claim that he was permitted to use toilet facilities, while moments prior having his life seriously threatened to be implausible in the context of his earlier claims that the group of men were serious enough to kill him, and suitably sophisticated as to ascertain his newly acquired telephone number and address in his home village. Furthermore, I consider the applicant's claim of being permitted to use toilet facilities, as being far-fetched when taken in context with his overall claims.

    Summary of findings

    When considering the inconsistencies in the applicant's material claims combined with his inability to respond in a spontaneous manner with a level of plausible detail at interview, I find the applicant to be lacking in credibility and that his claims for protection do not reflect genuine, lived experience.

    Following from the discussion and findings above I accept that:

    ·the applicant moved to Dhaka for employment opportunities;

    ·the applicant was employed in a [business] in Dhaka.

    I do not accept his claims that he has been personally targeted on account of an imputed political opinion to the BNP, or for any other reason.

    The applicant has not explicitly or implicitly raised any other claims for protection.

    Therefore, as I have rejected the applicant's material claims I will not consider them further in this assessment.

1. The applicant’s evidence at the hearing was broadly consistent with the claims previously made to the Department, both in writing and at interview, other than in relation to the events that he claimed occurred after his employer, [Mr A], closed the [business]. On the matters identified by the delegate as ‘inconsistencies’ in his story regarding the calls made to him after the incident he told the Tribunal that the calls were made after he had fled back to his family’s village after being assaulted by the political opponents of [Mr A].

2. The applicant told the Tribunal that he had fled to his village after his friend in Dhaka told him it was not safe for him to stay there. He said that his father told him to come to the village because he would be safe there, but the people who had beaten him in Dhaka continued to call him constantly. He said that every time he switched his phone on they would call and threaten him, so he changed his number. He said that for one day he did not receive any further calls, but they started again the next day. He was unable to offer any explanation as to how these people could have obtained his new number within a day.

3. The applicant then claimed that these people, whom he then learned were from the Awami League, found out his address and came to his home in his village. He said that his father told them that he was not in the house, and he then fled and had to hide. He claimed that some of these men had remained in his village looking for him, and that they did not return to his house but stopped his father in the street and asked where he was. He said that other Awami League members from his village also began asking his father where he was.

4. The Tribunal asked the applicant why he had not previously raised the claims that the Awami League supporters had come to his village and his home looking for him and that he had been in hiding in his village before leaving Bangladesh because of this, and he said that he did not think these matters were important.

5. The applicant confirmed in his evidence at the hearing that he was not himself a member of the BNP or any other political party, and that he had never attended any BNP meetings or rallies. He said that he sometimes accompanied [Mr A] to meetings, but always waited outside for him or returned to the [business] after [Mr A] went into the meetings. He said that he had not known any political party members other than [Mr A], and repeated that his only involvement with [Mr A] was to work for him.

6. The Tribunal put to the applicant that available country information, including the most recent DFAT report to which it was required to have regard, indicated that while BNP activists and members have been targeted in violent attacks by Awami League members. He had denied that he was involved with the BNP in any way, and repeated that he had been targeted because he helped [Mr A]. In response to questions from the Tribunal he again stated that he did not know how the Awami League members had obtained his new telephone number after he changed his SIM card, that he did not know how they found his address, and repeated that they had come to his village looking for him before he left Bangladesh.

7. The Tribunal asked why he would have been the subject of such attention simply for helping his employer after he had been attacked, and he responded that in Bangladesh ‘only the little people are harmed’. He said that he feared that if he returned to Bangladesh he would be killed, as his father has told him that the Awami League people are still coming to his house.

8. After a break in the hearing to enable the applicant to consult his representative, he told the Tribunal that he had lost his job in Bangladesh because of political reasons and that he had not told the whole story to the Department because he didn’t know that was necessary. His representative submitted that the applicant’s problems in Bangladesh were due to political opinions imputed to him because of his actions in helping his former employer.

   Country information

9. The current DFAT report on Bangladesh[1] states:

   [1] Department of Foreign Affairs and Trade (DFAT) DFAT Country Report Bangladesh, 20 October 2014

   Opposition Parties—Bangladesh Nationalist Party and Jamaat-e-Islami

   3.50 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.

   3.51 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.

   3.52 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.

   3.53 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).

   Opposition Parties – Official Discrimination or Violence

   3.54 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 (see ‘Complementary Protection Claims’, below).

   3.55 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.

10. A recent report published by the Immigration and Refugee Board of Canada[2] provides an overview of the current situation in Bangladesh and compiles reports from many (identified) sources. The report states:

    [2] Immigration and Refugee Board of Canada, Bangladesh: Bangladesh Nationalist Party (BNP), including its structure, leaders, membership and membership documents, factions, associated organizations and activities; treatment of members and supporters by authorities (September 2012-2015), 31 August 2015, BGD105262.E, available at:  [accessed 16 December 2015]

    1. Overview

    According to sources, the Bangladesh Nationalist Party (BNP) [Bangladesh Jatiyatabadi Dal] was established in 1978 (BNP. n.d.b; PHW 2014, 114). Sources describe it as the main opposition party (Al Jazeera 5 Jan. 2014; Jane's Intelligence Review 2 July 2015; The Wall Street Journal 1 Aug. 2013). Sources further describe the party as "center-right" (ibid.; UCAN 5 Jan. 2015; IRGAmag 7 Aug. 2013). According to the BNP's Constitution, as posted on the party's website, their objectives include: increasing democracy through "mass unity based on Bangladeshi nationalism"; protecting Bangladesh from "colonialism"; advancing economic development through a "free market economy"; and "preserv[ing] the…human values of the Bangladeshi people through the teaching of Islam" (BNP n.d.a, Art. 2). According to sources, the BNP leads an 18-party alliance (PHW 2014, 115; South Asia Monitor 27 July 2015; Al Jazeera 5 Jan. 2014).

