1419767 (Refugee)

[2016] AATA 3774

1419767 (Refugee) [2016] AATA 3774 (27 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419767

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Fraser Syme

DATE:27 April 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 27 April 2016 at 5:45pm

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. The applicant is a [age] man from Bangladesh. According to the applicant, he was harmed in the past by supporters of the Awami League (“AL”).  Because members of his family are involved with the Bangladesh National Party (“BNP”), the AL supporters damaged his shop and beat him, then damaged his home.  He fears if he returns to Bangladesh he will be again be harmed by members of the AL and because of his religion.

2. The applicant applied to this Tribunal [in] December 2014 for review of a decision made by a delegate of the Minister for Immigration [in] November 2014 to refuse to grant him a Protection visa under s.65 of the Migration Act (1958). The applicant included the delegate’s decision with the review application.

3. This review application raises the following issues for the Tribunal to determine:

   a.Does the applicant have a well-founded fear of persecution in the reasonably foreseeable future if he returns to Bangladesh.

   b.Are there substantial grounds for believing there is a real risk the applicant will suffer significant harm if he is removed to Bangladesh.

   HISTORY OF THE APPLICATION FOR REVIEW

4. The applicant entered Australia as an unlawful maritime arrival in March 2013. He applied to the Department of Immigration for a protection visa in June 2013. The delegate conducted an interview with the applicant in October 2014. The Tribunal has listened to a recording of that interview. The applicant provided no supporting documents to the department.

5. In the decision under review, the delegate found the applicant was a victim of criminal activity in the past. Although his [Sibling] A may be involved with the BNP, that would not make the applicant a target for harm by supporters of the AL. Therefore the delegate found the applicant did not have a well-founded fear of persecution or a real risk of significant harm if he returned to Bangladesh.

6. The applicant appeared before the Tribunal on 26 November 2015 to give evidence and present arguments. The hearing was conducted with the assistance of an onsite interpreter in the Bengali and English languages.

7. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing and provided written submissions prior to the hearing. At the hearing, the applicant provided two photographs said to depict damage to items inside of his house, to the Tribunal.  The Tribunal has had regard to the migration agent’s submissions, which are set out where relevant in more detail below.

   RELEVANT LAW

8. 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.

9. 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).

10. 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.

11. 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’).

12. 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. DFAT has published a country assessment report for Bangladesh, which the Tribunal has had regard to.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

14. In making its findings, the Tribunal is mindful the applicant was [age] at the time of the hearing. The Tribunal is mindful too that whenever evidence is received in a language other than the applicant’s first language or through an interpreter there is always room for differences in meaning and nuance. The Tribunal is satisfied the standard of interpreting at the hearings was reasonable. The Tribunal considers the applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way.

15. The Tribunal finds the applicant is a national of Bangladesh. He provided his evidence of immigration card as evidence of his identity. He spoke with some detail about his life in Bangladesh and conducted the hearing in Bengali language, which is the main language of Bangladesh. He made no claim to be a national of any other country. The Tribunal accepts the applicant’s claims should be assessed against Bangladesh for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). In making the below findings, the Tribunal has considered the applicant’s home town, the place he resided prior to departing Bangladesh, to be his home region.

16. The Tribunal accepts that ‘applicants for refugee status face particular problems of proof as an applicant may not be able to support his or her statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.’  The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt, (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status). The Handbook further states:

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

17. The Tribunal acknowledges, while it may have regard to the Handbook, the Handbook is not binding. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out, see Randhawa v MILGEA (1994) 52 FCR 437.

