1418321 (Refugee)

[2016] AATA 4962

1418321 (Refugee) [2016] AATA 4962 (30 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418321

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Penelope Hunter

DATE:30 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 30 June 2016 at 10:13am

CATCHWORDS

REFUGEE – protection visa – Bangladesh – political opinion – supporter of Bangladesh National Party – harassment by Awami League – particular social group – political activist – victim of torture, threats and harassment – father murdered by Awami league members – inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 424AA, 424A, 499

Migration Regulations 1994 (Cth), 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 arrived in Australia by boat and claims to be a citizen of Bangladesh. He applied for the visa on 24 July 2013 on the basis that he was a supporter of the Bangladesh National Party (BNP) and his father was killed by the opposition party, the Bangladesh Awami League (Awami League). The delegate refused to grant the visa on 5 November 2014.

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

   RELEVANT LAW

4. 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.

5. 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).

6. 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.

7. 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’).

   MINISTERIAL GUIDELINES

8. 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.

   INFORMATION AND CLAIMS

9. The Tribunal has before it the Departmental and Tribunal files relating to the applicant. The Tribunal has also had regard to the material referred to in the delegate’s decision together with other material available to it from a range of sources.

10. The applicant is a single male who claims to be born [on date], in [Village 1], Shariatpur District in the Division of Dhaka, Bangladesh. He departed Bangladesh [in] March 2013 and arrived in Australia by boat [in] April 2013. He described his occupation in Bangladesh as a voluntary political activist. The applicant’s father is deceased, his mother continues to reside in Bangladesh. He has [a number of] brothers, who he claims are in hiding in Bangladesh, and [number of] sisters.

11. On 10 May 2013, the applicant underwent an Irregular Maritime Arrival Entry Interview with and officer of the Department. A written record of that interview  is contained in the Department file. It is recorded that the applicant claimed his father and [several] brothers were working as [senior members] of the BNP and when the Awami League came to power in 2009 they started torturing and beating his family. They came looking for his family at his house 4 times a week. The last time that they came was [in] November 2010. 15 Awami League supporters came to his house armed with pistols, stick and knives. His father was shot in the head and killed. The applicant was shot in the [body part]. After this incident the applicant’s family dispersed from his house because if they went home they would be killed. The applicant stayed with his aunt but somehow the Awami League came to know where he lived so he had to leave. He claimed to have participated in armed conflict or fighting at the end of 2009, with the Awami League supporters. They used to beat him so he decided to go and fight them. He did not operate a weapon but carried a black pistol.

12. On 24 July 2013, with the assistance of a migration agent, the applicant submitted to the Department, a written claim for a protection visa. Within this application in a statutory declaration dated [in] July 2013, the applicant set out his claims as follows;

    (i)His father was an active BNP member who rose to [a senior position] of the BNP party representing of villages, including [Village 1] [Union Parishad 1]. As [a senior member] his father was involved in organising political meetings, rallies and other BNP related activities.

    (ii)Since the Awami League came to power in 2009 his father was targeted by Awami League supporters and members. Despite this his father continued to play a role in [Union Parishad 1]

    (iii)[In] September 2010, 10-15 Awami League supporters and members some of whom were armed, came to is residence and forced themselves in and began beating the applicant and his family members. The applicant and his brother’s tried to retaliate as soon as they realised that they were after his father. In spite of their efforts one of the Awami League supporters shot his father in the right side of the head at point blank rage.

    (iv)During the altercation [some] of his brothers were seriously injured as the Awami League stabbed each of them. The applicant was not stabbed but the perpetrator who shot his father fired a bullet into his [body part] while he was on the floor. 

    (v)The perpetrators eventually left his residence after destroying household property. A while later they returned to his residence and set it alight while all the family members were away.

    (vi)The applicant’s uncle took him to hospital [in] Dhaka where he was treated. His brothers were taken to another hospital

    (vii)After 9/10 days the applicant was taken to his paternal aunt’s residence situated in [Dhaka] city where he lived from the end of September 2010 to March 2013.

