1419712 (Refugee)

1419712 (Refugee) [2016] AATA 4235 (22 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1419712
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Linda Symons
DATE:22 July 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 22 July 2016 at 5:35pm
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

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).
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia by boat [in] April 2013. He was detained and subsequently issued with a Bridging visa [in] August 2013. This visa expired [in] October 2013 and he thereafter became an unlawful non-citizen. [In] April 2015, he was granted a further Bridging visa.
The applicant applied to the Department of Immigration and Border Protection (the Department) for the Protection visa [in] September 2013 and the delegate refused to grant the visa [in] November 2014. [In] December 2014, he applied to the Tribunal for review of that decision.
The applicant appeared before the Tribunal on 26 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant was represented in relation to the review by his registered migration agent.
The issues that arise on review are whether Australia has protection obligations to the applicant under the Refugees Convention or under the complementary protection criterion.
RELEVANT LAW
The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a Protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
Section 499 Ministerial Direction
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.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The applicant’s claims in his visa application are summarised as follows:
·He is a citizen of Bangladesh. He was born in [village], Barisal District, Barisal Division, Bangladesh. He is [age].
·The majority of his friends were conservative Muslims and “sided with” the Bangladesh Nationalist Party (BNP). When he was of an age he could understand politics he decided to support the BNP.
·There were general elections in Bangladesh in late 2008. In the lead up to the election he routinely attended pro BNP rallies and openly supported the BNP with the intention of obtaining political favours after the elections. At the time he operated a [certain] business and exported [goods] to Dhaka. He hoped to expand his business through political connections.
·He regularly talked to members of the community about the BNP and spent most of his time with friends who were BNP supporters. Most of his friends were involved in business and they were more wealthy than most Bangladeshi villagers. They donated funds to the BNP and were known as relatively high profile BNP supporters in his village.
·The BNP lost the election and the Awami League (AL) won by an overwhelming majority. The ruling AL members undertook a process of extorting, taking advantage of and generally taking revenge on BNP supporters.
·During a conflict between BNP supporters and the AL, an AL member was shot and killed. The local Police (who were aligned with the AL) began arresting individuals who were considered important BNP supporters. They were arresting, beating and extorting from individuals considered to be important BNP supporters. He and his friends fled to different parts of the country. Because he feared for his life, he sold his business at a discounted rate and went to Chittagong.
·After his departure from [village], the Police went to his home several times in search of him. Although he did not receive an official arrest warrant, he feared that the Police were looking for him to beat and extort from him like they did to other BNP supporters.
·His life in Chittagong was difficult. He had no family connections. His wife and children were in [village]. He could not take them to Chittagong because of the high levels of crime, lack of access to sanitation, education and basic health care. He lived in the polluted and dangerous CBD in Chittagong. He worked in a [certain] factory almost every day to earn an income to provide for his family.
·Over the years the animosity between the BNP and the AL continued to escalate. There were increasing reports of abductions of BNP members throughout the country whilst many members of Jamaat-e-Islami (JI), the BNP’s main political ally, were arrested on fraudulent charges of war crimes from the 1971 liberation war.
·The AL maintained small groups of thugs who extorted from and intimidated BNP supporters. In about 2013, a group of these men began loitering around his place of employment. He regularly saw them beating people they discovered to be BNP supporters and stealing their money. He feared that if AL supporters from his village went to work at his place of employment he would be identified as a key BNP supporter in his local area and exposed to harm. He discovered that there were boats and people like him were assisted to seek asylum overseas.
·[In] March 2013, he departed Bangladesh with the assistance of a people smuggler and sought asylum overseas.
·He fears that he will be beaten, abused or killed if he returns to Bangladesh. He fears that he will be harmed by the AL and its supporters.
·He fears harm because of his actual or imputed political opinion. He is a supporter of the BNP and has been targeted by the Police in his village. He also fears that AL thugs who patrol his work place will discover his past BNP involvement and harm him.
·He fears significant harm which amounts to arbitrary deprivation of his life, torture, cruel or inhuman treatment or punishment and/or degrading treatment or punishment.
·He fears the authorities. The authorities in Bangladesh are ineffective, corrupt and generally unable to provide State protection to its citizens. The authorities are associated with the incumbent government.
The applicant has provided to the Department a copy of his Bangladeshi Birth Certificate.
The applicant attended an interview with the Department [in] October 2014 in relation to his application for a Protection visa. He has filed with the Tribunal a copy of the Department’s Decision Record dated [in] November 2014. It indicates that, during his interview [in] September 2014, he re-iterated and expanded on his written claims. It indicates that he also made the following new claims:
·He was an official member of the BNP.
