1418237 (Refugee)

[2016] AATA 3657

1418237 (Refugee) [2016] AATA 3657 (12 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418237

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Linda Symons

DATE:12 April 2016

PLACE OF DECISION:  Sydney

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

Statement made on 12 April 2016 at 5:28pm

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, arrived in Australia by boat [in] March 2013. He was detained and subsequently issued with a Bridging visa [in] July 2013. This visa expired [in] September 2013 and he thereafter became an unlawful non-citizen. [In] April 2015, he was granted a further Bridging visa in association with his application for a Protection visa.

3. The applicant applied to the Department of Immigration and Border Protection (the Department) for the Protection visa [in] August 2013 and the delegate refused to grant the visa [in] October 2014. On 7 November 2014, he applied to the Tribunal for review of that decision.

4. The applicant appeared before the Tribunal on 12 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

5. The issues that arise on review are whether Australia has protection obligations to the applicant under the Refugees Convention or under the complementary protection criterion.

   RELEVANT LAW

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

   Refugee criterion

7. 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).

   Complementary protection criterion

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’).

   Section 499 Ministerial Direction

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 –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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

10. The applicant’s claims in his application for a Protection visa are summarised as follows:

    ·He was born in Bangladesh and is an ethnic Bengali. He is single.

    ·After completing school, he worked as [an occupation] for [number] years and then worked as [another occupation] with his [Relative A] in Dhaka. He thereafter opened his own shop in his village.

    ·While operating his shop he became involved in the politics of Jamaat-e-Islami (JI). He was a ‘general supporting member’ and did not have a portfolio. Monthly meetings were held in the party office in his village.

    ·

    One of the party leaders, [named], had been an Opposition MP. He collaborated with the resistance during the liberation of Bangladesh and was arrested.

    
    

    They had a demonstration protesting against the government in January 2013. The government was angry about the demonstrations which are still going on. He did not participate in the demonstration. However, the government is targeting all young supporters of the JI.

    ·One of the Awami League (AL) supporters went to his shop while he was away. His shop and a number of other shops were ransacked by the AL. His [Relative A] informed him of the visit and warned him not to stay around and to make plans to leave Bangladesh. His [Relative A] is a member of the AL. He told him that he could not protect him as he had been told by his party not to get involved. He warned him to leave or risk being killed by them.

    ·He went to Dhaka but did not stay with his [sibling] as the AL were searching for him and visited his [sibling’s] house enquiring about his whereabouts. All JI supporters were being looked for throughout Dhaka and all the villages. It was known that the supporters were being killed once found. Some were shot and others were beaten to death. He stayed with friends but was in hiding for [several] days before leaving to come to Australia.

    ·He cannot return to Bangladesh as he will be seriously harmed or killed. He cannot relocate as the AL is in power and are still looking for all JI supporters. It would not be safe for him to return to any place in Bangladesh. The AL is in government so will not offer him any protection.

11. In his visa application, the applicant claimed that he left Bangladesh in February 2013 and travelled to Australia via [several different countries]. He has not provided any details of a travel document. 

12. The applicant has provided to the Department copies of his Bangladeshi Birth Certificate, his Secondary School Certificate and National Identity statement. He also provided the Department with a letter from the JI party.  

13. The applicant attended an interview with the Department [in] September 2014 in relation to his application for a Protection visa. He has filed with the Tribunal a copy of the Department’s Decision Record dated [in] October 2014. It indicates that, during his interview [in] September 2014, he re-iterated and expanded on his written claims. It indicates that he also made the following new claims:

    ·He attended a number of JI rallies in Bangladesh. [In] January 2013, he attended a demonstration against the government’s price increase on oil.

14. [In] October 2014, the Department received post interview submissions from the applicant’s migration agent.

    Does Australia have protection obligations to the applicant under the Refugees Convention?

15. The Tribunal finds that the applicant is a citizen of Bangladesh, based on his Bangladeshi Birth Certificate and Secondary School Certificate of Education and his fluency in the Bengali language, and will assess his claims on this basis. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.

16. The applicant gave evidence to the Tribunal that his migration agent prepared his visa application based on his instructions which were true and correct. He stated that he is satisfied that his visa application is accurate and complete.