    (viii)The applicant’s mother attempted to make an official complaint at the nearest police station but the officers refused to record the complaint or take action against the perpetrators as the case involved ruling party supporters.

    (ix)His mother returned to his village in 2011, however none of his siblings returned as they feared that the Awami League would kill them.

    (x)While residing at his aunt’s the applicant learned that the Awami League had gone to his mother’s residence in the village to search for him and his brothers. His mother told him that the Awami League verbally and physically assaulted her several times on account of the applicant’s father previous involvement with BNP and to disclose the whereabouts of her children.

    (xi)A few weeks before he fled Bangladesh his aunt learnt through contacts in his village that members of the Awami League had learnt about his whereabouts and were planning to harm him.

13. The applicant also submitted to the Department a copy of a medical document of [Dr A]  dated [in] September 2010, a copy of an extract of a birth certificate, and copy of a nationality certificate and letter from the Chairman of [Union Parishad 1], Shariatpur dated [in] May 2013. 

14. The applicant underwent an interview with a delegate of the Minister on 9 October 2014. A copy of the delegate’s decision has been filed with the Tribunal. The Tribunal has listened to the recording of the interview with the delegate and is satisfied that the delegate has accurately recorded the information provided by the applicant at the interview. During the interview the applicant raised the further claim that since he had arrived in Australia he had found out that the Awami League supporters had come to his aunt’s residence in Dhaka on several occasions. In refusing the visa application, the delegate did not find material elements of the applicant’s claims to be credible.

15. At the hearing on 4 May 2016, the Tribunal discussed with the applicant his background, family, employment history, his political involvement with the BNP and his claims for protection. Where relevant the Tribunal has set out further the evidence of the applicant below.

    FINDINGS AND REASONS

16. On the basis of the applicant’s consistent information provide to the Department and the Tribunal about where he was born and citizenship of Bangladesh, and the copy of his birth certificate provided to the Department, the Tribunal finds that the applicant is a citizen of Bangladesh.  There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Bangladesh.  Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicant is a national of Bangladesh, the Tribunal also finds that Bangladesh is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

17. The applicant’s evidence on central aspects of his claims was variously vague, unsubstantiated, as well as often inconsistent with his earlier evidence. Having considered the applicants account, together with the country information cited in the delegate’s decision record and other information the Tribunal does not accept the applicant’s claims to have been a political activist, that his father was a [senior member] of the BNP, and that together with his family, he has suffered harm from the Awami League as a result. For reasons outlined below the Tribunal is not satisfied that the claims of the applicant are credible.

18. The Tribunal was concerned that the applicant had given inconsistent information about his family background and association with the BNP. Firstly the applicant has given different information about the employment of his father. To the Tribunal that applicant claimed that his father worked in the family [business] however spent most of his time involved in politics. It was put to the applicant pursuant to s. 424AA of the Act that in his entry interview, conducted on 10 May 2013, the applicant claimed that his father worked for the [government]. The applicant chose to comment immediately on the inconsistency and claimed that he was not in a correct frame of mind at the time of his entry interview and could not recall his responses. The Tribunal is cautious to put too much weight on the entry interview, however the shifting nature of the applicant’s evidence leads the Tribunal to question the claims presented, particularly the amount of time that his father was able to devote to his role in the BNP and that he was [a senior member] for [Union Parishad 1]. The applicant has also given conflicting information as to the membership of his family with the BNP. For example in his entry interview of 10 May 2013 the applicant claimed that both he and his brothers were BNP members, also that [other] brothers were BNP [senior members]. Then in his statutory declaration sworn [in] July 2013 he stated that his parents were staunch BNP members. Later in his interview with the delegate on 9 October 2014 the applicant said that he was a member of the BNP and joined the party in 2009. However at the hearing before the Tribunal, he told the Tribunal that only his father was commissioned as a member of the BNP, that he was only a supporter as were his brothers.  Further that his mother was only a supporter of the BNP and did not attend any meetings. The applicant did not respond when this information was put to him in writing following the hearing pursuant to s.424A of the Act. The Tribunal considers that as claims of political involvement with the BNP are central to his claims to fear harm in Bangladesh the applicant should be aware whether he was a member or not of the BNP,  and whether his family  were members and their roles. Further the inconsistency undermines the applicant’s credibility and his claimed profile with the BNP and that of his family.