·After he first went to Chittagong, he found out that people in his village wanted to file a case against him.
·People later found out that he was in Chittagong and sent him a message that they knew he was in Chittagong and might come for him. A few days later he left Bangladesh.
Following the interview, the applicant’s migration agent filed written submissions with the Department addressing credibility issues raised during the interview.
[In] February 2016, the Tribunal received pre-hearing submissions dated [in] February 2016 from the applicant’s migration agent. In his submissions, he made the following new claims:
·In January 2016, several members of the AL went to the applicant’s home, spoke to his wife and demanded sections of land and financial contributions from his family. When his wife refused to comply, she was pushed to the ground and verbally harassed. On the applicant’s advice, his wife contacted the Police who attended his home. The Police indicated that they were unable to help.
·The applicant believes that the AL members targeted his family home due to their reputation as BNP supporters.
·In about February 2016, his brother [Mr A] was issued with an arrest warrant and subsequently arrested by the Police. [Mr A] attended [a district] Court and was detained. The applicant has been advised that this case is politically motivated because his family is considered a BNP family.
·The applicant believes that this is linked to the previous incident by the AL supporters in January 2016 and that these charges have been made by the AL establishment. He is currently in the process of obtaining Court documents.
·The applicant is at risk of significant harm as a failed asylum seeker.
The applicant has not provided the Tribunal with any Court documents.
[In] May 2016, the Tribunal received post hearing submissions.
Nationality
The Tribunal finds that the applicant is a citizen of Bangladesh, based on his Bangladeshi Birth Certificate, his evidence and his fluency in the Bengali language, and will assess his claims on this basis. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.
Does Australia have protection obligations to the applicant under the Refugees Convention?
The applicant gave evidence to the Tribunal that his migration agent prepared his application for a Protection visa based on his instructions. He stated that his instructions were true and correct and that he was satisfied that his visa application is accurate and complete. He stated that there have been no changes in his circumstances since he filed his visa application [in] September 2013.
During the hearing, the Tribunal discussed with the applicant his background, his family, his employment, his involvement with the BNP, his reasons for leaving Bangladesh and why he fears returning to Bangladesh. The Tribunal found aspects of his evidence to be vague, lacking in detail, evasive, contradictory and unconvincing. He made new claims throughout the process. There were significant inconsistencies in his evidence. The Tribunal has concerns in relation to his credibility and the veracity of his claims. The Tribunal’s concerns are noted below.
In his visa application, the applicant claimed that as soon as he was able to understand politics he decided to support the BNP. He claimed that in the lead up to the elections in late 2008 he routinely attended BNP rallies and supported the BNP. He claimed that he regularly talked to members of the community about the BNP and spent most of his time with friends who were BNP supporters.
During his interview with the Department [in] October 2014, the applicant was asked a number of questions about his involvement in the BNP. He made a new claim that he was an official member of the BNP. He stated that there was a club in his area and he would go and sit there and talk to the members. He stated that he also attended protests. When asked whether he did anything else, he responded no. When asked for details of his participation in the protests, he was unable to provide specific information. When asked what ‘BNP’ stood for, he was unable to provide the full name of the party. When asked what the BNP flag looked like, he responded that it has a green background and is the same as the Bangladeshi flag except that it has a leaf. When asked about the policies of the BNP, he stated that they do “good things” and “no bad things”.
During the hearing, the applicant gave evidence that he became a member of the BNP in 2002. He claimed that he attended meetings, rallies and processions. He made new claims that when people had difficulties they used to distribute food to them and he would put up posters on walls.
Since filing his application for a Protection visa, the applicant’s claims in relation to his involvement with the BNP have increased over time. He started with being a BNP supporter in his visa application. During his interview with the Department [in] October 2014, he claimed that he was an official member of the BNP, went to the club where he spoke to other BNP members and attended BNP protests but did not do anything else. At the hearing, he claimed that he was a member of the BNP, attended meetings, rallies and processions, put up posters on walls, distributed food to the poor and tried to recruit new members to the BNP. These inconsistencies in his evidence raise concerns in relation to the credibility of his claims.
