1418373 (Refugee)

[2016] AATA 3607

1418373 (Refugee) [2016] AATA 3607 (21 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1418373

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Tania Flood

DATE:21 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 21 March 2016 at 15.28pm

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, applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] November 2014.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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’).

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.

   The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Bangladesh for a Convention reason or alternatively whether there are substantial grounds for believing there is a real risk he will suffer significant harm if removed from Australia to Bangladesh. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Summary of claims

9. In an entry interview conducted [in] May 2013 the applicant provided the following information:

10. He had a [business] in [location]. 

11. He was a follower of Jamat-e-Islam.

12. In June 2010 Awami League members came to his [business] and hit him on the head and beat him up badly.  He has a [scar].

13. In August 2011 Awami League members extorted [amount] taka from him because he does not follow the Awami League and they don’t like what he is doing.

14. In December 2012 about 10-15 people vandalised his shop and threatened to kill him.  He was the cashier and they said he would be killed so he left immediately.  He escaped and ran away to Dhaka.

15. He told his [sibling] to sell the shop.

16. His brother, [Mr A] is also involved with Jamat-e-Islam though not full-time.  Sometimes he works for the party, other times he just follows the party.

17. He focused most of his time on the business and the main reason they chased him was to get money.  When they asked for payment they would start a fight.

18. In a statement attached to his application for a Protection visa the applicant claims the following:

19. He is Bangladeshi and a Sunni Muslim.  He lived in a village called [Village 1] but moved from his village to Dhaka in 2001 until 2007 for work and returned in 2008 to run a [business].

20. He has been a supporter of Jamat-e-Islam since his school days.  He supported the party because it is an Islamic party and supports the rights of Muslims.  He has attended some meetings of the party.

21. One evening in 2010 approximately eight or nine motorcycle riding members of the Awami League attacked him while walking home from his [business].  They hit him on the head from which he has a scar.  He was knocked unconscious and woke up in the hospital where he remained for five days. Thereafter he continued operating his [business]. 

22. In 2011 members of the Awami League extorted money from him because he did not support them. He paid [amount] taka and continued with his business. 

23. In 2012 approximately 10-15 members of the Awami League came to look for him at his [business].  He became frightened when he saw they were armed and ran away.  The men vandalised his [business].

24. Thereafter he went into hiding for three months and 10 days in Dhaka.  He told his brother to sell the [business].  Because he was scared he decided to leave Bangladesh in April.

25. He fears he will be seriously harmed or killed by members of the Awami League because he does not support them and does not want to work with them. 

26. He has been targeted because he is perceived to be wealthy and because he supports the opposition party.

27. His family told him the Awami League members have been asking about his whereabouts.

28. The authorities in Bangladesh cannot or will not protect him because they have to listen to what the government says.  His [other] brother is also in hiding because of his involvement with Jamat-e-Islam.

29. He cannot leave his village and if he moves to another place they will find him.  It is difficult to relocate because he has to establish new networks.

    Findings and reasons

    Country of reference

30. The applicant has consistently claimed to be [name], born on [date] in [Village 1], [District], Chittagong Division, Bangladesh.  At the Protection visa interview with the Delegate and before the Tribunal the applicant spoke in the Bengali language which is the principle language spoken in Bangladesh.  There are no translated identity documents before the Tribunal to this effect but in the absence of any evidence to the contrary, the Tribunal accepts the applicant’s identity is as claimed.  The applicant stated at hearing that he does not have citizenship of any other country or the right to enter and reside in any other country.  The Tribunal accepts that Bangladesh is the applicant’s country of nationality for the purposes of the Convention and also the receiving country for the purposes s.36(2)(aa) of the Act.

31. During the hearing the Tribunal discussed with the applicant his background, education, family composition and past employment, as well as the reasons he left Bangladesh and his fears of returning.  The applicant’s responses to questions at hearing were given without hesitation and were generally consistent with his written and oral claims to the Delegate.  The Tribunal has found no reason to doubt his evidence.  The Tribunal finds the applicant to be a credible witness.