19. The applicant has described his profession in Bangladesh as a volunteer political activist. Even allowing for the fact that he had been absent from Bangladesh for nearly three years his responses to questions about the BNP did not persuade the Tribunal that he was speaking from a background of someone with a history of political activism. In addition to the conflicting information about membership, although he claimed that his father was a [senior member] of the party for seven or eight years, he offered very little meaningful information as to what his father did in this role. It was only a generalised response that he would give speeches and participate in political activities. He did not have any further information about the role of his father in [Union Parishad 1], other than him being in charge of the local Union. He had no idea whether his family financially supported the party, and claimed that if someone was involved in politics that they should not have to contribute financially. The Tribunal was doubtful of the applicant’s claim that his father continued to be active as a BNP [senior member] after the 2009 election, and that the Awami League targeted him for this reason when the applicant was unable to identify any particular activities. The claim that his father was doing well and creating support for the BNP in his area the Tribunal found inconsistent with his later evidence that after the election his father was unable to take action against oppressive Awami League conduct as everyone in his village supported the Awami League and again that following the death of his father the family had no assistance, not even from the BNP, as the Awami League had all the power.

20. The Tribunal was also troubled by the applicant’s actual evidence as to his role with the BNP as a political activist. His evidence was only that he would stay with his brothers and following their instructions. The Tribunal put to the applicant for comment pursuant to s.424AA of the Act the claim in his entry interview that he had been involved in conflict with the Awami League, that he went to fight them as they used to beat him and he carried a black pistol. Again the applicant claimed to have no recollection of information that he conveyed during his entry interview in May 2013.  Although the applicant was able to describe the BNP flag, his evidence about the party were highly generalised, he was unable to identify policies, and as to why he supported them responded only that when they were in power a chaotic situation did not exist. He was also unable to identify coalition partners of the BNP and was confused as to the BNP candidate in the 2009 election. It is also noted from the delegate’s decision record that the applicant provided responses when asked in his interview in October 2014, which were similarly vague and uninformative. The applicant has no documentary evidence to support his claims of family association with the BNP or his father’s membership. The applicant told the Tribunal that he had additional documents that he wished to provide to the Department in support of his application; however the Department would not accept the documents. The applicant was asked to identify the documents however he did not do so. At the end of the hearing the Tribunal invited the applicant to submit any additional documents for consideration. No further material was provided. Overall the Tribunal had doubts that the applicant was active in politics at all in Bangladesh.

21. The applicant’s account at the hearing of the threats, torture and harassment that his family received from the Awami League following the 2009 elections was also evasive and lacking in detail. He claimed that they engaged in oppressive conduct and the Tribunal had to persist with questioning for examples of such conduct. The evidence of the alleged targeting of his father and his family was very similar to the incident that the applicant claims occurred September 2010. 10 -15 Awami League supporters would shout out the front of his house for the male members to come out. The applicant maintained that these supporters came with the intention of beating the members of his family, and would arrive sometimes weekly. Prior to September 2010, the applicant claimed that no member of his family was ever harmed as they used flee before the Awami League supporters got there. The Tribunal found the evidence of the applicant as to the persistency and the severity of the threats his family received to be unconvincing.