In post-hearing submissions, the applicant’s migration agent submitted that it is the applicant’s perceived support of the BNP that led to his harassment and fear of persecution at the hands of the AL. She listed the activities the applicant claimed to be involved in on behalf of the BNP and submitted that it could have led to the perception that he was a member of the BNP. One of the concerns the Tribunal has is that the applicant’s evidence in relation to his involvement with the BNP and the activities he has engaged in on behalf of the BNP has changed over time as referred to in paragraphs 21 to 24 above. In any event, his evidence to the Tribunal is that he last attended BNP meetings and BNP rallies or processions in November 2006. This was approximately 5 ½ years before he left Bangladesh in 2013. It is therefore highly unlikely that he would now be perceived to be a supporter or member of the BNP.
The applicant gave evidence to the Tribunal that he became a member of the BNP in 2002. He stated that he did not fill out an application form to become a member of the BNP or pay a fee to become a member of the BNP. The Constitution of the BNP requires completion of a prescribed application form to become a member of the BNP and the payment of a fee to join the party.[1] The Tribunal would expect that if the applicant was a member of the BNP, as claimed, he would have completed an application form and paid a fee to become a member as required under the BNP Constitution.
[1] BNP Constitution. (>
The Tribunal asked the applicant to describe the flag of the BNP. He stated that it has a green background with a red circle in the middle and is the same flag as the Bangladeshi flag. He stated that the symbol of the BNP is a paddy sheaf but this is not on the flag. The flag he described is the national flag of Bangladesh and not the flag of the BNP.[2] In post-hearing submissions, the applicant’s migration agent submitted that the Tribunal asked the applicant to explain the BNP symbol and he did so confidently. This is incorrect as what the Tribunal asked the applicant to do was to describe the flag of the BNP which he was unable to do accurately.
[2] Ibid.
The applicant correctly identified the symbol of the BNP as a sheaf of paddy. However, he stated that the sheaf of paddy is not on the flag. The BNP flag has a sheaf of paddy in the centre.[3] When asked to draw a picture of the flag of the BNP, he drew the Bangladeshi national flag. His migration agent submitted that this was because he was unfamiliar with the BNP flag. The Tribunal would expect the applicant to be aware of the BNP flag if he was a member, or alternatively a supporter, of the BNP since 2002, attended BNP meetings, rallies and processions and put up BNP posters as claimed.
[3] BNP – Party flag. (>
During the hearing, the applicant gave evidence that he talked to members of the community about the BNP and tried to recruit them to join the BNP. He stated that he discussed the policies and goals of the BNP with them. When asked what he could tell the Tribunal about the policies of the BNP, he was evasive. He responded that he has “never seen any bad work provided for the citizens. I always saw good work provided by the BNP.” He stated that they worked for the benefit of the citizens. When asked the four main principles of the BNP, he responded that he has never seen them doing jobs that go bad for the people of the country. He stated that when they were in power they governed the country well. He was unable to provide any information to demonstrate that he had any knowledge of the policies and goals of the BNP.
The Tribunal raised as an issue with the applicant his lack of knowledge of the BNP and its concerns that he was ever a member of the BNP. He responded that he did not fill out a form. He stated that if the BNP won the election they would fill out a form and become members. He stated that the BNP has the same flag as the Bangladesh flag and it is only the symbol that is different.
In post-hearing submissions, the applicant’s migration agent referred to the doubts raised by the Tribunal in relation to the applicant’s support and membership of the BNP and submitted that the applicant confirmed that he did not fill out an application form or pay a membership fee and was not an official member of the BNP. What the submission did not refer to was the applicant’s initial evidence to the Tribunal that he was a member of the BNP when asked whether he was a supporter or a member of the BNP. It was only after the Tribunal raised this as an issue did he change his evidence and state that he was going to fill out the application form and become a member of the BNP if the BNP won the 2008 election. The submission also did not refer to the applicant’s evidence during his interview with the Department [in] October 2014 when he claimed that he was an official member of the BNP. The Tribunal does not accept these submissions.
During the hearing, the applicant gave evidence that the last BNP meeting he attended was in November 2006 and the last BNP rally/procession he attended was also in November 2006. This is inconsistent with his claim in his visa application that in the lead up to the 2008 election he routinely attended pro BNP rallies and openly supported the BNP with the intention of obtaining political favours after the elections. This inconsistency in his evidence raises concerns about the credibility of his claims.

In post-hearing submissions, the applicant’s migration agent submitted that the applicant remains in contact with the BNP General Secretary for his village and contacts him approximately once a month by telephone. She submitted that he has requested a letter from him to show his previous and continued support. She submitted that he has maintained contact with the BNP, shown his motivation to remain active within the party and still wishes to have a position within the party. This submission is not based on any evidence before the Tribunal and is in fact inconsistent with the evidence given by the applicant to the Tribunal. The applicant’s evidence to the Tribunal is that since coming to Australia he has not in any way supported the BNP or had any contact with anyone from the BNP. He has also not provided the Tribunal with a letter from the [senior official] of the BNP for his village despite the Tribunal delaying the finalization of the review for over 2 ½ months.