18. During the hearing, the Tribunal put to the applicant that his credibility was an issue.

    Well-founded fear of persecution

19. In summary, the applicant’s claims are he was harmed by supporters of AL due to his family’s and in particular his [Sibling]A’s support of BNP. AL supporters would often harass him at his family’s shop in Dhaka and take items without paying. He was attacked and injured by the AL supporters at the shop. Later, his family closed the Dhaka shop for that reason and reopened a new shop closer to their home village. The same problems happened at the second shop too.  In December 2012, AL supporters severely assaulted and threated to kill the applicant, however, he escaped. The AL supporters then went to his home. The applicant then arranged to leave Bangladesh. The AL supporters continued to go look for him. [Number] of his [siblings] have left Bangladesh too due to their involvement with BNP. Another Sibling A has been jailed in Bangladesh for their involvement with BNP.  Shortly before the Tribunal hearing, the applicant’s father and [Sibling] A were beaten by unknown people, who the applicant suspects were AL supporters. He told the Tribunal his family are no longer living in their home due to the problems, before later clarifying his parents were living at home and his [Sibling A] was living with the [Sibling] A’s family in another home. But then said his father was living with [Sibling] A in Dhaka and his mother is living at home.

20. The applicant provided vague evidence to the Tribunal as to the locations and political activity of his siblings. He variously claimed some of his siblings had gone to [Country 1] or [Country 2] for reasons of escaping political harm, but when asked about that during the hearing, he claimed no knowledge of what political activities in which his siblings were involved other than his [Sibling] A. He further related how some of his [siblings] went to [Country 1] for study, contrary to his earlier claims regarding their departing Bangladesh to escape harm. He further stated he believed his father was a former BNP chairman but that was before he was born and he did not remember any details of the uncle he referred to during his interview with the delegate (whom he said at the interview was killed by supporters of AL).

21. During the hearing, the Tribunal discussed the applicant’s claims in detail. For the following reasons the Tribunal found the applicant was not a credible witness.

    Assault at second shop

22. The applicant explained 6-7 men he knew as residents of his home village came to his shop to ask for [items], when he insisted they pay, they hit him with a hockey stick, beat him and threatened to kill him. Because AL supporters can do whatever they want after AL came to power, the applicant concluded the men to be AL supporters. The applicant got out of the shop and pushed one of the AL supporters who fell and struck his head. The applicant then ran. He told the Tribunal the AL supporters did nothing else. The Tribunal asked did the AL supporters go to his house. The applicant then stated the AL supporters did go to his house, slapped his father, damaged the house and asked for the applicant’s whereabouts. They searched the house and left, he never heard from his parents that the men came back to his home.  The Tribunal put to the applicant using the procedure in s.424AA he told the delegate he was injured with glass when assaulted at the second shop, which was different to his evidence to the Tribunal he was hit with a hockey stick. The applicant elected to reply at the hearing. he explained the injury caused by glass was at the first shop in Dhaka, not the second shop.

23. The Tribunal further put to the applicant in his written statement he claimed at the time he was assaulted, the men told him they did so due to his [Sibling] A’s BNP activities, yet the applicant did not raise this with the Tribunal. The applicant replied it was a long time since he wrote that statement, he could not remember what he said before. The Tribunal commented it was concerned he was referring to remembering what he said before rather than recollecting what actually happened at the time of the assault. The applicant responded he was beaten up very badly and suffered from anxiety. He explained after the assault, his uncle took him to see a doctor in Chittagong. The doctor said the applicant was ok and to take some medicine. The Tribunal commented it appeared then the applicant suffered no serious injury from the assault.

24. The Tribunal considers the applicant providing inconsistent evidence and non persuasive explanations about why he believed the men who assaulted him were supporters of AL undermines his credibility, particularly in light of his attempted explanation for the inconsistency was his inability to recall what he had written before rather than recalling what occurred at the time of the claimed assault. The Tribunal considers this weighs in favour of finding the applicant was not a credible witness.

    Photographs of damage and where he went after the assault at the second shop

25. The applicant provided two photographs at the hearing said to depict damage to his family home. He said the photographs were sent to one of his [sibling]’s mobile phone but he did not know when the photographs were taken or by whom. He had not seen the damage himself. He said after escaping from the assault at the second shop, he went to his parents’ home and then to his friend’s home. At that time, there was no damage to his parents’ home. 

