1419387 (Refugee)

[2016] AATA 4234

1419387 (Refugee) [2016] AATA 4234 (2 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419387

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Bruce Henry

DATE:2 August 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 02 August 2016 at 10:17am

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] August 2013 and the delegate refused to grant the visa [in] October 2014.

3. The applicant appeared before the Tribunal on 21 January 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 of 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 (the Department)[1] 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.

   [1] The relevant guidelines are found in the Departmental policy manual, PAM3 Refugee and humanitarian, entitled Complementary Protection Guidelines and Refugee Law Guidelines

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

   Background

10. The application and the applicant's written claims are on the departmental file which is before the Tribunal. The applicant attended an interview at the Department [in] October 2014, and a recording of the interview is located on the departmental file. No further claims or submissions have been received by the Tribunal during the course of the review.

11. In his application the applicant claimed to be a Bengali and a Sunni Muslim from Comilla province in Bangladesh. He claims to be a Bangladeshi citizen, and the Department accepted that claim for the purposes of the application based on the available identity documentation.

12. The applicant’s claims were set out in a statutory declaration dated [in] August 2013 that accompanied the application, in which he said (errors in original):

    End 2003: Extorted for money

    3. On around the end of 2003, I was working at a [workplace] during the day as [occupation]. There were about [number] others regular employees [at the workplace], and I was their supervisor.

    4. I returned home one day in the evening, and my parents advised me that three men had come to our home and asked for me. These told my parents that I should go to the Bazaar looking for them once I returned home. My parents told me that one of the men was '[Mr A]', who was notorious for extorting people in our village for money.

    5. When my parents told me about this encounter, I knew that these men would be after money. I went to the bazaar to meet [Mr A] and his associates as I felt that I had no choice.

    6. The men took me to the side of the Bazaar and I gave them [amount] Taka. [Mr A] is also a known member of the Bangladesh Nationalist Party ("BNP") in my village.

    End 2009: [Mr A] returns for more money

    7.On around the end of 2009, I was on the way home from work when I received a phone call from one of my friends. He told me that [Mr A] and some of his associates were coming for me.

    8.When I returned home, my mother told me that [Mr A] and his associates had already been to our home looking for me. My mother advised me that they demanded [amount] million Take from me. I was afraid that if I did not pay them this money, then they would kill me. I knew some men in my village that had been killed by [Mr A] and his associates.

    9.I left our [home] immediately to [Dhaka] to flee from these men. My [Relative 1] allowed me to stay at her home there. After I explained this situation to my [Relative 1], she advised that it would be safer for me to leave the country rather than being tortured by these men.

    10.In Dhaka, my friend arranged for me to leave to [Country 1]. I later reimbursed him for his expenses.

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

    The applicant's written claims are on Department of Immigration and Border Protection (department) file ... The applicant attended an interview before me [in] October 2014.

    The applicant's written claims are summarised below:

    ·In 2003 the applicant was working as [occupation], supervising between [number] and [number] people. While working as a supervisor he earned approximately [amount] - [amount] taka a month.

    ·After work one day in 2003 a man named [Mr A], who was a known member of the Bangladesh National Party (BNP), extorted the applicant for [amount] taka.

    ·In 2009 the applicant was told by his family that [Mr A] was again trying to extort him, although this time [Mr A] wanted [amount] million taka.

    ·The applicant was afraid that if he didn't give [Mr A] the money he would be killed, as [Mr A] had killed other people in the village.

    ·The applicant left [his home] to stay with his [Relative 1] in [Dhaka].

    ·His [Relative 1] advised him that it would be safer if he left the country, and with the
    help of a friend he travelled to [Country 1] where he lived from 2009 to 2013.

    ·The applicant fears that he will be detained and tortured, extorted, abused and killed.

    ·The applicant fears that if he returns to Bangladesh he will be harmed by the Bangladeshi authorities and [Mr A].

    ·The applicant fears that this harm will be due to his membership of the particular social group (PSG) 'villagers making a decent income, making us vulnerable for extortion'.