These inconsistencies in the applicant’s evidence and his lack of knowledge of the BNP raise concerns in relation to the nature of his involvement with the BNP and whether he was involved with the BNP at all.
In his visa application, the applicant claimed that the AL won the 2008 elections by an overwhelming majority and thereafter AL members began a process of extorting, taking advantage of and generally taking revenge on BNP supporters. He claimed that during a conflict between BNP supporters and the AL, an AL member was shot and killed and the local Police (who were aligned with the AL) began arresting individuals who were considered important BNP supporters. He claimed that he and his friends fled to different parts of the country. He claimed that because he feared for his life, he sold his business at a discounted rate and went to Chittagong.
During the hearing, the applicant gave evidence that he left his village and went to Chittagong prior to the 2008 election. When asked why he did so, he said he could not live in the village. When asked why not, he stated that members of the AL were destroying houses. When asked whether his house was destroyed, he stated that they went to his house but did not destroy it. He stated that other people were beaten. He stated that there was a plan to beat him up but he found out about it and went to Chittagong. He stated that the AL members went to the market place and destroyed many businesses. He stated that his business was there but after he obtained a tip off he moved his business to a safer place.
The evidence the applicant gave during the hearing was inconsistent with his claims in his visa application. Firstly, in his visa application he claimed that he moved to Chittagong after the AL won the 2008 election. During the hearing, he stated that he moved to Chittagong before the 2008 hearing. Secondly, in his visa application he claimed that he left his village because the local Police began arresting individuals who were considered to be important BNP supporters in association with the shooting death of an AL member. During the hearing, he stated that he left because AL members were beating people and destroying peoples’ homes and shops and he found out that they were planning to beat him. Thirdly, in his visa application he claimed that he sold his business at a discounted rate and went to Chittagong. During the hearing, he stated that he got a tip off that AL members were going to destroy shops in the market place and he moved his business to a safer place.
The Tribunal raised as an issue with the applicant the inconsistencies in his evidence in his visa application and in the hearing in relation to why he left his village and went to Chittagong and its concerns in relation to the credibility of his claims. He declined to respond.
In his visa application, the applicant claimed that after he left his village and went to Chittagong, the Police went to his home several times in search of him. He claimed that although an official arrest warrant was not issued, he feared that the Police were looking for him to beat and extort from him like they did to other BNP supporters. During the hearing, the Tribunal asked the applicant whether he had any involvement with the Police. He responded that he did not but the Police were looking for him. When asked why, he responded that there was once a false case lodged against him, he protested and said he was not there and they took his name off. He stated that this occurred in October 2006.
The applicant then gave evidence to the Tribunal that during the time of the caretaker government, in mid-2006, the Police were looking for him and other members of the BNP and they moved and scattered. He stated that the Police were looking for him because of his involvement with the BNP. He stated that the Police went to his house looking for him but he managed to get out the back door, jump in a creek and escape. When asked if the Police returned and found him, he answered. When asked how it was that the Police did not find him if he continued to live in the same village in the same house until the end of 2008, he responded that he was in his village but did not sleep in one place. He stated that he slept in different houses in different areas.
This was a new claim that the applicant had not made in his visa application or during his interview with the Department [in] October 2014. When asked why he had not mentioned this claim previously, he responded that he did not recall it. When asked why he was not able to recall that he slept in different houses for a period of 1 ½ years, he responded that he did remember it. He stated that he sometimes used to sleep in different houses when he got alarmed that the Police were coming. The Tribunal does not accept this explanation as it is implausible that he continued to live in his village, although he slept in different houses, and continued to work in the same job and the Police were looking for him but could not find him over that lengthy period. The applicant’s failure to mention this claim previously also raises an issue in relation to the credibility of this claim.
During his interview with the Department [in] October 2014, the applicant made a new claim that after he went to Chittagong he found out that people in his local area tried to file a case against him. When the delegate sought details of the case, he responded that he did not know if there was a case but was worried that there might be a case against him. Eventually, he clarified that there was no case against him because he left the village. This claim was not made in his visa application or during the hearing despite being given plenty of opportunity to do so. His failure to do so raises concerns about the credibility of this claim.