22. The applicant’s evidence as to the attack on his home by the Awami League was an issue that caused concern for the Tribunal. He ignored particulars provided in his statutory declaration and was unable to provide a detailed narrative of the event. The applicant claimed to have been at home with his family when again 10-15 Awami League supporters came to his house. He knew the men, but only insofar as they were Awami League supporters, because as a BNP supporter he knew his opposition. Although they were from his area he was unable to name them. His mother and younger brother fled out the back door of the house, but he claimed that there was insufficient time for the rest of the family. The applicant recounted that some of the men were carrying pistols and others were carrying knives but at the same time he did not know who had what in their hands. Although he was present he did not know what happened to his brothers and it was only later he heard that they were injured. He could not recall what the attackers said. The applicant claimed to witness his father being killed, and he claimed he was standing beside his father when he was shot. When the Tribunal put to the applicant that his description of the event lacked detail, he later claimed his father was in front of him, that is between the applicant and the shooter when he was shot. The applicant claimed that the shooter was standing up to 5 metres away from his father when he shot. In his statutory declaration of [July] 2013 he stated that his father was shot on the right side of his head at point blank range. When this inconsistency was put to him, he revised his answer. The Tribunal is not satisfied that this explains his initial response.  The applicant told the Tribunal that he was shot in the [body part] when he was standing as he went to support his father. This is inconsistent with his written statement where the applicant claimed to have fallen down and was shot. He could not recall when the men left or what happened next and claimed to have lost consciousness. Even if it was accepted that the applicant eventually lost consciousness, as was put to the applicant at the hearing, if he was actually in the room it was expected that he would have been able to narrate clearly the events as they occurred, up to that time, and the relative positions of his family members and their attackers, and that he would be able to faithfully relate what he meant when he claimed that his brothers tried to retaliate as set out in his written claims. The applicant has claimed that as he witnessed who shot and killed his father the Awami League continued to pursue him the following years in Bangladesh. However other than the man being one of 10-15 nameless Awami League supporters, the applicant did not identify the attackers. The Tribunal was not satisfied that the applicant’s responses at the hearing reflected any authentic, first-hand experience of the events he described.  

1. Following the attack on his home the applicant maintained he was taken to hospital [in] Dhaka, a [number] hour drive away. The applicant suggested that it was not safe for him to seek treatment locally and did not know where his siblings were treated for their injuries. The applicant claimed the medical evidence that he presented to the Department with his application confirmed his gunshot injury to his [body part]. The Tribunal has reviewed the medical document completed by [Dr A], trained in Rheumatology. The document is dated [in] September 2010, and lists the patient as [the applicant], aged [age].  The Tribunal is unable to discern a reference to a gunshot wound on the [body part] contained within the document. It also does not support that the applicant was admitted to [the] hospital for 10 days. Under the heading examination, is a reference to an x-ray [listing various body parts, and a specified minor injury].[1] The applicant was unable to account to the Tribunal for the information contained in the document and why it was not consistent with the injuries he claimed. The Tribunal concludes that no weight can be placed on it to support the claim that the applicant was shot in the [body part] following an attack on his home [in] September 2010.

   [1] Page 12 Department file

2. The Tribunal also had regard to the copy of a supporting letter submitted by the applicant written by [the] Chairman, [Union Parishad 1] dated [in] May 2013.[2] The letter claims to certify that the applicant’s father, [fought] with some criminals and armed persons [in] September 2010. At that fight [the father] has been dead and his small son [the applicant] wounded by bullet in his [body part], and more peoples wounded in the fighting, but [the applicant] fleeing the country without treatment. The Tribunal had concerns about the reliability of this document. Firstly the author did not correctly record the name of the applicant, and it stated that he was required to flee the country without treatment, when it was the applicant’s evidence that he remained in the country until March 2013 and had sought medical treatment. The description of the event does not set out that it was an attack at the applicant’s home or acknowledge that other sons of [the applicant’s father] were injured. Secondly the applicant was evasive when the Tribunal sought to clarify how he was known to the author. He claimed to know him from his locality and that he was a candidate in the last elections, and an Awami League official. With further questioning the applicant eventually conceded that he had never spoken to the Chairman personally. Thirdly the Tribunal has difficulty reconciling the statement by the Chairman that the applicant “basically is a cool & good man, he left the resident place by force of local politicians” with the applicant’s evidence that the Chairman was a local Awami League politician. As was put to the applicant at the hearing, if the Awami League was genuinely looking to kill him it was implausible that their politician would write him a reference. The applicant was unable to explain why the Chairperson in the letter seemed to be aware of the fact that the applicant had left the country, when he claimed that his mother had not told anyone of his whereabouts and he had claimed that the Awami League was still searching for him at his home and at his aunts in Dhaka. All of these raise concerns about the provenance of the document. The applicant explained that his mother had requested that the Chairman write the letter and that as she was not literate she did not realise that the Chairman had made a mistake. The Tribunal is not satisfied that the explanation provided by the applicant could satisfactorily allay these concerns. Finally, against the background of country information indicating that false or fraudulent documents are readily available in  Bangladesh[3] , these features of the letter lead  the Tribunal conclude that no weight can be placed it as support for the applicant claims of about the attack on his home [in] September 2010 or their political motivation.  