    Support for Jamat-e-Islami (JI)

32. Regarding his claimed support for JI, the applicant stated at hearing that he has been associated with JI since his school days but was only ever a supporter or the party, not a member.  He said that he sometimes attended meetings but wasn’t actively involved in any activities during the years he lived in Dhaka from 2001 to 2007. Since his school days he said he would have attended about thirty meetings in total.  Noting that the applicant is now [age] years of age and has been involved with JI since his school days, the Tribunal put it to the applicant that his attendance at meetings was relatively infrequent and he agreed.

33. When questioned about his knowledge of the party and reasons for supporting JI the applicant spoke in very general terms about JI being an Islamic party.  He was unable to expand on any party platforms or policy although demonstrated knowledge of JI’s political alliances.  In this respect the Tribunal notes the applicant once voted for JI in general elections and thereafter lent his support to JI’s political allay, the BNP.

34. Regarding the likelihood of future political involvement the applicant confirmed he has had no contact or involvement with JI since leaving Bangladesh.  However, he said he would continue his support for JI on return to Bangladesh.  He agreed this would be at the same level as his prior activity. 

35. In considering the applicant’s responses, the Tribunal accepts the applicant is a supporter of JI, albeit at a very low level, having attended meetings irregularly in the past.  The Tribunal also accepts the applicant would likely resume the same level of support for JI if he returns to Bangladesh in the future.

    Claimed past harm from Awami League members and supporters

36. The applicant has consistently claimed in his written and oral evidence to have experienced harm from Awami League members or supporters on three separate occasions between 2010 and 2012 in [Village 1].  Specifically he claims that in 2010 he was physically attacked and struck on the head at his [business]; in 2011 he was forced to pay [amount] taka to continue running his business and in 2012 he narrowly escaped being physically harmed again but his business premises were vandalised and he was subsequently forced to close the business.   The applicant claims that Awami League members were responsible for all three incidents.

37. The Tribunal put it to the applicant that it was difficult to understand why he would have been attacked in this way for political reasons given his low level of support for JI.  The applicant responded that his [business] was frequented by JI supporters and it was known that he was a JI supporter too.  Further, he said that as a business owner he was in a position to succumb to extortion attempts.  When it was suggested that the reason for the harm could have been financial gain and not due to his political affiliations the applicant stated that when he was assaulted in 2010 his attackers were saying such things as “get the supporter of JI”.

38. When asked whether the police had been called on any of those occasions the applicant stated that the police reportedly came to the [business] when it was being vandalised but he was not there as he ran away.  Further, he said that the police do not help JI supporters, only Awami League people. 

39. When asked if anything further happened to him he said that he left for Dhaka after the third incident where he remained until he left the country.

40. Given the consistency of his evidence, the Tribunal is prepared to accept that the applicant was attacked on these occasions as claimed.  In view of the low level of his political involvement the Tribunal has reservations about the motive for these attacks but as the Tribunal finds the applicant to be a credible witness it is prepared to extend him the benefit of the doubt and accepts, based on his claim of what was said to him on the occasion he was attacked in 2010, that his support for JI was the essential and significant reason for the harm suffered.

    The applicant’s brothers

41. In his written claims the applicant states that his brother, [Mr A], is also a supporter of JI and lives in hiding because of his involvement with JI.  At hearing the applicant stated that [his brothers] support JI and live in Chittagong.  When asked why they moved to Chittagong the applicant said they moved there to work and as they too would have political problems if they remained in [Village 1].  He said they only return to the village for holidays.  When asked about their political involvement in Chittagong the applicant stated he is unaware of their activities.

42. Considering the applicant’s brothers freely return to [Village 1] for holidays the Tribunal is not persuaded that they are living in hiding, fear living in [Village 1] or that their political support or involvement is the principal reason for their departure to Chittagong.  The Tribunal does not accept the applicant has anything to fear on return to his village for reason of his brothers’ political opinions and activities.