The applicant was interviewed by the Department [in] May 2013. During that interview, he claimed that an allegation was made against him that he shot and killed an AL member in a fight during the 2008 election. He claimed that there is a case against him at the Police Station. He claimed that he went to Chittagong so the Police could not catch him and he did not appear in Court. He made no mention of this in his visa application or during his interview with the Department [in] October 2014 or during the hearing. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and raised its concerns in relation to the credibility of this claim. He responded “what can I say?”
In his visa application, the applicant claimed that his life in Chittagong was difficult because he was away from his wife and children who remained in the village. During the hearing, the Tribunal asked him how often he visited his wife and other family members in his village after he left the village in 2008. He responded that he never saw them. When asked whether his wife ever went to Chittagong to visit him, he responded no and stated that no one went to see him. When asked whether he and his wife met up in another place other than the village or Chittagong, he answered no. He stated that he could not because she thought if they contacted each other there could be more hassles. He stated that even when his [child] died he could not return home.
In his visa application, the applicant claimed that he had [children], [one] who was born in 2010. He claimed that [child] died in 2011. During the hearing, he gave evidence that his [child] [died aged] 1 ½ years old. The Tribunal raised as an issue the implausibility of his claims that he left his village in 2008, went to Chittagong and had no further physical contact with his wife thereafter and his claim that his wife gave birth to their [child] in 2010. When the Tribunal noted that he must have had face to face contact with his wife between 2008 and 2010, he responded that he did not but had telephone contact with her. When asked how she got pregnant with his child if they only had telephone contact, he responded that she got pregnant in 2009.
When the Tribunal asked the applicant whether he went back to his village in 2009, he responded that he left his village in November or December 2008. When the Tribunal re-iterated that he must have had physical contact with his wife between 2008 and 2010 if his [child] was born in 2010, he responded that he could not remember when his [child] was born but could remember when [child] died. When the Tribunal reminded him of his evidence at the beginning of the hearing that the information in his visa application was provided by him, that the information he provided was true and correct and that he was satisfied that his visa application is accurate, he responded that his [child] could have been born before or after that date.
In post-hearing submissions, the applicant’s migration agent submitted that the applicant’s instructions are that his [child] died in 2011. She submitted that after further questioning the applicant calculated that his [child] was born in late 2009 and not 2010 as previously claimed. She submitted that he last saw his wife in November or December 2008 and that it is therefore possible that his [child] was conceived in December 2008, was born in late 2009 and died in 2011 at the age of [age]. She submitted that the Tribunal should not make an adverse credibility finding on this basis. Whilst it is possible that the applicant got his [child]’s date of birth wrong, the Tribunal doubts that this is the case. However, the Tribunal is prepared to give him the benefit of the doubt in this instance.
In his visa application, the applicant claimed that small groups of “thugs” from the AL intimidated and extorted money from BNP supporters. He claimed that in 2013 such a group of men began loitering around his place of employment in Chittagong. He claimed that he regularly saw them beating people they discovered to be BNP supporters and stealing their money. He claimed that he feared that if AL supporters from his village went to work at his place of employment he would be identified as a key BNP supporter in his local area and exposed to harm. He claimed that he discovered that there were boats and people like him were assisted to seek asylum overseas so he departed Bangladesh [in] March 2013 with the assistance of a people smuggler.
During his interview with the Department [in] October 2014, the applicant made a new and different claim as to why he decided to leave Bangladesh, travel to Australia and seek asylum here. He claimed that a friend told him that members of the AL in his village had found out that he was in Chittagong and may go to there. He claimed that he made arrangements to leave Bangladesh and left a few days later.
During the hearing, the applicant gave a different version. He stated that someone from his village contacted him by telephone, told him that members of the AL had found out that he was in Chittagong and were planning something against him, warned him that he was at risk and advised him to leave. When asked what they were planning, he responded that they were planning to beat him, hand him over to the Police, maybe involve him in a murder case and put him behind bars for the rest of his life. When asked why they would want to do this to him, he responded that they are doing this to everyone. When the Tribunal noted that he had had no involvement with the BNP since 2006, he responded that he was involved before that but not after the caretaker government. He stated that he was told this at the end of February 2013 and left Bangladesh at the end of March 2013.
The reason given by the applicant in his visa application for leaving Bangladesh is different to the reason he gave during his interview with the Department [in] October 2014 and during the hearing. There are also inconsistencies in the versions of his evidence to the Department and to the Tribunal. For instance, during his interview with the Department [in] October 2014 he stated that after receiving a warning that AL members in his village had found out that he was in Chittagong he left Bangladesh a few days later. He told the Tribunal that he left Bangladesh a month after he received the warning.