   [2] Page 6 Department file

   [3] DFAT Country Report – Bangladesh, 24 October 2014, at 5.42

3. The Tribunal has also considered the claim by the applicant in his statutory declaration of June 2013 that at the time of the attack the Awami League ransacked his house and that after his family had left his home they returned and set it alight. The Tribunal questioned the applicant on what happened to his home after the attack. He claimed that his mother returned to it in 2011. He told the Tribunal that he did not know what the Awami League did to his house after he left as he was not there. The Tribunal has difficulty reconciling this evidence with the applicant’s written claims, and when this was put to the applicant for comment his response was that he was not asked by the Tribunal if his house had been set alight. The Tribunal considers that the applicant should be able to recall material elements of his claims, particularly when asked direct questions about what happened to his home.

4. The Tribunal also considered the applicant’s claim that the police refused to act on any complaint of his mother. It was put to the applicant that if his father had been as influential in the BNP as he claimed, and the leader of several villages, that it was curious that the BNP party did not demand some form of action or provide assistance to his mother. The Tribunal is also concerned that the applicant has been unable to produce any independent evidence of the attack on his home, aside from the letter from the Chairperson, such as court documents or media reports of the incident. The explanation offered by the applicant was that in his local area the Awami League was very powerful and because he was not there he had no clear idea of what was happening. The Tribunal is troubled by the lack of supporting evidence The inability to provide detail when relating specific events, and the applicant’s omissions, inconsistencies with his earlier claims and the deficiency of his supporting documents, causes the Tribunal to doubt the credibility of the applicant and that of his claim of an attack on his home, that his father was killed in these circumstances and that he and his brothers were injured.

5. It also appeared highly implausible to the Tribunal that the Awami League continued to seek him at his home after the incident in September 2010. He claimed that his mother was constantly abused and assaulted by the Awami League due to his father’s involvement with the BNP and they sought the whereabouts of the applicant and his brothers. As was put to the applicant at the hearing, the Tribunal had considerable difficulty understanding why his mother would return alone to a house that had been ransacked and set alight and remain there in circumstances where it was claimed that she received continued abuse. Particularly when he and his brothers would not return home. The Tribunal struggled to understand why, if the Awami League was pursuing his siblings throughout the country because of the murder of his father, and when the applicant claimed that the Awami League was looking to kill him and his siblings, his mother would remain in the same home, when she also was present at the time of the attack. Further, although he had [other] sisters, when asked the applicant did not assert that they were harassed. In response to the Tribunal’s concerns the applicant claimed that as his mother had fled the house with his younger brother she was not there for the killing of his father and therefore not perceived as a witness. He also responded that she would only return home for periods and when the harassment got to bad she would go into hiding. The Tribunal struggled with this explanation as his mother was also present at the time that the incident took place, she was the one who the applicant claimed tried to report the matter to the police, and he at one point claimed that his mother was also BNP member and firm supporter. Further it did not make sense when the applicant was supported by relatives, and his sisters were married with homes of their own that his mother could not also avail herself of the support of relatives. The Tribunal considers the fact that his mother returned to the home and lived there as reflective of the fact that she did not actually fear harm in his village and does not accept that the applicant’s mother has been assaulted or harassed by the perpetrators or the attack or Awami League supporters since the applicant relocated to Dhaka.