    ·The applicant fears the authorities and claims they will not protect him.

    During the interview the applicant made similar claims. However the applicant made a number of additional claims which are outlined below:

    ·[Mr A] extorted the applicant three or four times in 2003, for approximately [amount] taka, which he paid twice. [Mr A] said that if the applicant did not pay, the applicant would be killed.

    ·Between 2003 and 2009 sometimes [Mr A] 'would appear and he used to make threats'.

    ·The murders [Mr A] committed were not publicised in the newspapers, but they were reported to the police. As a consequence [Mr A] was arrested, but was later released.

    ·Since the applicant arrived in Australia, [Mr A] has been arrested by the [authorities].

    ·The applicant is afraid of extortion by 'all the various [political] parties, the Awami League (AL) and BNP'.

    ·The applicant cannot move to another part of Bangladesh because [Mr A], or [Mr A]'s friends, will find him.

14. In discussing the applicant’s claims about extortion in Bangladesh the delegate said:

    Extortion by [Mr A]

    The applicant claims that a man named [Mr A] extorted him in 2003 for [amount] taka and that he paid that money. The applicant claims that in 2009 he was approached by [Mr A] asking for [amount] lakh ([amount] million) taka. The applicant claims that [Mr A] was a member of the BNP. When asked why he thought [Mr A]'s membership in the BNP was relevant to his case the applicant stated 'there is no connection'. The applicant claims that between 2003 and 2009 [Mr A] would approach him and threaten to kill him if he did not pay any money and that he paid [Mr A] one more time after 2003.

    Country information states that extortion is commonplace in Bangladesh, that members of whichever political party are in office (either the AL or BNP) have a level of impunity and that both the AL and BNP maintain links to criminal networks. As such I accept that [Mr A] was a member of the BNP in 2003 and extorted the applicant for [amount] taka. I further accept that because of his membership in the BNP he may have had impunity from the police, and may have extorted the applicant once more after 2003. However, the BNP lost the national election in 2008 to the AL. The applicant claims that [Mr A] has previously been arrested in relation to the deaths of men in his village, and further claims that [Mr A] has been arrested since May 2013 by the [authorities]. While country information states that while members of the ruling political party can behave with impunity, I can find no country information stating that members of opposition parties possess the same impunity. Given [Mr A] belongs to the BNP, who are not currently in power, I accept the applicant's statements that [Mr A] has been arrested twice, and that one of these arrests was conducted by the [authorities].

    The applicant claims that the last time [Mr A] tried to extort him was in 2009. The applicant claims that he heard from both a friend and his parents that [Mr A] was looking for him, and wanted [amount] million taka. The applicant claims that when he heard this, he travelled immediately to Dhaka and stayed with his [Relative 1] for a week before travelling to [Country 1]. While I have concerns about whether [Mr A] genuinely tried to extort the applicant in 2009, especially given the applicant had no direct contact with [Mr A], I am willing to extend the applicant the benefit of the doubt and accept that this event occurred. When the applicant was asked why he did not approach the police, the applicant stated that he 'didn't have the time to go to the police'. I do not accept that the applicant was so rushed for time that he was not able to go to the police, especially as [Mr A] had been arrested before this event.

    Findings of fact

    Following consideration of the information provided by the applicant and relevant country information I accept that:

    ·     The applicant worked as a supervisor in [an] industry.

    ·     The applicant was extorted by [Mr A] in 2003 and 2009.

    ·     [Mr A] was a member of the BNP.

    ·     The applicant left Bangladesh in 2009.

    ·     Since the BNP lost the 2008 elections, [Mr A] has been arrested twice. One of these arrests was carried out by the [authorities] and occurred after the applicant arrived in Australia in 2013.