The Tribunal raised as an issue with the applicant the fact that he did not make the claim he made during the hearing in his visa application and noted that it would expect him to have done so if this was the reason, or one of the reasons, why he decided to leave Bangladesh. The Tribunal also raised the issues of the inconsistencies in his evidence to the Department and the Tribunal in relation to this incident and its concerns about the credibility of these claims. He responded that someone telephoned him and informed him that he was at risk and it could be a problem. He stated that he cannot recall and it happened a long time ago. The Tribunal accepts that with the passage of time his memory could have faded and he may have difficulty recalling precise details. However, the Tribunal does not accept that he forgot the entire incident and that is why he did not mention it in his visa application. These inconsistencies in his evidence raise concerns about the credibility of his claims.
The applicant was interviewed by the Department [in] May 2013. During that interview, he was asked if anything happened to him in the previous 4 years that made him decide to leave Bangladesh and he responded no. This is inconsistent with the claims he made in his visa application, during his interview with the Department [in] October 2014 and during the hearing. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and raised its concerns in relation to the credibility of his claims. He responded that whatever he said at that time he said. He stated that he now does not have anything to say. This raises serious concerns for the Tribunal in relation to the veracity of the applicant’s claims.
The applicant was interviewed by the Department [in] May 2013. During that interview, he was asked why he decided to leave Bangladesh in 2013 and not in 2009. He responded that at that time he did not know about boats and coming to Australia. He stated that he overheard a [nationality] talk about Australia and thought about coming here. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and raised its concerns in relation to the credibility of his claims. He responded that at that time he wanted to go to some other country. He stated that he needed a passport to get there. He stated that he did not need a passport to come to Australia so he decided to come here. These issues raise concerns about his credibility and the veracity of his claims.
In post-hearing submissions, the applicant’s migration agent submitted that the Tribunal should not make any adverse findings in relation to the lack of detail provided by the applicant at his entry interview [in] May 2013. She submitted that the applicant previously had significant negative experiences with government authorities in Bangladesh, had no knowledge about Australia’s rule of law or legal system, was fearful and apprehensive about disclosing his claims and may have had a distrust of persons in authority. She submitted that once the applicant had the opportunity to seek advice from a migration agent he clearly and concisely clarified the nature of his claims.
The Tribunal does not accept these submissions for several reasons. Firstly, if the applicant was fearful and apprehensive about disclosing his claims because of past negative experiences with government authorities and his distrust of persons in authority, the Tribunal would expect him not to have disclosed any claims during his entry interview [in] May 2013. However, during his entry interview [in] May 2013 he claimed that an allegation was made against him that he shot and killed an AL member in a fight during the 2008 election. He claimed that there is a case against him at the Police Station. He claimed that he went to Chittagong so the Police could not catch him and he did not appear in Court. He made no mention of these claims in his visa application or during his interview with the Department [in] October 2014 or during the hearing which was after he had obtained advice from a migration agent and was represented by a migration agent throughout these processes.
Secondly, the applicant has made new claims throughout the process despite having obtained advice from a migration agent at the time his visa application was prepared. Thirdly, many of the new claims he has made have been inconsistent with and/or contradicted previous claims and he has not been able to give a reasonable explanation for the inconsistencies and/or contradictions in his evidence.
In pre-hearing submissions to the Tribunal dated [in] February 2016, the applicant’s migration agent made a number of new claims. One of those claims was that in January 2016 several members of the AL went to the applicant’s home, spoke to his wife and demanded sections of land and financial contributions from his family. He submitted that when the applicant’s wife refused to comply, she was pushed to the ground and verbally harassed. He submitted that, on the applicant’s advice, his wife contacted the Police who attended his home and indicated that they were unable to help. No written evidence from the applicant was provided to the Tribunal in relation to this new claim.
The Tribunal discussed this new claim with the applicant during the hearing. The Tribunal found his evidence to be lacking in detail, confusing and contradictory. The applicant stated that his wife was speaking to [a number of neighbours] when they got into an argument and one of the [neighbours] pushed his wife to the ground. He stated that his parents and other local people were there and his parents stopped the situation from deteriorating. He stated that he advised his wife to go to the Police and make an entry in the General Diary in case there was a problem in the future. He stated that the Police attended the site and made it stop. This is not consistent with his evidence that his parents stopped the situation from deteriorating and it is not consistent with the claim that the Police stated that they were unable to help. In his evidence to the Tribunal, the applicant did not refer to his wife or family members being extorted for money or land.