6. The evidence of the applicant as to his experiences between 2010 and departing Bangladesh in 2013 is also unsatisfactory. In his statutory declaration the applicant set out that during the period from the end of September 2010 to March 2013 he lived with his aunt [in] Dhaka. He told the Tribunal that he did not engage in any work or any other activity, and claimed to be in hiding the entire time. His evidence shifted as to what he was doing during this period, he claimed that he was moved around to different suburbs of Dhaka, yet he was unable to identify the suburbs as he was transported there by car and did not observe the names. His aunt also sent him into hiding into the country outside of Dhaka. At one stage he was in a village for 5 months. Again the applicant could not identify the village or where it was situated, and offered the explanation that he was prohibited from going outside the house and stayed inside the whole time. The Tribunal considers it highly implausible, and the fact that the applicant cannot satisfactorily account for his whereabouts for the three years following the claimed attack on his family home further causes the Tribunal to doubt the credibility of the applicant and his claims. The Tribunal is not satisfied that anything happened to the applicant during the three years in which he delayed leaving the country.

7. After three years the applicant claimed that the Awami League came looking for him in Dhaka shortly before March 2013, causing him to flee the country. The Tribunal found it difficult to understand how in circumstances where he claimed there was considerable secrecy surrounding the location of the applicant and his siblings, when they were not even aware of the location of each other, and when he had been constantly relocated and not allowed to leave the house, that the Awami League had located him. According to the applicant the Awami League had been pursuing him for several years because he was a political activist.  As previously set out, the Tribunal is not satisfied from the actual evidence of the applicant that he was an activist or would be considered one by the Awami League. The applicant also was certain that the Awami League wished to kill him and because he witnessed the murder of his father. The Tribunal put to the applicant for comment that if the Awami League had wished to remove all witnesses to his father’s murder it was probable that he would have been killed along with his siblings in September 2010. The applicant could only respond unsatisfactorily that he may have been unconscious and did not know what happened and somehow they could not. The Tribunal is not satisfied that the Awami League pursued the applicant, and had located him in Dhaka.

8. The Tribunal has also considered the claim by the applicant to the delegate that his aunt was visited by the Awami League after his departure. The applicant told the Tribunal that the only member of his family with whom he has contact was his mother, not his aunt. In contrast to his evidence to the delegate, the applicant claimed that since he had left Bangladesh that on and off the Awami League keep coming to his home to question his mother and look for him. The last such visit occurring 3 months prior to the Tribunal interview. When the Tribunal put to the applicant that it was difficult to accept that the Awami League was looking for him at his home three years after he had left the country when the Awami League Chairman had in May 2013, written a letter acknowledging that he fled the country. The applicant was unable to satisfactorily explain this contradiction. Due to the inconsistencies in his evidence, and the overall concerns about his credibility and his profile, the Tribunal does not accept the claim that the Awami League continue to search for the applicant.

9. The Tribunal also considered the claims by the applicant that his brothers were in hiding in Bangladesh and being pursued by the Awami League. To the Tribunal the applicant claimed that he had had no contact with any of his brother since September 2010 and could not account for their whereabouts. Although he had contact with his mother the applicant claimed that this was not something that he discussed. The Tribunal considered it unusual that he would not be interested in the whereabouts of his brothers, particularly when he claimed he followed their lead in his work and political activities prior to September 2010. The Tribunal also put to the applicant information pursuant to s.424AA of the Act for comment that in his entry interview he claimed to have contact with his younger brother. The applicant repeated his assertion that he was not in the right frame of mind at his entry interview. He did acknowledge that he was more balanced when he provided instructions to his agent in July 2013 to lodge his claim for protection, yet could not account for the information provided that one of his brothers, [had] been killed. The applicant was also unable to satisfactorily explain why his younger brother was required to go into hiding when the applicant claimed his brother fled the house with his mother the day his father was killed.  When considered with the overall concerns of the Tribunal about the applicant’s credibility, due to the inconsistencies the Tribunal is not satisfied that the applicant’s brothers are being pursued by the Awami League. 

10. The consideration of the applicant’s claims requires and assessment of the credibility of the applicant as a witness. When assessing credibility, the Tribunal is mindful that it must be sensitive to the difficulties facing refugee applicants and that they should be given the benefit of the doubt when generally credible but unable to substantiate all claims. It is mindful of the circumstances in which initial Entry Interviews take place. However the Tribunal is not required to accept uncritically any and all allegations made by the applicant. In addition the Tribunal is not required to have rebutting evidence before it finds that a particular fact or assertion has not been made out. The Tribunal has had regard to the Guidelines on the Assessment of Credibility on Protection Visa Cases and taking these matters into consideration the Tribunal found that the above concerns about the applicant’s evidence were so significant that it is not satisfied that the applicant has provided a credible account of his experiences in Bangladesh. The Tribunal is prepared to accept that the applicant may hold a political opinion favourable toward the BNP, that his family supported the BNP and that his father was a member. However due to the concerns about the inconsistencies in the applicant’s evidence,  the omissions, the lack of detail, and supporting information and the overall concerns about  his credibility, the Tribunal is not satisfied that his father was a [senior member] of the BNP. The Tribunal accepts that his family may have received some taunts and even threats by Awami League supporters in his village however it is not accepted that an incident occurred [in] September 2010 when the applicant’s family was attacked in his home by 10-15 armed Awami League supporters and that his father was murdered. Due to the concerns set out above with respect to the applicant’s evidence in relation to this incident, the Tribunal does not accept that the applicant was beaten and received a gunshot wound or that his brothers were injured. As the Tribunal does not accept that the applicant witnessed the murder of his father [in] September 2010, or that he has a profile of a political activist, or even the profile of a family member of a political activist. It is not accepted that the Awami League have pursued the applicant for this reason. It is not accepted that they Awami League or their supporters have made enquiries from his mother or aunt at any time. The Tribunal is therefore not satisfied that the Awami League have continued to search of the applicant at his home and pursued the applicant to Dhaka in 2013 and it was fear of harm at the hands of the Awami League, or the Bangladeshi authorities or anyone else that motivated the applicant to leave Bangladesh.

11. As the Tribunal has accepted that the applicant was a supporter of the BNP and his father was a member, it has had regard to the country information regarding the position for supporters in Bangladesh including the most recent assessment produced by DFAT on Bangladesh in October 2014. It is noted that 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. [4] Having considered the claims of the applicant and the findings of the Tribunal against this background the Tribunal considers that the risk of harm to the applicant as a BNP supporter and having relatives as members of the BNP  is remote were he to return to Bangladesh now or in reasonably foreseeable future.

    [4] DFAT Country Report – Bangladesh, 24 October 2014 at 3.55

12. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution on the basis of his actual or imputed political opinion or for any other Convention reason should he return to Bangladesh, now or in the reasonably foreseeable future, and the Tribunal is not satisfied that he is a refugee.

    Complementary Protection

13. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).

14. The Tribunal has found that critical aspects of the applicant’s claims were not credible. The Tribunal does not accept that his father was [a senior member] of [Union Parishad 1] or that the applicant was a political activist. It is not accepted that his family was harassed and tortured by the Awami League or that his fathered was murders by the Awami League in an attack at his home [in] September 2010, or that the applicant was shot, beaten and his brothers also injured. The Tribunal does not accept that the applicant was forced to flee to Dhaka, or that the Awami League was searching for him while he remained in Bangladesh. It is not accepted that his mother was harassed and beaten by the Awami League or that his brothers are in hiding and also being pursued due to the family’s political profile.

15. The Tribunal accepts that the applicant may support the BNP but does not accept the applicant was of adverse interest to the Awami League or its members or supporters at the time he left Bangladesh. The Tribunal does not accept the applicant was or is of adverse interest to anyone in Bangladesh.

16. Having considered the applicant’s circumstances individually and cumulatively, for the reasons set out above, 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 the applicant will suffer significant harm.

    Conclusion

17. 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).

18. 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).

1. 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

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

   Penelope Hunter
   Member