17. The Tribunal discussed with the applicant his background, his family, his involvement in politics in Bangladesh, his reasons for coming to Australia and why he fears returning to Bangladesh. There were a number of inconsistencies between his oral evidence and his written evidence. Aspects of his evidence were vague and unconvincing. The Tribunal has considered the evidence given by the applicant and has concerns in relation to his credibility and the veracity of his claims. The Tribunal’s concerns are noted below.

18. The Tribunal discussed with the applicant his involvement with JI and his knowledge of JI. He gave evidence that his whole family were supporters of the AL and he was the exception as he was a member of JI. He stated that he became a member of JI at the end of 1998 after he completed his Senior School Certificate. He was [age] years old at that time. He stated that he became interested in JI because they talked about religion and were honest and he thought they were the best political party. When questioned about how he could have become a member of JI at the age of [age] years, he responded that it is allowed in his country, he went to their office where they have a registration book and where they took his particulars and put it in the book.

19. The applicant’s evidence to the Tribunal in relation to when he first became involved with JI (1998) is inconsistent with his written evidence in his Statutory Declaration dated [in] August 2013 in which he stated that he became involved with JI while operating his shop. His evidence is that he started operating his shop in 2006 and did so until 2013.    

20. The Tribunal asked the applicant what he did as a member of JI. He responded that he attended meetings, processions and rallies. He stated that he sometimes stood on the street on a Friday and collected money which was then distributed to the poor. When asked how often he attended meetings, he stated that when he was unemployed he attended meetings 3 times a month but after he started working in his shop he attended meetings once or sometimes twice a month. This is inconsistent with his written evidence in his Statutory Declaration dated [in] August 2013 in which he stated that he became involved with JI after he started working and the JI meetings were conducted on a monthly basis.

21. The Tribunal asked the applicant what was discussed at the JI meetings. He responded that they talked about the activities of the current government and the JI’s plans for the future. When asked about the policies of JI, he responded that the main policy is to discuss the whole party, give local people the message and include them in the party. When asked what message he was referring to, he responded that the supporters of JI and AL are Muslims but in the JI they ask members every week whether they had prayed 5 times a day and they talk about prayer. When asked about the five fundamental beliefs of the JI, he responded that he did not know. When asked to describe the flag of the JI, he responded that he did not have much knowledge about the JI but used to be a regular supporter.

22. When the Tribunal asked the applicant about the processions and rallies he attended, he responded that he could not remember exactly how many processions he attended but stated that he attended approximately 10 to 12 processions. He stated that he could not remember the dates he attended the processions except for one procession [in] January 2013 when there was a protest against the increase in the price of fuel. This is inconsistent with his written evidence in his Statutory Declaration dated [in] August 2013 in which he stated that he did not participate in the demonstrations.

23. The Tribunal asked the applicant whether he had ever voted for JI and he responded no. When asked why not, he responded that there was an election when he was in Dhaka but he did not manage to vote.[1] He stated that he lived in an area that is dominated by the AL. He stated that he did not want to expose himself as a supporter of the JI. When asked whether attending meetings and rallies organized by the JI did not expose him as a supporter of the JI, he agreed. He stated that there could have been AL supporters at the polling centre who saw him and beat him so he did not go to the polling centre. When asked whether voting for the JI wasn’t one of the main purposes of being a member of the JI, he agreed and stated that it was the main goal. He stated that in his area the percentage of JI supporters is so low that even if he voted they would not have won the seat.  

    [1] The country information from the Election Commission Bangladesh indicates that there were national elections in 2001, 2002 and 2009.The applicant’s evidence is that he was living in his village from 2006 to 2013. (>

    The applicant gave evidence to the Tribunal that since coming to Australia he has not supported JI. When asked why not, he responded that his parents told him that he had to leave the country because of his involvement in a political party and they did not want him to have any further involvement in a political party. When asked whether it was his intention to support JI if he returned to Bangladesh, he responded that he did not wish to get involved in any sort of political activities if he returned to Bangladesh. When asked if he had kept up to date with what is happening with JI, he responded that he did not. He stated that he sometimes sees news on Facebook. When asked what has happened to JI now, he responded that the party is still there but the AL has arrested and hanged the main leaders.

24. The country information indicates that in August 2013 the Bangladesh High Court deregistered the JI thereby banning it from participating in future elections.[2] The Tribunal would expect that if the applicant was a member of the JI since 1998 he would be aware of such a significant event affecting the JI.  