    According to the BBC, the ruling Awami League (AL) and BNP have "alternated from government to opposition for most of the last two decades" (BBC 3 Jan. 2014). Sources state that the BNP were elected to government from 1991-1996 and from 2001-2006 (ibid.; PHW 2014, 111-112). A 2014 monitoring report by Human Rights Watch on pre and post-election violence describes the relationship between the ruling AL and the BNP as "longstanding, bitter, personal, and [which] often turns violent" (Human Rights Watch Apr. 2014, 10). Sources describe the relationship between the leaders of the BNP and AL as a "personal feud" (The Guardian 6 Jan. 2014) or a "personal vendetta" (The Economist 2 Feb. 2015). …

    4.1.1 Boycotting of 2014 Elections

    Sources state that the BNP and other opposition parties boycotted the January 2014 general elections (US 30 Apr. 2015, 193; BBC 5 Jan. 2015; The Christian Science Monitor 5 Jan. 2014), in response to the refusal of AL leader, Sheikh Hasina, to allow a "neutral caretaker" government to oversee the election (ibid.; BBC 5 Jan. 2015). The neutral caretaker system was seen as a safeguard against election fraud that had been used in Bangladesh since 1996 (UN 4 Feb. 2014; Human Rights Watch Apr. 2014, 10), a system that AL initially demanded be put in place while in opposition to the BNP (ibid.). It was abolished by the AL (ibid.; UN 4 Feb. 2014; The Daily Star 1 July 2011) in 2011 (ibid.).

    As a result of the election boycott, the majority of the parliamentary seats were uncontested (Human Rights Watch Apr. 2014, 1; AFP 5 Jan. 2015; US 25 June 2015, 1) and the ruling AL won the election (ibid.). According to sources, there was also a low voter turnout (Freedom House 28 Jan. 2015; The Independent 6 Jan. 2014; International New York Times 5 Jan. 2014). Voter participation estimates ranged from 22 percent (The Independent 6 Jan. 2014; International New York Times 5 Jan. 2014) to 40 percent (US 25 June 2015, 20). According to sources, AL won between 232 (The Independent 6 Jan. 2014; The Guardian 6 Jan. 2014) and 235 of the 300 directly elected seats (US 25 June 2015, 20).

    4.1.2 Political Violence and the January 2014 Elections

    Sources state that prior to the January 2014 elections, the BNP-led opposition called for "blockades" [abarudh, or traffic blockades] in October 2013 (Human Rights Watch Apr. 2014, 13; New Age 14 June 2015) and hartals [general strikes] in October 2013 (ibid). Sources further state that BNP and Jamaat-e-Islami supporters allegedly used petrol bombs to enforce the blockades (Human Rights Watch 29 Jan. 2015; The Diplomat 22 May 2015). According to Human Rights Watch, BNP and Jamaat supporters were identified by their neighbours as being responsible for attacks on Hindu homes and businesses, including an attack on the village of Kornai in Diajpur district (Human Rights Watch Apr. 2014, 19, 20). Sources state that approximately 500 people were killed in political violence leading up to the January 2014 elections (AFP 5 Jan. 2015; Andersen 4 May 2015). According to Human Rights Watch, the January 2014 elections "were the most violent in the country's history" (Apr. 2014, 1).

    Sources indicate that opposition supporters also attacked polling stations during the 2014 elections (ibid., 13; AFP 5 Jan. 2015). According to the 2014 monitoring report by Odhikar, BNP supporters removed ballot boxes and papers from a school in Digharpar and polling was subsequently suspended at that location (Odhikar 1 July 2014, 15). The same source further reports that BNP and Jamaat activists attacked Palpara and Sahapur polling centers (ibid.). According to Human Rights Watch, local media reported that on 4 January 2014, between 100 and 150 BNP-Jamaat supporters attacked the Molani Cheprikura polling station in Thakurgaon (Human Rights Watch Apr. 2014, 18).

    The US Department of State's Country Reports on Human Rights Practices for 2014 for Bangladesh, states that violence decreased after the elections, though it did not end (US 25 June 2015, 3). The same source cites a local NGO as reporting that "124 persons were killed and 6,087 injured" in political violence between January and August 2014 (ibid.).

    5.1 Pre and Post-2014 Elections

    According to Freedom House, "harassment of the opposition" by the ruling AL party was "widespread in 2014," and included "preemptive detention and limitations placed on political activities" (28 Jan. 2015). Reporting in February 2015, the Economist states that "more than 10,000 opposition activists" have been arrested (2 Feb. 2015).