26. He further told the Tribunal he went to his parents’ home because he was scared after the assault. There was no other reason why he went to his parents’ home. The Tribunal put to the applicant in his written statement with his protection visa application, he claimed after the assault, he went to the home of his friend, from there he telephoned his parents who told him the AL supporters had been to his home. The applicant then went to his parent’s home that evening to obtain money and saw that a door had been broken. That Tribunal pointed out his statement was inconsistent with his evidence at the hearing about where he went after the assault, why he went to his parents’ home and was inconsistent too with the applicant not seeing any damage at his parents’ home. The applicant responded stating when he was running away from the assault, he happened across his friend. Then they went to his parents’ place. Many things happened. The Tribunal commented that was yet a different account to his statement and what he told the Tribunal earlier in the hearing.

27. The Tribunal put to him a further inconsistency is in his written statement he claimed the AL supporters continued coming to his parents’ home to look for the applicant even after he left Bangladesh, whereas in the hearing he said he did not know of the AL supporters returning to look for him. He replied no one informed him in Bangladesh that anyone was looking for him. No one went up to his parents to ask about him, but his friends had told his father and his father had told him that his home was under surveillance. He said that was different to anyone telling him. It was his father’s mistake, not his. When the Tribunal put to the applicant that was a further inconsistency with what is in his written statement, the applicant had no further comment to make.

28. The Tribunal considers the applicant has again provided materially inconsistent evidence between his written statement and his evidence at the hearing regarding where he went after the assault, when he went to his parents’ home, why he went to his parents’ home, whether he saw any damage at his parents’ home and whether supporters of AL continued to look for him. The Tribunal considers the number of instances of inconsistencies and the material nature in the variances of the inconsistencies weigh very heavily in favour of finding the applicant was not a credible witness.

    Jailing of [Sibling] A

29. During the hearing, the applicant explained his [Sibling] A was jailed three times, he could not remember the first two times but they occurred was when the applicant was a schoolboy. The third time was after the applicant left Bangladesh. He thought the first time his [Sibling] A was implicated in the torture of a woman. He did not know why [Sibling] A was jailed the first two times. He was not sure if there was any political reason for his jailing. Using the procedure in s.424AA the Tribunal put to the applicant he provided inconsistent evidence regarding the reasons for jailing of [Sibling] A. In his entry interview he claimed [Sibling] A had recently been jailed due to violence between AL and BNP. The applicant chose to respond at the hearing that he received different information from different sources. His father told him one thing, his mother told him something else. When asked why did he not then say both things to the Tribunal, he said he was told different things at different times and he did not remember. The Tribunal noted it sought to remind him about the jailing of [Sibling] A when it was questioning him.   He replied that he has a memory problem, but told the Tribunal he had not seen a doctor about that. He felt nervous and confused. The Tribunal considers the applicant’s inconsistent evidence regarding the jailing of [Sibling] A and the non-persuasive explanation for that inconsistency to be further grounds for finding the applicant was not a credible witness.

30. Due to the multiple and material inconsistencies in the applicant’s account of the claimed assault at the second shop, the Tribunal finds the applicant was not a credible witness. It considers he has fabricated these claims as a basis upon which to apply for protection. The Tribunal rejects that he or any of his family members have any connection for BNP. It rejects he or his family members have been harmed in anyway in the past. It rejects he was assaulted at either the first or second shop by supporters of AL or by anyone else. It rejects supporters of AL went to his family home or continued to look for him. It rejects any of his siblings have departed Bangladesh for political reasons. It rejects his [Sibling] A has been jailed for political reasons. It rejects his father was a BNP chairman and rejects his uncle was harmed by supporters of AL.

31. After taking into account all of the relevant evidence, the Tribunal has found the applicant faced no serious harm in the past. The Tribunal finds the applicant not to have any political profile in support of the BNP or of any other political party. It finds the applicant does not have a well-founded fear of serious harm for reason of an imputed or actual pro-BNP political opinion nor because he is a member of the family unit of [Sibling] A or their father, now or in the reasonably foreseeable future if the applicant returns to Bangladesh.