43. The Tribunal notes that the applicant departed [Village 1], where his business was located, in late 2012 and spent approximately three months residing in Dhaka before departing Bangladesh.  When asked what he was doing during those three months the applicant said that he stayed at his [relative’s] house and didn’t go out.  He confirmed that nothing happened to him during those months but said this is because nobody knew where to find him.  He said that nobody approached his family in [Village 1] because only [certain members] remained at home.  When asked earlier in the hearing if his family in [Village 1] are currently experiencing any difficulty he said they have reported no problems.

44. Based on his oral account of the situation the Tribunal does not believe that the members of the Awami League who previously attacked him are currently maintaining an interest in his whereabouts some three years after the last incident. However, in view of these past incidents and the fact that the applicant’s political affiliations are known to certain Awami League members in his local area and he is likely to resume the same level of support for JI on return, the Tribunal is prepared to accept there is a chance, which is not remote, that he could encounter similar difficulties from Awami League supporters again on return to his local area. 

    State protection

45. Human Rights Watch[1] in their 29 January 2015 report detail in part that the Awami League are responsible for much of the political violence in Bangladesh as well as the opposition parties and that a government crackdown has resulted in hundreds of arrests of opposition members.  There are ongoing reports of BNP and other opposition group members and activists being killed and disappearing.  The UK Home Office[2] Report of February 2015 notes that “high levels of politically motivated violence are perpetrated by the security forces and both opposition and government supporters”.  A recent report by Odhikar[3] details in part police using torture and ill-treatment of detainees on remand and extrajudicial killing.

    [1] Human Rights Watch, World Report 2015, Bangladesh, 29 January 2015

    [2] UK Home Office, Country Information and Guidance, Bangladesh: Opposition to the government, February 2015

    [3] Odhikar, Human Rights Monitoring Report, July 1 to 31 2015

46. A further UK Home Office report of November 2014[4] summarises that depending on the profile of a person, the ability to access effective protection from the state of Bangladesh may be limited due to a poorly resourced, overburdened, inefficient police force and endemic corruption.  Further it is reported that some members of the security forces reportedly commit serious abuses, including torture, with impunity and members of religious minorities, political opponents and women are often victims of these abuses.

    [4] UK Home Office, Bangladesh:  Background information, including actors of protection, and internal relocation, November 2014

47. DFAT’s Country Report on Bangladesh[5] notes that the current Awami League government has restricted the activities of the BNP, JI and other pro-Islamist groups including arresting and detaining their leaders and high profile members. 

    [5] DFAT Country Report, Bangladesh, 20 October 2014

48. In view of this information and the prevailing government attitude to JI, the Tribunal is not satisfied the applicant could access adequate protection from the State authorities against future harm, due to the political affiliations of the people who wish to harm him. 

    Relocation

49. As the Tribunal accepts there is a real chance or risk the applicant could face serious or significant harm on return to his local area for reason of his political involvement consideration has been given as to whether the applicant can safely and reasonably relocate to another area in Bangladesh.  Specifically, the Tribunal has considered whether the applicant can relocate to Dhaka to avoid any risk of persecution in his local area.

50. As noted above, the Tribunal accepts the applicant would not engage in any political activities beyond the level of his past involvement if he returns to Bangladesh in the future.  Notwithstanding this, the Tribunal notes that the applicant’s past political activity was restricted to his local area as he effectively refrained from any political involvement during the years he lived and worked in Dhaka (from 2001 to 2007) which the Tribunal notes to be a significant period of time.  The Tribunal accepts that this is because the applicant, as claimed, was busy working.  The Tribunal has no reason to believe the applicant would resume an accelerated level of political involvement if he resumed a similar life in Dhaka and even if he did continue his support for JI in the manner he did in his local area, the Tribunal is satisfied that this would entail nothing other than attending meetings irregularly as an ordinary supporter.  The Tribunal is satisfied that this level of political involvement would not draw any adverse attention from the authorities such that he would be at risk of any serious or significant harm. 