15. No additional submissions or information were provided during the course of the review. At the hearing the applicant gave the Tribunal a copy of a ‘Certificate’ dated [January] 2016 purportedly signed by three men from his home village which said (errors in original):

    [The applicant] by profession-[occupation], is well known to me, He has been conduction [Business] enjoying reputation. Out of Jealousy, some persons, demanded him to huse maney only, otherwise they kill him. Subsequently there were attempts of taking his life for more than once. Due to fear of his life he lest the country for abroad and thereby could save his life. The country for abroad and thereby could save his life. If he comes back home, there is very apprehension of losing his life in future.

    So far as we know, he did not take part in any activity subversive of the state or of discipline.

    He bears a good moral Character. We wish him every success in life.

    Evidence at the hearing

16. During the hearing the Tribunal discussed with the applicant his background, education, family composition and employment in Bangladesh, as well as the reasons he left Bangladesh and his fears of returning. 

17. The applicant said that his family had a small farm in their village in Bangladesh. He said that he finished school after [number] years, when he was about [age] years of age. He worked for a while with his father on the farm, then began doing ‘odd jobs’ working as [occupation]. He said that he started to work as a supervisor [when] he was [age], and when he was [age] began to [supply] [workers] as [occupation to other workplaces]. He worked mainly in his home village, but also supplied workers to [workplaces] [number]-[number] miles from his village.

18. The applicant said that he worked in this way until 2009 when he left Bangladesh and travelled to [Country 1]. He said that he left because money was being demanded of him by members of political parties, sometimes the BNP and sometimes the Awami League. The Tribunal asked him whether he paid money when it was demanded, and he said that he had paid once, when he paid [amount] taka to a local BNP member, [Mr A]. The Tribunal asked when he had paid this money to [Mr A]. He initially said he couldn’t remember, but when the Tribunal pointed out that in his statutory declaration and at his interview with the Department he had said that this payment was made in 2003, he said that was ‘maybe true’.

19. The applicant said that he paid this money to [Mr A] at the local market. The Tribunal asked again whether that was the only occasion on which he had paid money in response to a demand, and he said that it was.

20. The Tribunal asked whether he had any other problems in the six years between this incident and his departure from Bangladesh in 2009, and he said that once he had paid the money to [Mr A] other demands were made of him by both the BNP and the Awami League. The Tribunal asked whether he knew the identity of the people making these demands, and he said that he did not, but he knew that they were party members of the BNP or the Awami League.

21. The applicant then said that he had been beaten up several times by members of the BNP. The Tribunal asked when this had occurred, and the applicant said that he could not remember. The Tribunal asked why he had not mentioned this before, either in his statutory declaration or at his interview with the Department, and he said that he could not remember why he had not mentioned it. The Tribunal put to him that he had referred in his statutory declaration to an incident in 2003 when he paid money to [Mr A], and said that in 2009 he was told that [Mr A] was looking for him, but had made no reference to any incidents between 2003 and 2009. He said that his statutory declaration was correct.

22. The Tribunal then put the claims made by the applicant at his interview with the Department, as set out in the delegate’s decision record, that [Mr A] had extorted money from him three or four times in 2003, and again between 2003 and 2009. He said that these claims were correct.

23. The Tribunal asked the applicant again why he had not previously mentioned being beaten by members of the BNP, and he said that he did not mention it because he forgot.

24. The Tribunal again asked the applicant whether he had paid money to [Mr A] only once, and he said that was correct. The Tribunal asked whether the demands made after this payment in 2003 were made by [Mr A], and he said that they were not, they were made by other BNP members whose names he did not know. He repeated that he did not pay any further money in response to these demands.

25. The Tribunal asked whether anything happened to the applicant when he failed to pay in response to these later demands. He said that nothing happened because he fled to Dhaka and then to [Country 1]. The Tribunal asked whether he was referring to the events that he claimed happened in 2009, and he said that he was. The Tribunal asked why nothing had happened to him between 2003 and 2009, and he said that he kept asking for extensions of time to pay, and then he ran away to Dhaka.

26. The Tribunal again asked the applicant whether anything happened to him when he failed to pay money demanded from him in the period from 2003 to 2009. He again said that nothing happened to him because he escaped and went to [Country 1].

27. The applicant then said that someone from the Awami League had visited his parent’s home in 2009 and threatened his life, and that this was why he had to leave Bangladesh. The Tribunal asked whether he had mentioned this to the Department, and he said that he had not, because he had problems with his memory. The Tribunal put to him that in his statutory declaration he had said that [Mr A] had been to his home and threatened his life in 2009. He said that this was true, it was [Mr A] who had made the threats against his life, not the Awami League.

28. The applicant then said that he had paid [Mr A] only once, in 2003, and that he had not seen him again. The only other contact from [Mr A] came in 2009 when he made the threats to the applicant’s parents. The Tribunal asked him why he had told the Department that he had paid [Mr A] twice, and he said that he could not remember what he had said at the departmental interview.

29. The Tribunal asked the applicant whether he had told the Department that [Mr A] had been arrested by the [authorities], and he said that he had, but it is possible that [Mr A] may have been released now. The Tribunal asked whether he had any information about this, and he said that he did not and that he had not asked about it.

30. The Tribunal asked the applicant what he thought would happen if he returned to Bangladesh, and he replied that he may be beaten up or assassinated because he can’t pay extortion money. The Tribunal pointed out that his own evidence was that he had not paid any such money since 2003, but had lived in Bangladesh until 2009. He said that this was because he had left his village and gone to another place. The Tribunal then asked whether the information in his application that he had continued to live with his parents in his home village until his departure from Bangladesh was correct, and he said that it was, but again said that he had escaped harm by living in different places.

1. The Tribunal put to the applicant that he claimed to have paid protection money once, in 2003, to [Mr A]. Since that time he lived in Bangladesh for another 6 years, and in [Country 1] for 4 years, [Mr A] has been arrested, and the BNP is no longer in power. The Tribunal asked him what he feared on return to Bangladesh in light of this information. He responded that he fears BNP party members and [Mr A], as the government does not provide any security. He said that although he lived in Bangladesh for 6 years after 2003, he was ‘always on the run’. The Tribunal pointed out that he had said in his application that he had lived in his home village until he left Bangladesh in 2009. He agreed that this was correct, but said that he had to live in different places. The Tribunal pointed out that he had said in his statutory declaration that [Mr A] and his associates had been looking for him at his home where he lived with his parents in 2009 and that this was when he left his home and his village. He agreed that this was correct, and that he had lived at home until 2009.

   Assessment of claims

2. In determining whether an applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the applicant’s claims. This requires an assessment of the applicant’s credibility and a consideration of the relevant country information available to the Tribunal. The country information on which the Tribunal has relied is attached to this decision.

3. The Tribunal is satisfied on the basis of the country information set out in the attachment that political activists and members of both the BNP and the Awami League have been victims of political violence in Bangladesh in recent years and that these problems continue to plague the country. However, the applicant has made no claim to have been a member of any political party or to have been active in politics in Bangladesh. As noted above, he told the Tribunal he did not know who was in power in Bangladesh after the last election, and did not know what happened in the election because he was not involved with any party.

4. The Tribunal also accepts on the basis of the country information that non-partisan individuals such as the applicant have been targeted for extortion in some circumstances. It has therefore considered the applicant’s claims in the light of this information.

5. In assessing the applicant’s claims, the Tribunal is not required to accept uncritically any or all allegations made by him: MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.

6. The Tribunal considers that there are serious inconsistencies in the evidence the applicant has provided in writing and at interview to the Department, which are referred to in the decision record that was provided by the applicant to the Tribunal, and his evidence at the hearing about importance aspects of his claims.

7. Significantly, the Tribunal considers the applicant has provided inconsistent information throughout the entire proceedings with respect to the claimed threats made to him by members or supporters of the BNP and the Awami League. While the Tribunal accepts the stress of giving evidence and the passage of time can affect a person’s ability to recall detail the Tribunal does not consider this accounts for the contradictions in the applicant’s claims as to who had demanded money from him, when they had done so, whether he had paid them, whether there were any consequences for his failure to pay after 2003, and whether he had to leave his home to escape these threats. He also made a claim at the hearing that he had been beaten several times by members of the BNP, but was unable to offer any explanation as to why he had not made this claim before other than that he ‘forgot’.

8. In assessing the applicant’s credibility, the Tribunal has, as it is required to do, had regard to the Refugee Law Guidelines, which relevantly state (at section 15.3, references deleted):

   In Sellamuthu, the Federal Court noted that mere “vagueness or inconsistencies in recounting peripheral details” or an inability to give a “precisely accurate or consistent account of some past events” would not be enough for an adverse credibility finding.

   The court also noted that discrepancies that are obviously insignificant and immaterial are insufficient to undermine an applicant’s credibility. Insignificant or peripheral discrepancies are not likely to be material factors.

   Courts are prepared to scrutinise such decisions and decision makers should be careful not to join a series of minor alleged inconsistencies and ambiguities to reject the whole of the applicant’s account. In SZGUR v Minister for Immigration and Citizenship, the RRT’s decision was quashed as its selective use of corroborative evidence created an apprehension of bias in the form of a pre-judgment, that is, “a mind not open to persuasion”.

   In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB, Kirby J (dissenting in the outcome of the case) noted that:

   There is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear. The Tribunal must be firmly told - if necessary by this Court - that the process is one for arriving at the best possible understanding of the facts in an inherently imperfect environment. It is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so.

   Although Kirby J was in the minority in SGLB, the considerations that he outlined have since been discussed in several refugee cases involving credibility concerns. 

   In Sellamuthu, the Federal Court noted that mere “vagueness or inconsistencies in recounting peripheral details” or an inability to give a “precisely accurate or consistent account of some past events” would not be enough for an adverse credibility finding.

   The court also noted that discrepancies that are obviously insignificant and immaterial are insufficient to undermine an applicant’s credibility. Insignificant or peripheral discrepancies are not likely to be material factors.

   Courts are prepared to scrutinise such decisions and decision makers should be careful not to join a series of minor alleged inconsistencies and ambiguities to reject the whole of the applicant’s account. In SZGUR v Minister for Immigration and Citizenship, the RRT’s decision was quashed as its selective use of corroborative evidence created an apprehension of bias in the form of a pre-judgment, that is, “a mind not open to persuasion”.

9. The Tribunal has also had regard to the caution recently expressed by the UNHCR’s Expert Roundtable on Credibility Assessment in Asylum Procedures:

   20. A number of participants at the Roundtable expressed the view that the concepts of “personal credibility” and “general credibility” raise serious concerns with regard to their content as well as their added value in legal terms. While it was acknowledged that a person who lies repeatedly is generally not trusted to tell the truth, it was emphasized that in the asylum context it is important to focus on the credibility of the account provided, and to consider whether there are explanations for inconsistencies, lack of detail or previous accounts that were not accepted as credible.

10. Bearing in mind these principles, the Tribunal put the discrepancies in his claims that are referred to above to the applicant at the hearing, as it considers that these discrepancies reflect poorly on the reliability of his evidence. His responses were unsatisfactory, and the Tribunal considers that the problems with his evidence are not what the Hely J in Sellamuthu described as ‘mere “vagueness or inconsistencies in recounting peripheral details” or an inability to give a “precisely accurate or consistent account of some past events” [2].

    [2] Sellamuthu v Minister for Immigration & Multicultural Affairs [1998] FCA 1423 (11 November 1998) per Hely J. These comments were not affected by the Full Court decision in Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247 to set aside the decision of the Tribunal.

11. Further, the Tribunal does not consider that this is a case where the factors mentioned by His Honour Justice Kirby in SGLB apply to the applicant, or that he has advanced any acceptable explanation for the inconsistencies in his claims. The Tribunal is satisfied that the contradictions and inconsistencies in the applicant’s evidence on issues such as who was seeking to extort money from him, when that occurred, and whether or not he had to leave home to avoid these alleged extortionists have arisen because the claims themselves are untrue.

12. In making that finding, the Tribunal has considered the ‘Certificate’ produced by the applicant at the hearing, but notes that the identities of the three signatories are unclear, and the document appears to go further than the applicant’s own claims in stating that ‘there were attempts of taking his life for more than once’. The Tribunal is satisfied that no weight should be placed on this document as providing corroboration of the applicant’s claims.

13. Accordingly, while the Tribunal accepts that the applicant was a victim of extortion in 2003 by the man identified as [Mr A], the applicant’s own evidence is that [Mr A] was arrested by the [authorities] after the applicant came to Australia. The Tribunal does not accept that he remains a threat to the applicant.

14. The Tribunal is satisfied that the applicant was able to live at home with his parents in safety until he went to [Country 1] in 2009. It does not accept that he was a victim of extortion or that he was beaten or threatened by [Mr A] or by people associated with either the BNP or Awami League after 2003. As noted above, the Tribunal accepts on the basis of the country information that such things occur in Bangladesh, but does not accept the applicant’s claim that they happened to him.

15. In the circumstances, the Tribunal is satisfied that there is not a real chance that the applicant would face persecution as defined in the Act should he return to Bangladesh, whether for his political opinions, whether real or imputed, for his membership of the social group of 'villagers making a decent income, making us vulnerable for extortion', or for any other reason.

16. 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).

17. 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). Given the finding above that the Tribunal does not accept that the applicant faces a real chance of persecution should he return to Bangladesh, the Tribunal is satisfied on the same basis that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.

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

19. 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

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

    Bruce Henry
    Member

    
    

    ATTACHMENT

    Country information

21. The current DFAT report on Bangladesh[3], to which the Tribunal is required to have regard as outlined above, states:

    [3] Department of Foreign Affairs and Trade (DFAT) DFAT Country Report Bangladesh, 5 July 2016

    3.43 The Awami League (AL) and Bangladesh Nationalist Party (BNP) have dominated politics for most of Bangladesh’s history. The AL is considered broadly liberal, secular and pro-Indian, while the BNP is viewed as conservative and anti-Indian, and places greater emphasis on Islam. However, both parties have compromised these ideologies for the sake of political expediency. The relationship between the AL and the BNP is characterised by longstanding enmity and personal rivalry between the parties’ leaders, Sheikh Hasina (AL) and Khaleda Zia (BNP). These factors have led both parties to approach politics in a confrontational, ‘winner-takes-all’ manner.

    3.44 The AL’s current term in Government has seen a further contraction in Bangladesh’s political space, with the Government restricting the activities of opposition party members, human rights defenders and journalists in an effort to cement its control over politics. These actions have eroded the AL’s political legitimacy while also inciting a violent response and election boycotts by the BNP, undermining its image as a credible alternative.

    3.45 In May 2016, the Asia Foundation published the findings of a survey on the attitudes of Bangladeshis towards democracy. The poll found that interest in politics was low and decreasing, and that political tolerance and freedom of speech had declined significantly since 2006, suggesting increasing political polarisation in Bangladesh. A third of respondents stated that they did not feel free to express their political opinions; a third said they would be unwilling to allow other political parties to hold meetings in their area; and almost a fifth stated they would end a friendship with an individual who joined a rival political party. …

    3.57 DFAT assesses that under the current AL Government BNP leaders and JI members are subjected to a high level of official discrimination during periods of heightened political tension, particularly national elections. JCD and ICS members are subjected to a moderate level of harassment from members of the Chattra League. BNP supporters or members in rural areas are subjected to a low level of violence associated with AL extortion.

    Politically Motivated Violence

    3.58 Most inter-party violence (AL versus BNP) occurs during periods of heightened political unrest, particularly during national elections and hartals (strikes). JI-led anti-ICT protests have also resulted in violence, although these protests have been less violent and have garnered less support since 2013. Credible sources have told DFAT that inter-party violence is most prevalent outside Dhaka, particularly in northwest and southeast Bangladesh.

    3.59 National elections in January 2014 were the most violent in Bangladesh’s history, with months of violence leaving hundreds dead and injured across the country. This violence resurfaced in 2015 following the AL’s decision to forcibly confine Khaleda Zia to her party office in Dhaka on 3 January in anticipation of BNP protests marking the anniversary of the 2014 polls. The BNP responded by implementing a nation-wide transport blockade, during which BNP and AL supporters, including violent elements of their student and labour wings, clashed. Local government and council elections on 28 April 2015, 31 December 2015 and 23 March 2016 were similarly marred by violence.

    3.60 According to a credible local NGO, Ain o Salis Kendra (ASK), in 2015 153 people died and 6,318 were injured in 865 separate incidents involving political violence. The victims included AL, BNP and JI members (but not Jatiya Party members), as well as civilians. Hartals and blockades accounted for 102 deaths and 2,129 injuries (from 466 incidents), while clashes with law enforcement agencies resulted in 11 deaths and 1,478 injuries (from 128 incidents).

    3.61 DFAT understands that the level of intra-party violence has increased with the decline of the BNP. This violence centres on competition over resources rather than ideological differences, and is greatest between rival factions of the AL’s student and labour wings because of the greater stakes involved in control over state resources. These factions have increasingly and violently competed over contracts, tenders, and appointments to senior positions within the student and labour wings. This has occurred throughout Bangladesh, but is most prevalent in Dhaka. According to ASK, 33 people died and 2,378 were injured in 226 incidents involving intra-AL violence in 2015. This compares with 58 injuries in six incidents involving intra-BNP violence and 26 injuries in three incidents involving intra-Jatiya Party violence over the same period.

    3.62 DFAT assesses that AL, BNP and Jamaat members are subjected to a low level of inter-party violence but notes that, despite the increase in inter-party violence since 2013, the number of casualties remains relatively low in proportion to the size of these parties. Members of the AL’s student and labour wings are subjected to a moderate level of intra-party violence, while members of the BNP and Jamaat student and labour wings face a low risk of intra-party violence.  …

    5.17 Prominent BNP members and JI members at all levels face a lower risk of inter-party violence in Dhaka, although they face a risk of official discrimination throughout Bangladesh. Members of the BNP, JI and AL student and youth wings face a lower risk of intra-party violence in rural areas and major cities outside Dhaka.

    Treatment of Returnees

    Exit and Entry Procedures

    5.18 The Department of Immigration and Passports conducts immigration checks and maintains a list of convicted criminals and persons wanted by security forces and intelligence agencies. The department mostly uses the list to determine whether or not to issue passports but may also use it to prevent people from leaving the country. Authorities can refuse to issue passports to people who have been convicted of war crimes, moral turpitude or smuggling; where they are suspected of leaving to avoid criminal proceedings; where they are ‘likely to engage in activities outside Bangladesh prejudicial to the sovereignty, integrity or security of Bangladesh’; or where doing so would be contrary to the public interest. Credible sources have told DFAT that airport authorities have stopped and questioned senior opposition party members.

    5.19 Bangladeshis require a valid passport and visas (depending on the destination country) to depart from Bangladesh. Authorities require permission from both parents before allowing travel by a minor (children under the age of 12). Minors who have passports or whose names are listed on a guardian or parent’s passport may travel with only one parent.

    5.20 The Emigration Ordinance Act (1982) makes it an offence to depart from Bangladesh other than in accordance with the procedures laid down in the Act. DFAT is not aware of any cases in which authorities have enforced these provisions.

    Treatment of Returnees

    5.21 Bangladesh accepts both voluntary and involuntary returnees. IOM’s Assisted Voluntary Returns and Repatriation (AVRR) program provides assistance to Bangladeshi returnees in cooperation with the returning country and the Government of Bangladesh. DFAT understands that recent returnees from the United Kingdom have not been subjected to any adverse attention by the authorities or others. Although Bangladesh agreed to accept a number of Rohingya returnees during the Andaman Sea crisis in May 2015, Bangladeshi authorities have generally insisted on verifying the identity and Bangladeshi citizenship of returnees (including Rohingyas) before authorising their return.

    5.22 DFAT assesses that most returnees, including asylum seekers, are not subjected to adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia.

1. A 2014 report published by the Immigration and Refugee Board of Canada[4] provides an overview of the situation in Bangladesh and compiles reports from many (identified) sources. The report states:

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

   1. Overview

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

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

   4.1.2 Political Violence and the January 2014 Elections

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

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

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

   5.1 Pre and Post-2014 Elections

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

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

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

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

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

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

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

2. According to a 2015 report from the Bangladeshi human rights organisation Odhikar[5], a recurring trend in Bangladesh involves leaders and activists of the ruling party committing crimes “perpetrators are enjoying complete impunity under political shelter”. Crimes committed by ruling parties against non-partisan individuals have included violence against women, extortion and killings. The introduction to the report states:

   [5] Odhikar, Annual Human Rights Report 2014: On Bangladesh, August 2015, p.3, available at accessed 1 August 2016

   The Awami League and associated Alliance members retained the reign of power in a manner that is morally and constitutionally unjustified. The Awami League’s success in mobilising all coercive institutions of the State is significant in understanding the nature of the present power structure; and its ability to continue without any moral or constitutional legitimacy or respect to rule of law. Local media and civil society activists are debating endlessly and seeking peaceful alternatives for change. It is becoming increasingly clear that the country can at any time fall into a major armed conflict.

3. The executive summary of the report[6] continues:

   [6] Ibid, p.9

   10. The nature of the political power in 2014 is not merely ‘authoritarian’. The unrestrained use of force coupled with a high degree of surveillance on human rights defenders and civil society activists drastically reduce the civil and political space. Elimination of any potential voice of dissent and opposition has become the order of the day. A section of the media generates consent from the privileged urban middle class and thus reinforces the tactics of terror unleashed by the government. They demonise any legitimate protests of the people and justify the violation human rights as a necessity to combat ‘terrorism’.

   11. The rhetoric now deployed by the government and their supporters is extremely important:

   It argues, what Bangladesh needs now is ‘development’ and not democracy or human rights. Therefore, extrajudicial killings, enforced disappearances and other crimes against humanity with total impunity are justifiable as long as Bangladesh can maintain a high growth rate. The qualitative shift from human rights to ‘development’ is an alarming sign and civil society in general is yet to put forward a credible critique of such silencing of civil and political rights.

   12. A weak opposition has further undermined the capacity for popular mobilisation within the limits of a liberal political principle and legitimate moral resistance. Political ambiguity and the lack of a clear civil and political goal to achieve rights and dignity for the people, has become the major challenge of human rights defenders in the face of the rule of terror.

   13. Since the beginning of 2014, restrictions on freedom of expression, freedom of assembly and movement have sunk to the lowest level, unforeseen in the past, making it almost impossible for human rights defenders to articulate their concerns without fear of reprisals and intimidation by the government agencies. Over and above, experience shows that recourse to judicial protection is also minimal and in most cases ineffective. Violence and intimidation has become the primary modes of engagement by the ruling elite.

4. In relation to the role of the police the report states[7]:

   [7] Ibid, p.96

   264. Police integrity is compromised by nepotism, political patronage and an absence of sanctions for wrong doing. Much depends on political consideration and personal gains. This leads to a loss of discipline, arrogance and a culture of impunity among police officers. The police are publicly known for their corrupt practices that range from accepting money from traffic rule violators to helping criminals escape. The reluctance on the part of the police to offer protection without bribes or pressure from some higher authority, has virtually privatised state security services in favour of the rich and influential. Experts claim that the chain of bribery and collusion between different levels of officers exists within the police administration, with the benefits of corruption being shared among different levels. Recruitment and postings are also sources of corruption within the police force. Unfortunately, where a complaint is filed against a police officer, in most cases there is no investigation undertaken into it, as any prosecution of a public servant needs government sanction. Even the National Human Rights Commission Chairman, Mizanur Rahman, has mentioned that the law enforcement agencies are the worst violators of human rights in the country.