    Other claims - Religion

1. In his statement accompanying the protection visa application, the applicant said he feared to return to Bangladesh because he would be harmed for being a Muslim. In the prehearing submission, the migration agent set out the applicant did not wish to proceed with any claim he feared harm on the basis of his religion. At the commencement of the hearing the applicant explained what he meant by the religion claim was that different political groups operated within the madrassa at which he studied and he was pointing out that he should not be imputed as being a supporter or Jamaat-e-Islami (“JEI”) or Chhatra Shibir (“CH”). There was an error to claim he feared harm because he is a Muslim.  Elsewhere in the hearing, the applicant claimed if he wore a hat and beard, he was at risk of being harmed if he returned to Bangladesh because supporters of JEI and CS wear hats and beards. The Tribunal noted the applicant did not have a beard at the hearing. He responded he would grow a beard if he had to return to Bangladesh and he would wear a hat if he attended mosque. The Tribunal put to the applicant it was unsure there was a real chance he would be assumed to be a supporter of JEI or CH because he had studied at a madrassa, wore a hat or had a beard. He replied it was a risk to everyone, but he also did not fear he would be harmed if he wore a hat or beard.

2. The Tribunal is willing to accept the applicant attended a madrassa and supporters or JEI and CH attended that madrassa. It is willing to accept too the applicant may choose to wear a hat and grow a beard if he returns to Bangladesh. However, the Tribunal considers there to be only a remote or speculative chance and therefore not a real chance the applicant will face serious harm because he is imputed to be a supporter of JEI and/or CH for reason of his attending a madrassa, wearing a hat or having a beard, now or in the reasonably foreseeable future if the applicant returns to Bangladesh. 

   Shop owner

3. During the hearing, the migration agent submitted, notwithstanding concerns regarding the applicant’s credibility, the applicant still faced a chance of harm as a shop owner who would be subject to corruption and violence. The applicant’s evidence to the Tribunal was that his father owned the first shop and rented the second shop. In both places his father was the business owner and the applicant worked for his father. The Tribunal is willing to give the applicant the benefit of the doubt that was the case. But as set out above, the Tribunal has rejected as fabricated his claims to have been assaulted by supporters of AL at either shop. The Tribunal is willing to accept too if the applicant returns to Bangladesh he may return to work for his father at his father’s shop. The Tribunal is not satisfied though that there is more than a speculative or remote chance and therefore is not satisfied there is a real chance the applicant will face serious harm because he may work in a shop owned by his father, now or in the reasonably foreseeable future if the applicant returns to Bangladesh.

4. After assessing all the evidence and being mindful of the applicant’s personal circumstances, the Tribunal has considered the claims of the applicant individually and cumulatively. For the above reasons, the Tribunal is not satisfied the applicant has a well-founded fear of persecution from supporters of AL, or from any other source for reason of his actual or imputed political opinion, religion, working in a shop or for any Convention reason or combination of reasons, now or in the reasonably foreseeable future if he returns to Bangladesh. Therefore, the applicant does not satisfy the requirements of s.36(2)(a). 

   Real risk of significant harm

5. The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances.  

6. On the evidence before it, the Tribunal considered there was not a real chance that applicant will suffer any serious harm from supporters of AL or any other persecutor, if he is removed to Bangladesh. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm.  The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB.[1] Given the real chance test for well-founded fear of persecution imposes the same standard as the real risk test of significant harm, for the same reasons set out above, the Tribunal is not satisfied the applicant faces a real risk of significant harm.

   [1] [2013] FCAFC 33

7. The Tribunal therefore considers there are no 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 the applicant will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment.

8. Therefore the applicant does not meet the requirements of s.36(2)(aa).

   CONCLUSIONS

9. 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).

10. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

11. 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

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

    Fraser Syme
    Member