In post-hearing submissions, the applicant’s migration agent referred to this incident and to matters that are not in evidence before the Tribunal. She submitted that this incident ‘supports the degree of enmity that exists between the applicant’s family and neighbours due to the applicant’s political association’. The applicant’s evidence to the Tribunal is that he has not been actively involved with the BNP since 2006. This was about 5 ½ years prior to his departure from Bangladesh. The Tribunal finds it implausible that his neighbours would seek to extort money or land from his wife or family because of his ‘political association’ about 10 years after he ceased to be actively involved with the BNP. The Tribunal does not accept these claims or these submissions.

Another new claim made by the applicant’s migration agent in pre-hearing submissions dated [in] February 2016 is in relation to the applicant’s brother, [Mr A]. No written evidence from the applicant was provided to the Tribunal in relation to this claim. It was claimed that in about February 2016 an arrest warrant was issued against [Mr A], he was subsequently arrested by the Police, attended [a district] Court and was detained. The applicant’s migration agent submitted that the applicant has been advised that this case is politically motivated because his family is considered to be a BNP family. He submitted that the applicant believes that this is linked to the previous incident by the AL supporters and that these charges have been made by the AL establishment. He submitted that the applicant believes that the AL members targeted his family home due to their reputation as BNP supporters.
The Tribunal discussed these new claims with the applicant during the hearing. He was unable to provide a coherent account of what happened to his brother. He stated that local supporters of the AL had his brother arrested and imprisoned for assaulting a Police officer but this was not true. When asked whether his brother was formally charged and taken before a Court, he initially stated that they tried to take him to Court but were unsuccessful because the case was not that strong. He subsequently stated that his brother was taken to Court, convicted and sentenced to a term of imprisonment. He stated that this was arranged by the local people. He stated that his brother has been imprisoned for 3 ½ months. When asked for further details, he stated that he did not know and had no documents.
In pre-hearing submissions, the applicant’s migration agent submitted that the applicant was in the process of obtaining Court documentation. These documents were not provided at the hearing. In post-hearing submissions, she submitted that the applicant required a further 2 weeks to provide this additional evidence. Despite delaying the finalization of this review for 2 ½ months, no additional evidence has been provided to the Tribunal.
The Tribunal finds the applicant’s claims in relation to his brother [Mr A] and that he was advised that his brother’s case was politically motivated because his family is considered to be a BNP family, to be implausible. Firstly, his evidence to the Tribunal is that he has not been actively involved with the BNP since 2006. It is now some 10 years later and it is highly unlikely that he would be perceived to be a supporter or member of the BNP. Secondly, his evidence to the Tribunal is that his family members are not supporters or members of the BNP. During his interview with the Department [in] October 2014, he also gave evidence that his family is not involved with the BNP. It is therefore highly unlikely that they would be considered to be a BNP family.
Thirdly, the applicant’s evidence to the Tribunal is that his brother [Mr A] used to support the AL. When the Tribunal asked him why AL members or supporters would put an AL supporter in gaol, he responded that the local [official] and AL members conspired against his brother and put him in gaol but offered no explanation as to why they did that. The Tribunal finds this evidence to be unconvincing.
The applicant gave evidence that his [relative] bought a piece of land and there is a dispute over the ownership of that land. When asked about the dispute, he stated that a man owned a piece was land that he had mortgaged. He stated that when that man died his sons sold the land to his [relative] and repaid the money to the mortgagee. He stated that the mortgagee claimed that the land belonged to him. When asked what this had to do with the AL or the Police, he responded that the issue was taken to the local [official] whose supporters then ceased the land and built a temporary shelter on it. He stated that his [relative] has now commenced a Court case.
In pre-hearing submissions dated [in] February 2016, the applicant’s migration agent made a new claim that the applicant has a well-founded fear of persecution as a failed asylum seeker and quoted the Bangladeshi Prime Minister from an article in the Sydney Morning Herald dated 25 May 2015. During the hearing, the applicant gave evidence that he had no other reason to fear returning to Bangladesh other than the political claims made above. It would appear that this is an ambit claim made by his migration agent that he is not aware of.
DFAT states the following in relation to the treatment of failed asylum seekers:
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.
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.[4]
[4] DFAT Country Information Report on Bangladesh, 5 July 2016.
The applicant’s evidence to the Tribunal is that he has not in any way supported the BNP or had any contact with the BNP since coming to Australia. In view of this country information, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for reason of being a failed asylum seeker (or that there is a real risk that he will suffer significant harm for this reason) if he returns to Bangladesh now or in the reasonably foreseeable future.