51. In this respect, the Tribunal notes the above reporting by DFAT that certain JI leaders and high profile activists have reportedly been arrested and detained by the Awami League government in recent times.  However, DFAT’s advice also indicates that supporters or members of opposition parties are not at risk of being arrested or living in fear of violence on a day-to-day basis due to their political affiliations.  Rather, it is assessed that opposition leaders or members with high profiles are more likely to be at risk of arrest, detention or other serious harm.  This view is supported by the UK Home Office which indicates that a person’s political profile is relevant to an assessment of the level of risk they face due to their political opinion. 

52. When this information was put to the applicant at hearing he responded that only matters affecting senior people are reported but that ordinary supporters are also killed every day.  He said that if he returns he will have to connect with JI and continue his support and this will mean he is at risk of being harmed.  Further, he said that his attackers from the past will find out he has returned and they will kill him.  He said they have a political network everywhere.  As noted earlier the Tribunal is not satisfied that the people who attacked him three years ago are motivated to continually search for him with a view to harming him.  When these events occurred they did not approach his family home looking for him during the three months he was residing in Dhaka nor is his family currently reporting any such activity.

1. The applicant also stated that if he returns to Bangladesh he will have to go back to his village on occasion and he won’t be safe there.  The Tribunal put it to the applicant that this appears an unlikely thing to do given his claims to fear serious or significant harm in that location.

2. The Tribunal has considered the applicant’s responses but is satisfied that the applicant is not a person with a high political profile or a person who will assume a high political profile if he returns to Dhaka.  In addition, the Tribunal notes that the applicant managed to live safely in Dhaka for approximately six years from 2001 to 2007 as a JI supporter without encountering any serious or significant harm for reason of his political opinion.  Based on the Tribunal’s assessment of his level of political involvement, and in view of the country information referenced herein, the Tribunal is satisfied that the applicant could safely relocate to Dhaka without risk of being harmed for reason of his political opinion or involvement.

3. As to whether it is reasonable to expect the applicant to relocate to Dhaka the applicant claims that it will be difficult to relocate because he will have to establish new networks. The Tribunal raised this issue at hearing referring to the fact he managed to live and work in Dhaka previously for approximately six years.  In addition, the applicant managed to travel to Australia and to establish himself in employment here without any prior networks to rely upon.  Further, the Tribunal pointed out that he has business experience to call upon to re-establish himself in either paid or self-employment on return. 

4. In response to the above, the applicant reiterated his concerns for his safety. As noted above the Tribunal is satisfied the applicant will not face any serious or significant harm in Dhaka for reason of his political opinion.  Further, the applicant has previously demonstrated his ability to live in Dhaka for six years from 2001-2007 and again for three months before departing Bangladesh in 2013 without encountering any harm or threat to his safety for reason of his political opinion or for any other reason. As the applicant has raised no other concerns about his ability to live safely in Dhaka the Tribunal considers he would be able to do so again if he returns to Dhaka now or in the reasonably foreseeable future.  

5. The Tribunal acknowledges that the applicant stated at hearing he would have to return to his village on occasion if he went back to Bangladesh.  In the Tribunal’s view, the applicant presented no compelling reason for having to do so other than to visit his family from time to time.  As noted at hearing, the Tribunal finds it implausible the applicant would place himself at risk of harm for this reason when it would be possible for his family to visit him in Dhaka or for them to meet elsewhere in Bangladesh.  Further, the Tribunal notes that the applicant is willing to remain in Australia indefinitely thereby eliminating any possibility of visiting his family back in the village.  For these reasons, the Tribunal considers it reasonable for the applicant to relocate to, and remain in Dhaka if he returns to Bangladesh.

6. Having carefully considered the applicants claims and his responses at hearing, the Tribunal finds that the applicant could safely relocate to Dhaka where there is no real chance of him suffering any serious harm.  Further, the Tribunal considers it would be reasonable to expect him to do so in the circumstances.  Accordingly, the Tribunal finds there is no real chance the applicant will suffer any serious harm if he returns to Bangladesh, now or in the reasonably foreseeable future. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

7. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated, the Tribunal considers it safe and reasonable for the applicant to relocate to Dhaka where there would not be a real risk that he will suffer significant harm.    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 he will suffer significant harm for the reasons claimed or for any other reason. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

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

   DECISION

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

   Tania Flood
   Member