    Sources report the following instances of treatment of BNP members by the authorities, before and after the 2014 elections:

    According to Human Rights Watch, in November 2013, several BNP members, including BNP standing committee members, a BNP executive committee member, the organizing secretary of BNP's central committee in Chittagong, BNP Joint Secretary General, and BNP head Khaleda Zia's special assistant were arrested; charged with various crimes related to inciting violence; and later released on bail (Human Rights Watch Apr. 2014, 50-54).

    On 27 November 2013, BNP politicians Saiful Islam Hiru and Humayuan Kabir Pervez disappeared; according to Human Rights Watch, they were reportedly last seen being "forcibly transferred to a RAB [Rapid Action Battalion] vehicle" (ibid., 47).

    According to Human Rights Watch, on 26 December 2013, a number of BNP members were reportedly arrested, including two who were charged with "vandalism and torching vehicles"; all were later released (ibid., 53-55).

    According to Human Rights Watch, on 30 December 2013, a "local BNP leader [was] killed by security forces" in an alleged "gunfight between the security forces and Jamaat-Shibir members in the Satkhira district," however, relatives claim that he had been detained by security forces earlier that day (ibid., 36).

    According to Odhikar, between 1 January 2014 and 30 June 2014, 12 "leaders-activists" of the BNP were among 108 people from several political parties who were killed "extra-judicially" (Odhikar 1 July 2014, 4).

11. The Tribunal is satisfied on the basis of these country reports that political activists and members of both the BNP and the Awami League have been victims of political violence in Bangladesh in recent years and that these problems continue to plague the country.

12. The applicant has made no claim to have been a member of any political party or to have been active in politics in Bangladesh. His claim is rather that because he assisted his former employer, [Mr A], who was a BNP member when he was attacked by Awami League supports in Dhaka he has had similar political opinions imputed to him.

13. The Tribunal accepts for the purposes of this decision the applicant’s claim to have assisted [Mr A] when he was attacked in Dhaka, and also considers that it is credible that the Awami League supporters who attacked [Mr A] may have asked the applicant about his whereabouts and assaulted him when he was unable to provide them with the information they sought.

14. The Tribunal does not accept the applicant’s claim that these Awami League supporters were able to locate him in his village, some 4 hours by bus from Dhaka according to the applicant, after he fled from Dhaka or that they could have obtained his new telephone number within a day of him changing his SIM card in his home village. The applicant has provided no explanation as to how the Awami League supporters could have traced either his new number or his address in his village, and the Tribunal does not consider that the country information provides any support for the proposition that a person with no political involvement would attract such a level of interest on the part of the Awami League that they would pursue him in this way.

15. In making these findings the Tribunal notes that it does not regard the claims raised by the applicant at the hearing that the Awami League supporters had been looking for him in his village before his departure from Bangladesh as credible given his failure to raise these claims previously. The Tribunal rejects his claim that he did not raise these matters earlier because he did not think they were important. Following his interview at the Department his adviser made further submissions in which they referred to his instructions that ‘he has been recently informed by his father in Bangladesh that people associated with the Awami League have questioned his father as to his whereabouts’. Further written submissions made just prior to the hearing also referred to ‘new claims’ by the applicant that ‘in February 2015 his brother informed him that their father had been punched in the eye when approached by unknown men at his residence in September or October 2014’, and noted that he had told the delegate about this incident at his interview but had not been aware at the time that his father had been physically assaulted.

16. The Tribunal does not consider that it is credible that the applicant would see it as important to tell the Department that Awami League supporters had been looking for him in his village after he left Bangladesh but fail to mention that they had been looking for him in the village prior to his departure.

17. In the circumstances, the Tribunal does not accept the applicant’s claim that Awami League supporters went to his village after he left Dhaka to look for him, either before or after he left Bangladesh.

18. The Tribunal does not accept that the applicant has been targeted by Awami League supporters because of political opinions imputed to him because he assisted his former employer [Mr A] in Dhaka. As stated above, he may have been questioned as to his knowledge of [Mr A’s] whereabouts before he left Dhaka, and may have been assaulted in the course of that interaction, however the Tribunal is satisfied that this incident, if it occurred, would have occurred because he was [Mr A’s] employee and not because he was perceived as a ‘BNP supporter’ because he assisted [Mr A].

19. The Tribunal is also satisfied that even if the applicant’s claims as to the incidents in Dhaka are true, there is nothing in the available country information to support his claim that this would have led the Awami League supporters to trace him to his village and to threaten and assault his father while looking for him.

20. The Tribunal is satisfied therefore that the applicant has no reason to fear persecution should he return to Bangladesh on the basis of his political opinion, imputed or otherwise, and that there is not a real chance that he would face such persecution were he to return to his home village in Bangladesh.

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

22. 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). Having rejected the applicant’s claims as to the ongoing interest of the Awami League supporters in him in Bangladesh, the Tribunal does not accept that there is a real risk that he will suffer significant harm should he return to Bangladesh.

1. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

   DECISION

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

   Bruce Henry
   Member