    [2] Is Bangladesh’s ban on Jamaat-e-Islami democratic?, The Diplomat, 7 August 2013. (>

    The inconsistencies in the applicant’s evidence, his poor knowledge of the JI, his failure to vote for the JI in elections despite claiming to be a member of the party since 1998 and his reasons for failing to do so raise serious doubts that he was ever a member or supporter of the JI. When the Tribunal raised this as an issue with the applicant, he responded that he was not deeply involved in politics and that is why he does not know the names of the main leaders. The Tribunal does not accept this explanation.

25. The Tribunal discussed with the applicant his claims in relation to his shop being ransacked and the events that flowed from that. He stated that an incident occurred [on a date in] January 2013 which led to him leaving Bangladesh and coming to Australia. He stated that on [that day in] January 2013 he closed his shop and went home for lunch. He stated that his [Relative A], who is an AL supporter, contacted him and informed him that some AL supporters had destroyed his shop. He stated that his [Relative A] told him that another shop was run by a JI supporter and that person was beaten and his shop destroyed. He stated that his [Relative A] warned him that he could be beaten as well.

26. The Tribunal asked the applicant how many shops were destroyed by the AL on [that date in] January 2013. He responded just two; his shop and one other person’s shop. This is not consistent with his written evidence in his Statutory Declaration dated [in] August 2013 in which he stated that a number of shops were ransacked by the AL. When asked why his shop was destroyed by the AL supporters, he responded that he attended the demonstration [in] January 2013. (This is not consistent with his written evidence in his Statutory Declaration dated [in] August 2013 in which he stated that he did not participate in the demonstrations). He stated that he left the demonstration early as he needed to return to his shop. He stated that after he left he heard that some of the JI supporters threw rocks at the office of the AL and that was why the AL destroyed his shop.

27. The applicant gave evidence to the Tribunal that he left his village on [the same day in] January 2013, went to Dhaka and did not return to his village thereafter. He stated that he did not go to his [sibling’s] house in Dhaka as his father and other people warned him not to do so. He stated that he stayed with a friend in Dhaka in hiding for [several] days and then left Bangladesh on [a later date in] January 2013.

28. The applicant was interviewed by the Department [in] June 2013. During that interview he was asked about his employment history. He responded that the only job he did in Bangladesh was with his [Relative A], when he worked as a [different occupation] in his [Relative A’s] [business] from 2000 to 2006. He made no mention of running his own shop in his village from 2006 to 2013. In his application for a Protection visa, the applicant set out his employment history and again the only employment he mentioned was that he worked with [Relative A] from 2000 to 2006. He made no mention in his visa application of having his own shop in his village from 2006 to 2013. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that if he did not have a shop, the AL could not have ransacked his shop and made threats again him. The Tribunal noted that this raised issues in relation to the credibility of his claims.

29. The applicant responded that he could not remember whether the Department asked him about his shop during his interview and if they had he would have mentioned the shop. When the Tribunal noted that in both instances he was responding to questions about his employment in Bangladesh, he responded that he thought he was being asked about his job and he does not think they mentioned self-employment.  

30. The Tribunal has some doubts in relation to whether the applicant misunderstood the meaning of ‘employment’. He was represented by a migration agent at the time his application for a Protection visa was prepared. However, the Tribunal notes that in his Statutory Declaration dated [in] August 2013, which accompanied his application for a Protection visa, he stated that he operated a shop. Therefore, the Tribunal is prepared to give him the benefit of the doubt and accept that he had a shop in his village from 2006 to 2013.

31. The applicant was interviewed by the Department [in] June 2013. During that interview he was asked about his residential addresses in Bangladesh. He stated that he lived in his village from the time of his birth until 2000 and then lived in Dhaka from 2000 to 2006. He stated that he returned to his village and lived there from 2006 until 10 February 2013. He stated that he left Bangladesh on [a specific date in] February 2013 to travel to Australia. The applicant gave evidence to the Tribunal that he left his village on [the specific date in] January 2013 and did not return to his village after that date. He stated that he lived in Dhaka in hiding for [several] days until he left Bangladesh [later in] January 2013. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that these inconsistencies in his evidence raised concerns in relation to the credibility of his claims.

32. The applicant responded that this issue was also raised with him by the Department during his interview with them. He stated that he does not understand if this was a mistake made by the interpreter or him. He stated that when he arrived in Australia he was nervous and could have made a mistake. When the Tribunal noted that it would expect his memory of events to be more accurate in June 2013 than in April 2016, he responded that he was under pressure at that time as he did not have a job or any stability. He stated that he is more stable now and has a job.

1. The Tribunal accepts that the applicant may have been nervous and felt under pressure when interviewed by the Department in June 2013. However, the Tribunal does not accept that this explains the inconsistencies in his evidence. In his application for a Protection visa lodged [in] August 2013, when he was represented by a migration agent, he stated that he resided in his village until [a specific date in] February 2013 (as he stated during his interview [in] June 2013) and travelled to [Country 1] on [a later date in] February 2013. Therefore, his oral evidence during his interview with the Department [in] June 2013 and his written evidence in his visa application in relation to when he stopped residing in his village are consistent and are inconsistent with his evidence to the Tribunal that he left his village on [the day in] January 2013 when his shop was destroyed.

2. The applicant has provided to the Department a copy of a letter from JI. The Tribunal discussed this letter and its contents with the applicant. He stated that his father went to the JI leader, after his interview with the Department in 2014, and obtained the letter. He stated that the information in the letter is true and correct and that it is an authentic document. Information about the applicant in the letter is not consistent with the evidence given by the applicant. For instance, the letter states that several attempts were made to kill the applicant and that they are trying to start a political case against him. Despite being asked a number of questions in relation to any other problems he had in Bangladesh and any other concerns he had in relation to returning to Bangladesh, the applicant did not claim at any point in time that several attempts were made to kill him or that they (presumably the AL) were trying to start a political case against him.  

3. The Tribunal raised this as an issue with the applicant and its concerns in relation to the authenticity of this letter. The Tribunal also discussed with him country information which indicates that it is very easy to obtain fraudulent documents in Bangladesh and that the use of fraudulent document is very prevalent in Bangladesh. He responded that the letter is written in English and his English is limited. He stated that he is unaware of the contents of the letter. He stated that he asked his father to obtain the letter and is unaware of what his father told the writer. When the Tribunal reminded him of his earlier evidence that the contents of the letter were true and correct, he apologised. He stated that he asked his father if the contents of the letter were okay and he said everything was okay.

4. The Tribunal is not satisfied, on the evidence before it, that the letter from the JI is an authentic document. Therefore, the Tribunal places no weight on it.

5. The Tribunal has considered the submissions made by the applicant’s migration agent to the Department. In his/her submissions, he/she stated that the applicant has two choices if he returns to Bangladesh; continue to support JI and face the prospect of being harmed by political opponents or relocate away from his home village and not publicise his support for JI in order to avoid any harm. The Tribunal does not accept these submissions in view of the applicant’s own evidence to the Tribunal that if he returns to Bangladesh he does not want to get involved in any sort of political activities.

   Findings

6. Having considered all the applicant’s claims and the evidence, the Tribunal finds that the applicant is not a reliable or credible witness. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.

7. The Tribunal does not accept that the applicant was ever a supporter or member of JI. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal does not accept that he attended a demonstration [in] January 2013 to protest against the rise in fuel costs. The Tribunal accepts that he had a shop in his village. The Tribunal does not accept that his shop was destroyed by supporters of the AL or that they made threats to kill him. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal accepts that the applicant left his village [in] February 2013, went to Dhaka for [several] days and then left for Australia on [the later date in] February 2013. The Tribunal accepts that he travelled to Australia via [several different countries].

8. The Tribunal does not accept that the applicant is of adverse interest to AL supporters/members or the Bangladeshi authorities. It follows that the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm at the hands of AL supporters/members or the Bangladesh authorities if he returns to Bangladesh. The Tribunal accepts that the applicant does not wish to return to Bangladesh.

9. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence the Tribunal finds that there is no real chance that the applicant would be at risk of persecution on the grounds of his actual or implied political opinion or any other Refugee Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Refugee Convention reason. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act. 

   Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

10. The Tribunal has considered the applicant’s claims under complementary protection. 

11. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.

12. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Bangladesh now or in the reasonably foreseeable future.    

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

    CONCLUSION

14. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.

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

    DECISION

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

Linda Symons

         

Member