The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility and in particular the applicant’s level of education and cultural factors when assessing his credibility. The Tribunal has also had regard to the DFAT Country Information Report on Bangladesh and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.
Findings
Having considered all the applicant’s claims, all the evidence and the submissions, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.
The Tribunal accepts that the applicant was born on [date] at [village], , Barisal District, Barisal Division in Bangladesh. The Tribunal accepts that he is of Bengali ethnicity and is a Muslim. The Tribunal accepts that his father married [more than once] and that he has [number] siblings. The Tribunal accepts that he attended Primary School between [years].
The Tribunal accepts that the applicant was unemployed after he left school and was supported by his family. The Tribunal accepts that as an adult he was unemployed until 2000 but during this period he assisted his family by maintaining and managing farm land and workers. The Tribunal accepts that from 2000 to November or December 2008 he worked as a self-employed retail trader selling [certain goods]. The Tribunal accepts that between November or December 2008 and January 2013 he worked as a [occupation] in [a certain] industry in Chittagong.
The Tribunal accepts that the applicant got married in 1999. The Tribunal accepts that he had [children]. The Tribunal accepts that [a child] died in a [certain] accident at the age of [age].
The Tribunal accepts that the applicant left Bangladesh [in] March 2013 and travelled to Australia via [country]. The Tribunal accepts that he decided to leave Bangladesh and travel to Australia after he overheard a [nationality] in the bazaar speaking of travelling to Australia.
The Tribunal does not accept that the applicant was a supporter or member of the BNP or that he was perceived to be a supporter or member of the BNP. The Tribunal does not accept that his friends were supporters or members of the BNP or perceived to be so. The Tribunal rejects the entirety of the applicant’s claims that flow from these claims. The Tribunal accepts that the applicant’s father, brothers and family members are not supporters or members of the BNP. The Tribunal does not accept that his family is considered to be a BNP family or that any of his family members are perceived to be BNP supporters or members.
The Tribunal accepts that life in Chittagong was difficult for the applicant. The Tribunal does not accept that the applicant did not return to Chittagong between November or December 2008 and [date] March 2013.
The Tribunal accepts that in about January 2016 the applicant’s wife had an argument with [number of] neighbours and that during the argument one of the [neighbours] pushed his wife to the ground. The Tribunal accepts that, on his advice, his wife reported this incident to the Police and an entry was made in the General Diary. The Tribunal accepts that the Police attended his family home in response to the complaint. The Tribunal does not accept that the Police stated that they were unable to help in light of the applicant’s own evidence that the Police attended and “made it stop”. The Tribunal does not accept that these [neighbours] were AL supporters or members who tried to extort money or land from the applicant’s wife/family or that this incident was in any way politically motivated.
The Tribunal accepts that the applicant’s [relative] purchased a block of land and that there was a dispute over the ownership of that land. The Tribunal accepts that she has commenced Court proceedings in relation to this issue. The Tribunal is not satisfied that this dispute was in any way politically motivated. The Tribunal does not accept that the village [official] or his supporters ceased the land and built a temporary shelter on it.
The Tribunal does not accept that the applicant’s [brother] [Mr A]has been falsely accused of assaulting a Police officer or that he has attended Court and been convicted and sentenced to a term of imprisonment. The Tribunal does not accept that he has been in custody for 3 ½ months.
The Tribunal does not accept that the applicant or any member of his family was or is of adverse interest to the AL, its leaders, members or supporters. It follows that the Tribunal does not accept that the applicant will be harmed, beaten, abused or killed by members or supporters of the AL if he returns to Bangladesh now or in the reasonably foreseeable future.
The Tribunal does not accept that the applicant or any member of his family was or is of adverse interest to the Police or any other Bangladeshi authority. It follows that the Tribunal does not accept that any adverse report, false charge or case has been lodged against the applicant or any of his family members. The Tribunal does not accept that the applicant will be beaten, abused or killed by the Police or any other Bangladeshi authority if he returns to Bangladesh now or in the reasonably foreseeable future.
The Tribunal accepts that the applicant does not wish to return to Bangladesh and would prefer to live in Australia.
In view of the above findings, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of his actual or imputed political opinion or any other Refugee Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Refugee Convention reason. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
The Tribunal has rejected the entirety of the applicant’s material claims on the basis that they were fabricated for the purpose of obtaining a Protection visa. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Bangladesh now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.

Linda Symons

Member

[2016] AATA 4235

22 July 2016

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction