1419835 (Refugee)

[2016] AATA 4907

1419835 (Refugee) [2016] AATA 4907 (29 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419835

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Giles Short

DATE:29 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 29 June 2016 at 2:22pm

CATCHWORDS

REFUGEE – Protection visa – Bangladesh – Political opinion – Jamaat-e-Islami – Islami Chhatra Shibir – Religion – Sufi – Maizbhandari sect – Particular social group – Bangladeshi ship deserters – Election campaign – Physical violence – Threats of killing – Imprisonment – Employment – Credibility issues – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36, 65, 91R, 424AA, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES
AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Border Protection v WZAPN [2015] HCA 22
Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401
Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235
SZQTJ v Minister for Immigration & Anor [2015] FCCA 3226
SZRNJ v Minister for Immigration [2014] FCA 782
SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245
SZVCH v Minister for Immigration & Anor [2015] FCCA 2950
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

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

INTRODUCTION

1. [The applicant] is a citizen of Bangladesh.  He deserted a ship in Australia [in] 2011 and he first applied for a protection visa on 12 May 2011.  In that application he said that he had left Bangladesh to escape persecution for his religious beliefs as an adherent of a Sufi sect, Maizbhandari.  He expanded upon these claims when he was interviewed by the primary decision-maker in relation to that application on 15 November 2011 but in a statutory declaration made on 23 July 2012 and submitted to the Refugee Review Tribunal he said that these claims were not genuine.  He said that he actually feared being persecuted because of his involvement in a political party, the Jamaat-e-Islami, and its student wing, the Islami Chhatra Shibir.  The Refugee Review Tribunal affirmed the decision refusing to grant [the applicant] a protection visa on 3 October 2012 and he unsuccessfully sought judicial review of that decision.[1]  On 19 May 2014 he made his current application, attaching a copy of his statutory declaration made on 23 July 2012, and it was accepted as a valid application as a result of the decisions of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 and the Federal Circuit Court in SZRNJ v Minister for Immigration [2014] FCA 782.

   [1] [Deleted].

2. On 18 November 2015 the Federal Circuit Court held in a similar case affected by SZGIZ that it was a jurisdictional error for the Tribunal to limit its review to consideration of the complementary protection criterion in circumstances where (as in the present case) the delegate had considered the application under both the Refugees Convention and the complementary protection criterion.[2]  On 3 December 2015 another judge of the Federal Circuit Court held that the decision made by that Court on 18 November 2015 was plainly wrong[3] and on 15 December 2015 a judge of the Federal Court of Australia likewise found that the Federal Circuit Court had erred in its findings on this issue.[4]  This last decision is binding on the Tribunal but, as the Minister for Immigration has appealed to the Federal Court from the decision made by the Federal Circuit Court on 18 November 2015, the question cannot be regarded as having been definitively settled.[5]  Out of an excess of caution I have therefore considered [the applicant’s] application under both the Refugees Convention and the complementary protection criterion while noting that, in accordance with the most recent decision of Federal Court, the Tribunal can only consider his application under the complementary protection criterion.

   [2] See SZVCH v Minister for Immigration & Anor [2015] FCCA 2950.

   [3] See SZQTJ v Minister for Immigration & Anor [2015] FCCA 3226.

   [4] See AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424.

   [5] The appeal was heard by a five member bench (Justices Dowsett, Kenny, Siopis, Besanko and Mortimer) on 4 May 2016 and judgment was reserved.

3. [The applicant’s] current application for a protection visa was refused by a delegate of the Minister for Immigration on 7 November 2014 and he has applied to this Tribunal for review of that decision.  A summary of the relevant law is set out at Attachment A.  I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade into account to the extent that they are relevant.  Subject to the observations made above with regard to the Tribunal’s jurisdiction, the issues in this review are whether [the applicant] has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention if he returns to Bangladesh and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Does [the applicant] have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Bangladesh?

   [The applicant’s] claims

4. [The applicant] is aged in his [age range].  He comes from a village called [Village 1] which is in the Senbag thana in the Noakhali district in the south-east of Bangladesh.  His parents still live in the village where he has said that his father has a lot of land.  He has a wife and [child] who are living in Narayanganj with her family.  [The applicant] attended primary and high school in [Village 1].  He attended college (Years 11 and 12) in [a town] in the Feni district and he then completed a [degree] at [a named] College in [year].  He has said that he was unemployed until March 2004 where he went to Dhaka to work as [an Occupation 1] for a [product] company, [Business 1].  He has said that he ceased working there in January 2007 and that from May 2008 until [2011] he was employed as [an Occupation 2] by a firm of shipping agents in Chittagong, [Business 2].  In his current application he said that he had lived in Narayanganj from March 2007 until October 2010 (when he had last left Bangladesh) but at the hearing before me he said that this was not correct and that he had lived in [Village 1] and had visited his wife and [child] in Narayanganj once a week.  He then said that he had been unable to live anywhere permanently, that he had only gone to [Village 1] to visit his parents and that he had been travelling around.  As referred to above he deserted a ship in Australia [in] 2011.

5. As referred to above, in his first application for a protection visa, made on 12 May 2011, [the applicant] said that he had left Bangladesh to escape persecution for his religious beliefs.  He said that he was an adherent of a Sufi sect, Maizbhandari, and that he feared that he would be discriminated against and harassed and that his life might even be at risk for this reason if he returned to Bangladesh.  He said that the mainstream people in Bangladesh were fundamentalists and the government represented them.  He said that as a result he would not be protected by the authorities if he returned to Bangladesh.

6. In a statement accompanying his first application [the applicant] said that he came from a conservative Muslim family and that he had been brought up in a very strict religious environment.  He said that in May 1999 he had attended a religious programme led by [Leader A] and that he had listened to [Leader A’s] speech on Sufism and the ideology of Maizbhandari.  He said that after that he had visited [Leader A’s] place almost every week and he had also visited the centre of the Maizbhandari religion in Chittagong where he had met the current Imam, Syed Mohammad Hassan Mia Maizbhandari.  He said that while he had been studying for his degree he had become a disciple of [Leader A] in November 1999 and had accepted the Maizbhandari religion.  He said that he had dedicated himself to this religion and that when he had returned to his home in Noakhali after completing his degree he had discussed the Maizbhandari ideology with people in his area.  He said that his father had become antagonistic towards him.

7. [The applicant] said that in 2003 he had started to talk publicly about the Maizbhandari religion.  He said that he had been threatened by his family and members of the community and that it had been difficult for him to perform his worship.  He said that his father had kicked him out of the family home.  He said that in January 2004 he had organised a prayer session in the house of one of their believers which had been attacked by a group of people and he had been severely beaten.  He said that after this he had gone to Dhaka and had got a job as [an Occupation 1].  He said that he and his wife had got married [in] January 2007 without the knowledge of their families but they had been receiving threats from local people.  He said that the firm which had employed him as [an Occupation 1], [Business 1], was owned by people from the Jamaat-e-Islami and that his employment had been terminated in January 2007.  [The applicant] said that he and his wife had left Dhaka and had moved to Narayanganj in March 2007 but he said that he had been threatened there and had left for Chittagong, leaving his wife behind.

8. [The applicant] said that he had got a job on a merchant ship in May 2008.  He said that he had returned to Bangladesh in February 2009 and had remained there for four months but he had not found the situation favourable.  He said that he had left again in July 2009 and he referred to the fact that his [child] had been born on [date].  He said that he had returned to Bangladesh again in June 2010 but that he had found it difficult to move anywhere and he had not been able to perform his prayers freely.  He said that he had experienced discrimination and harassment from members of the community.  He said that he had left Bangladesh again in October 2010.

9. [The applicant] said that he had not been able to visit his village since he had left in 2004 and that he had no relationship with his parents or other family members.  He said that it was impossible for him to perform his religious activities and to offer prayers anywhere in Bangladesh without resistance from Sunni Muslims and that there was every possibility that he would suffer harm if he returned to Bangladesh.  He said that the believers in the Maizbhandari ideology were not able to offer their prayers freely or to practise their religion and they were deprived of their civic rights.

10. [The applicant] was interviewed by the primary decision-maker in relation to his application on 15 November 2011.  He said that he had made two previous voyages on the ship which he had deserted in Australia which had each lasted ten months and that he had been at sea for around six months on the current voyage when he had deserted.  He said that there were no errors in his statement which he wished to correct.  He confirmed that he had got married [in] January 2007 and that he had been living in Narayanganj before he had last left Bangladesh.  He confirmed that he had previously lived in Dhaka from 2004 until March 2007 because of his involvement in the Maizbhandari religious sect had meant that he could not live in his own locality in Noakhali.  He said that his neighbours and relatives and his family had threatened him, saying that he was doing something against religion.  He said that he had also moved from Narayanganj to Chittagong because his neighbours had been threatening him.  He said that he had only remained in Chittagong for about two months before starting to work for the shipping company in May 2008.

11. [The applicant] said that he could not return to Bangladesh because of his involvement in the Maizbhandari religious sect.  He said that his involvement was not acceptable to his parents and to local people as well.  He said that this was the only reason why he could not return to Bangladesh.  He said that if he returned to Bangladesh he would not be able to offer his prayers in accordance with the Maizbhandari rules, he would be completely isolated from society and his freedom of movement would be restricted.  He said that his parents had cut off all relations with him.  He said that once in January 2004 he had been attacked by a group of local people while he had been reciting his prayers at night at the home of one of his friends who had also belonged to the sect.  He said that he had been stabbed with a knife, leaving a scar on his hand, and he had been beaten with sticks.  He said that this had happened because he had tried to spread the Maizbhandari ideology.  He said that in addition his father-in-law did not accept his marriage and his deviation to the Maizbhandari group.  He said that his father-in-law had cut off relations with him and his wife and he had been threatened by the local people while he had been practising his Maizbhandari prayers in Dhaka as well.  He said that his employment as [an Occupation 1] had been terminated when his employers had found out about his involvement in the Maizbhandari group because the company for which he had worked had been run by the Jamaat-e-Islami, a political party.

12. [The applicant] said that he had become a follower of the Maizbhandari sect in November 1999.  He said that before this he had belonged to the Sunni sect.  He said that he and a friend had attended a programme run by the Maizbhandari sect which had been held in his locality.  He said that Sunni people generally did not have good relations with other sects.  He said that according to the Maizbhandari sect he could offer his prayers in any temple.  He said that he prayed at night, not every night, wherever there were favourable circumstances.  He said that he had last performed his prayers in the week before the hearing, in his bedroom in the house where he was living in Australia.

13. [The applicant] said that [Leader A] had been a leader of the Maizbhandari sect in his locality and he referred to seven conditions of achievement which could bring a person close to Allah using what the interpreter said were Arabic terms.  [The applicant] said that he was unable to explain all of these conditions in Bengali.  He referred to meditation and having less food and less sleep and abstaining from sexual intercourse.  He said that another of these conditions referred to white death, green death and red death but he did not know the meaning of this.  He said that the Maizbhandari sect taught that they should not hate other religions and that they should love all creation.  He said that only a leader would understand the seven conditions of achievement.  He said that the sect was based in [a town] in the Chittagong District.  He said that this was [distance] from the city of Chittagong.  He said that the sect had been founded by Hazrat Maizbhandari Shah Sufi Maulana Syed Ahamed Ullah who had been born on 15 January 1826.  He said that after accepting this religion he had learned how to meditate, how to get close to God and how to love all creation.

14. [The applicant] said that the playing of musical instruments during prayers was strictly prohibited in the Sunni sect so they thought that the adherents of the Maizbhandari sect were going against them.  He said that the adherents of the Maizbhandari sect prayed five times a day like the Sunni sect but there were additional prayers which they said.  He said that he had only been attacked once but he had been threatened many times by his neighbours.  He said that they had told him to his face to stop it because what he was doing was against Islam.  He said that they had not told him what would happen if he did not stop but he repeated that if he returned to Bangladesh he would not be able to follow the Maizbhandari religion and he would not be able to move around freely.

15. [The applicant] said that although he had returned to Bangladesh between voyages on board ship he had not had liberty like normal people because people in the locality had kept an eye on him and had treated him as a non-believer.  He said that they did not want cordial relations with him and his family.  He said that he was not in contact with anyone from the Maizbhandari sect in Australia.  He repeated that he was doing his prayers in his own house.  He said that his wife did not have any sort of relationship with anybody and she felt very isolated.  He said that he had changed his address from time to time but he had not found any safe place.  He said that he had faced a threat everywhere he had gone.  He said that 95 per cent of the population of Bangladesh were adherents of the Sunni sect so wherever he went he would be facing this difficulty.  He said that his main problem was that he would not be able to say his prayers freely.  He said that normally the prayers were done with musical instruments which made a loud noise so the people in the surrounding area reacted angrily.  He said that the Sunni sect could not tolerate the Maizbhandari sect and their activities.

16. The primary decision-maker put to [the applicant] that there was no information to suggest that followers of the Maizbhandari sect would be adversely treated in the Chittagong area.  [The applicant] said that this only applied to the area around the headquarters of the sect.  He said that this was a very remote village, not a place where someone could stay for a long time.  He said that people attended for a spiritual programme and then returned to their own areas.

17. [The applicant’s] application was refused on 9 March 2012 and he applied to the Refugee Review Tribunal for review of that decision.  In a statutory declaration made on 23 July 2012 and submitted to the Tribunal he said that he had made a non-genuine claim in his application for a protection visa.  He said that this had been due to the insistence of his previous migration agent.  He said that he practised Sunni Islam and that his father was a supporter of the Jamaat-e-Islami.  He said that he had joined the student wing of the Jamaat-e-Islami, the Islami Chhatra Shibir, in [year] when he had been in Class [number] although he also said that he had been elected as a member when he had been in [the following year].  He said that when he had started attending [a named] College in Feni in August [year] he had been more involved in the Islami Chhatra Shibir and that Awami League members and supporters had pressurised student activists of the Islami Chhatra Shibir to abandon their activities.  He referred to an occasion on which he and other members had hidden themselves in the toilets and had been able to come out after the intervention of their teachers.

1. [The applicant] said that the Awami League had banned the Islami Chhatra Shibir but that he had continued to work for it in his village in Noakhali.  He said that after he had completed his degree in [year] he had started supporting the Jamaat-e-Islami.  He said that [in] 2001 a member of the Islami Chhatra Shibir named [name] had been killed by Awami League members and he had participated in a protest march against the killing.  He said that because of this he had been targeted by Awami League members.  He said that he had campaigned for [a named candidate] in the election for the Chairman of [a local] Union in February 2002 and that he had functioned as the [office bearer] of the Election Committee of the Jamaat-e-Islami.  He said that the Jamaat-e-Islami had won the election and he had been targeted by Awami League members as a result.

2. [The applicant] said that while working for [Business 1] he had participated in meetings and rallies organised by the Jamaat-e-Islami.  He repeated what he had said in the statement accompanying his first application about his voyages on board ship.  He said that he understood from news reports that Awami League members and supporters continued to harass and harm political opponents and that he feared that he would be targeted and harmed because of his political affiliation as an active worker of the Jamaat-e-Islami if he returned to Bangladesh.  He also said that he feared that he would be imprisoned if he went back to Bangladesh because he had deserted his ship.

3. At a hearing before the Refugee Review Tribunal on 25 July 2012 [the applicant] confirmed that he had signed the statement accompanying his application for a protection visa.  He said that he had been helped by a migration agent of Bangladeshi origin with whom he had communicated in Bengali.  He said that he had told his original representative that he had been involved with the Jamaat-e-Islami and his representative had told him that this was a fundamentalist party and that his application would not be accepted.  He said that his representative had created the whole Maizbhandari case.  [The applicant] said that he had just followed his representative’s instructions.  He said that he had been able to understand the claims set out in the statement but the initial claims had not been true.  He said that at the interview in relation to his application he had said what he had been told.

4. [The applicant] said that he had deserted his ship in [Australia] in [2011] because he had been actively involved in the Jamaat-e-Islami in Bangladesh, the Awami League was in power and they were torturing the activists of the Jamaat-e-Islami.  He said that in 2002 during the Union election he had been actively involved with the Jamaat-e-Islami and the defeated candidate from the Awami League named [Mr A] had targeted him, believing that it had been because of him that he had lost the election.  He said that in [year] the Awami League had attacked the Chhatra Shibir in the university or the college right from the second day and had also threatened them.  He said that after this incident he had been forced to stop any kind of activity on behalf of the Jamaat-e-Islami in his college but he had continued to be actively involved in his village.  He said that it had been in [2002] that one of the party representatives had been murdered and he had been targeted by representatives of the Awami League because he had strongly protested against this.

5. [The applicant] repeated that after the Awami League had come to power they had arrested members of the Jamaat-e-Islami and had tortured them.  He said that he was very much afraid that if he went back he would be killed.  He repeated that he had been targeted by [Mr A] and that he had also been targeted because he had stood strongly against the murder of one of their representatives.  Asked if he had actually been harmed in Bangladesh [the applicant] said that he had been threatened that if the Awami League came into power they would ‘see him’.  After the Tribunal noted that the Awami League had been in power [the applicant] said that he was talking about the 2002 incident.  He said that [Mr A] would kill him immediately if he returned to Bangladesh.  He said at the moment all Jamaat-e-Islami representatives and activists were being tortured and threatened continuously.  He said that everybody knew about this in Bangladesh.

6. [The applicant] said that when he had returned to Bangladesh in February 2009 (after the Awami League had come to power) he had not gone directly to his village but to Narayanganj because he had been scared that if they found him they would do him harm.  He said that his wife and [child] were also in Narayanganj.  He said that it was only because of this political reason that he was afraid of returning to Bangladesh.  He said that he had invited some representatives of the Awami League to join the Jamaat-e-Islami in a gathering and that was why he had been targeted.  He said that he had probably missed this in his statutory declaration.

7. [The applicant] said that the date of his marriage was [in] January 2008 and that the date mentioned in his first application ([in] January 2007) was a mistake.  Questioned about the change in his claims between his primary application and his appearance before the Tribunal, [the applicant] said that what he was saying now was true.  He said that it was Ramadan and he had held the Koran when taking the oath.  He agreed that he had also said in his primary application that the claims in that application were true but he repeated that he had just done what he had been told to do.  The Tribunal put to him that this suggested that he was a person who was prepared to tell lies in order to get a visa.  [The applicant] said that it was one hundred per cent true that he had been involved in the Jamaat-e-Islami.  Asked why he had not deserted his ship when he had previously been to Australia [the applicant] said that he had not had shore leave and he had not known how to come out of the ship.

8. [The applicant’s] representative submitted that as a Bangladeshi ship deserter the applicant potentially faced five to six years in prison for having left his ship.  She submitted that whether Bangladeshi ship deserters formed a particular social group was undecided and she asked for time to make more detailed submissions on this issue.  She submitted that in the alternative this claim brought [the applicant] within the complementary protection criterion given the prison conditions in Bangladesh.  The Tribunal referred to information indicating that no one had been gaoled for deserting a Bangladeshi ship for at least 10 years.  [The applicant] said that it was true that he would face serious harm and torture if he returned to Bangladesh.

9. On 16 August 2012 [the applicant’s] representatives produced to the Tribunal copies of two documents in Bengali (together with translations), one from [a division] of the Islami Chhatra Shibir (translated literally as ‘Islamic Student Camp’) saying that [the applicant] had been a member of that organisation during his student life, and the other, dated [in] May 2012, from the [specified local] Branch of the Jamaat-e-Islami in [named district] adding that during his working life [the applicant] had been a responsible employee of the Jamaat-e-Islami.  In a submission dated 31 August 2012 [the applicant’s] representatives sought to establish that Bangladeshi ship deserters were a particular social group for the purpose of the Refugees Convention and that they would face serious or significant harm if they returned to Bangladesh.

10. [The applicant] was interviewed by the primary decision-maker in relation to his current application on 5 November 2014.  [The applicant]’s representative indicated that they sought to rely on the decision of Justice North in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (subsequently reversed by the High Court in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22). [The applicant] confirmed that he had got married in 2008, not in 2007. He said that he had met his wife through her uncle. He said that his wife was living on her own with their [child] but that his father sometimes went there to check things out. He said that his wife was working as [an Occupation 3].

11. [The applicant] said that he had left his employment with the [product] company due to his political problem.  He said that he had become involved in politics when he had been in Class [number].  He said that he had joined the Jamaat-e-Islami but when he had been a student he had chosen the Islami Chhatra Shibir, the student wing of the Jamaat-e-Islami.  He said that he had joined this party because he had liked their aims and policies.  He said that their aim was to live this life according to the teaching of the Qur’an and the Prophet and to be successful in the hereafter.  He said that his wife had not joined the party but she liked it.

12. [The applicant] said that he had been actively working in his area as a member of the Jamaat-e-Islami.  He said that during the chairman election in 2002 he had been the [office bearer].  He said that later on when he had moved to Dhaka he had still been attending the meetings and the demonstrations of the party.  He said that it had not been possible for him to go back to his home area because of the threats which they had made.  He said that [Mr A] was the chairman in his area.  [The applicant] said that he was not involved in politics in Australia.  The primary decision-maker put to [the applicant] that in August 2013 the Supreme Court in Bangladesh had disqualified the Jamaat-e-Islami from participating in the January 2014 elections.  [The applicant] said that they thought that the Jamaat-e-Islami was a religiously-motivated political party and the government did not want any party like that in the country.  He said that they also believed that some members of the party were war criminals.

13. The primary decision-maker put to [the applicant] that the Jamaat-e-Islami had been disqualified on the basis that its charter was unconstitutional because it prevented women from serving in political or bureaucratic positions.  [The applicant] said that he was aware of this policy but he said that there were many organisations in which female members of Jamaat-e-Islami held positions, for example the Islami Bank, Islami Bank Hospital, Ibn Sina Pharmaceutical and Ibn Sina Hospital.  The primary decision-maker put to [the applicant] that he did not appear to be a high profile member of the Jamaat-e-Islami who would be targeted for his political involvement if he returned to Bangladesh.  [The applicant] said that the present situation in Bangladesh was such that it did not really matter if you had a high profile or if you were just a regular member.  He said that they were putting everybody in gaol and within one week they had given three people death sentences.  He said that hundreds of members of the Jamaat-e-Islami were behind bars.

14. The primary decision-maker put to [the applicant] that his original claims had made absolutely no reference to his political opinion and that he had changed his claims only after he had applied to the Refugee Review Tribunal.  [The applicant] said that when he had first got here he had not known about the system.  He repeated his claim that he had told his original representative that he was from the Jamaat-e-Islami and that his representative had told him that this was a fundamentalist party and that if he mentioned anything about this party his application would not be accepted.  He said that he could not move freely in Bangladesh and it was not safe for him there.  He referred to his evidence that he had not been allowed to leave the ship on the occasions on which he had come to Australia before.

15. The primary decision-maker put to [the applicant] that the fact that he had deserted his ship in Australia was unlikely to lead to a gaol term in Bangladesh as distinct from a financial penalty.  [The applicant] said that after he had deserted the ship his father had been told by the shipping agent that they would put everybody in gaol including his father and all of his family members.  He asked how they were able to make such threats if there was no such law in place.  He conceded, however, that his father had not gone to gaol, nor had any members of his family, nor had his father had to pay a fine.  [The applicant’s] representative submitted that the law against desertion would be applied to [the applicant] in a discriminatory fashion for reasons of his political opinion because of his membership of the Jamaat-e-Islami.  He said that they accepted that the law was a law of general application.

16. [The applicant] said that every single member of the Jamaat-e-Islami was living in fear in Bangladesh and they were not able to carry out their activities openly any more.  He said that many others like him from his village were already in gaol.  He said that his father was just a supporter of the Jamaat-e-Islami and was not active.  [The applicant’s] representative submitted, with regard to the decision of the Bangladesh Supreme Court to disqualify the Jamaat-e-Islami from participating in the January 2014 elections, that the Supreme Court had found the party’s charter unconstitutional because women and non-Muslims could not hold positions within the party or that at least this was his understanding of the relevant policy.  He submitted that the 2014 election had not been fair, that the government did not have a true mandate from the people, that it had undermined the independence of the judiciary and that the decision of the Supreme Court had been a politically-motivated decision.

17. [The applicant’s] representative submitted that the Awami League government did not only target high profile political opponents - they targeted grassroots political activists - and that, because of the coalition between the Jamaat-e-Islami and the Bangladesh Nationalist Party (BNP), the Awami League was targeting members of both parties.  He submitted that considering this issue and the ship desertion issue cumulatively there was therefore a real chance that [the applicant] would be imprisoned.  He said that his understanding was that people who deserted ships would face up to five years in prison and he repeated his submission that this law would be applied in a discriminatory fashion to [the applicant].  He submitted that this also brought [the applicant] within the complementary protection criterion.  [The applicant] himself said that he wanted to live a better life only for his child and his wife.  He said that he was working in [an industry] in Australia.

18. In a submission to the Department dated 4 November 2014 [the applicant’s] representatives reiterated their submission that [the applicant] feared being persecuted for reasons of his political opinion as a supporter of the Jamaat-e-Islami and his membership of a particular social group as a Bangladeshi ship deserter.  They quoted from media reports and other sources in relation to the 2014 elections, politically-motivated violence and the human rights situation in Bangladesh.  They submitted that ‘Bangladeshi ship deserters’ were a particular social group, apparently on the basis that there was a law which made it an offence for a Bangladeshi seaman to desert a ship.  The reiterated their submission that although this was a law of general application it would be applied discriminatorily in [the applicant’s] case because of his political opinion in support of Jamaat-e-Islami and against the Awami League government.  With regard to complementary protection they submitted at paragraph 174 of their submission that [the applicant] faced a real risk of torture as a BNP member and supporter although this is not his claim.  They reiterated their submission that not only high profile opposition political leaders but also local level opposition political supporters and members faced serious harm from Awami League supporters.

19. Under cover of a letter to the Tribunal dated 17 May 2016 [the applicant’s] representatives produced three letters in support of his application: a letter on the letterhead of [Business 1] confirming that he had been employed as [an Occupation 1] from [March] 2004 until [January] 2007; a letter from the person with whom he has been living since his arrival in Australia, [Mr B], saying that to his knowledge from the student period [the applicant] was involved with Shibir ‘after it’s become jamaet-e-islami [sic]’; and a copy of a letter from [Mr C] who said that he had visited [the applicant’s] house in Bangladesh several times and that to his knowledge [the applicant] was involved with the Jamaat-e-Islami.

20. In a submission to the Tribunal dated 19 May 2016 [the applicant’s] representatives quoted from media reports and other sources in relation to arrests of leaders and activists of the BNP and the Jamaat-e-Islami, politically-motivated violence and the human rights situation in Bangladesh including extrajudicial killings targeting the political opposition.  They submitted that [the applicant] held views antithetic to the government and that there was therefore a real chance that he would be considered as an enemy of the Awami League government.  Under a heading referring to complementary protection they submitted that in addition to facing a real risk of significant harm due to his political opinion [the applicant] would also face significant harm as a result of deserting his ship.  They proceeded to quote Professor Hathaway (without providing the source of the quotation) suggesting that, where sanctions for illicit travel abroad were so severe that they effectively negated the fundamental right to leave and return to one’s country, there was a basis for a claim to refugee status.  Self-evidently this has nothing to do with penalties for ship desertion and [the applicant] has never been prevented from leaving or returning to Bangladesh.  They reiterated their submission that the law dealing with ship desertion would be applied discriminatorily in [the applicant’s] case due to his political opinion against the Awami League government.

21. [The applicant’s] representatives also submitted that imprisonment for up to five years was so severe and disproportionate as to undermine [the applicant’s] fundamental rights, citing the decision of the European Court of Human Rights in Norris v Ireland (Application no. 10581/83), but they did not explain how this was relevant to complementary protection.  They referred to information about prison conditions in Bangladesh and they submitted that the arbitrary deprivation of liberty was a violation of fundamental human rights.  Once again they did not explain how this was relevant to complementary protection.  They submitted that [the applicant] would be detained at the airport for breaching the maritime laws of Bangladesh, that he would be identified as a Jamaat activist and that he would face a real risk of significant harm, including torture and degrading or inhuman treatment in prison, because he would be considered a ship deserter holding a political opinion against the Awami League.

    Discussion of [the applicant’s] claims

22. At the hearing before me I first took evidence from [Mr B] who said that he had known [the applicant] in Bangladesh because [the applicant] was related to his wife.  He said that they came from the same area of Bangladesh and that he had visited [the applicant] in Bangladesh.  [Mr B] said that he himself had come to Australia in 1987 and that he had been back to Bangladesh every three or four years since then.  He said that he had seen [the applicant] when he had visited Bangladesh in 2009.  He confirmed that, as he had said in his letter, to his knowledge [the applicant] had been actively involved in the Islami Chhatra Shibir and subsequently in the Jamaat-e-Islami.  I asked [Mr B] if he knew anything of the sort of activities in which [the applicant] had been involved but he said that all he knew was that [the applicant] had been involved in some kind of activities.

1. [Mr B] said that when he had visited Bangladesh in 2009 [the applicant] had been living in [Village 1].  After I put to him that [the applicant] had said that at this time he had been living in Narayanganj with his wife and [child], [Mr B] said that this had been later on and that [the applicant’s] village was [Village 1].  He then said that when he had visited in 2009 [the applicant] had been living in both places because his parents lived in [Village 1].  He said that he had seen [the applicant] in [Village 1].  [Mr B] said that he himself had visited Bangladesh in 2013 and he had visited [the applicant’s] home.  He said that [the applicant’s] parents had told him that the police were looking for [the applicant] because he had been active in the Jamaat-e-Islami and at that time members of the Jamaat-e-Islami had been being arrested by the government.  He said that if [the applicant] returned to Bangladesh he would be at high risk given the situation in Bangladesh at the moment.

2. I next took evidence from [Mr C] who said that he had got married to someone from [the applicant’s] village in 1994 so at the end of 1994 he had got to know [the applicant’s] family because he had frequently visited his father-in-law’s place in the village.  He said that he had come to Australia in 1991 and he had gone back to Bangladesh to get married.  He said that he visited Bangladesh very frequently, at least three times a year.  He said, however, that he had not been back to [Village 1] since about 2002.  He confirmed that, as he had said in his letter, to his knowledge [the applicant] had been involved in the Jamaat-e-Islami in Bangladesh.  [Mr C] said that his wife knew [the applicant’s] family very well and that when he had visited Bangladesh he had also talked to [the applicant’s] wife in Narayanganj.  He said that he knew that [the applicant] was involved in the Jamaat-e-Islami and that he had been some sort of leader in his local area, [Village 1], although he said that he did not know exactly what his position had been.  He said that when he had last visited [Village 1] in 2002 [the applicant] had been there but he qualified this by saying that he mostly knew [the applicant’s] father and that at this time [the applicant] himself had been pretty young.

3. [Mr C] said that, since [the applicant] had come to Australia in 2011, every time he went to Bangladesh he visited [the applicant’s] wife and [child] in Narayanganj and took them some gifts.  He said that sometimes he talked to [the applicant’s] father over the telephone when he went back to Bangladesh.  He said that from what he had been told he knew that [the applicant’s] involvement in the Jamaat-e-Islami was very serious because he was a kind of leader in village politics and the opposing party and the police might be looking for him but he did not know why exactly.  He said that he knew from people that there would be a risk to [the applicant’s] life if he returned to Bangladesh.  He said that both [the applicant’s] wife and his father had told him that the police were looking for [the applicant].  He said that [the applicant’s] wife had told him that it would be hard for her to go to [Village 1] which was why she was staying in Narayanganj.  He said that there would be a risk to [the applicant’s] life from the opposing party and the Anti-Corruption Police who were looking for him because of his involvement as a local leader.  He said that to his knowledge a lot of people from the Jamaat-e-Islami had been killed and he said that this was why both [the applicant’s] wife and his father were very worried that if he returned to Bangladesh they might lose him too.  He said that [the applicant] was very honest and hard-working and he would support him to stay in Australia until it was safe for him to return to Bangladesh.

4. I next took evidence from [the applicant] himself.  He said that he had not had the assistance of an interpreter when he had prepared his current application for a protection visa and that he had only understood some of the questions.  He then said that he had been able to read and understand all the questions on the form and that so far as he was aware all the answers in the application were correct and complete.  He said that he had written the statutory declaration accompanying his application in Bengali and later on they had translated this into English.  He said that he had read the statutory declaration in English and he had understood it.  He said that it accurately reflected his claims for refugee status.

5. [The applicant] said that he had not met his wife before their marriage.  In contrast to the evidence of his witnesses he said that his wife’s family came from a different village but that this village came under the same police station area.  He said that his marriage had actually taken place in Narayanganj because his wife’s family lived in Narayanganj.  He said that his father-in-law worked in Dhaka and this was why his wife’s family lived in Narayanganj.  I put to [the applicant] that in the statement accompanying his first application for a protection visa he had said that he had met his wife at a friend’s house in Dhaka in September 2006.  [The applicant] said that his wife’s uncle was his friend and they had discussed his marriage.  He said that he did not remember lots of things.  He said in English that before he had met his wife he had sometimes talked with her by mobile telephone and that he had sometimes seen her.

6. I put to [the applicant] that what he was saying at the hearing before me seemed to be quite different from what he had said in the statement accompanying his first application.  [The applicant] said that this was a long time ago and that he could not remember.  I put to him that what he was telling me was that the marriage had been arranged between their families and that he had not actually met his wife until the day of the wedding.  I put to him again that in the statement accompanying his first application for a protection visa he had said that he had met his wife at a friend’s house in Dhaka in September 2006.  [The applicant] said that his wife’s uncle who had been his friend had acted as the mediator and this had been how the marriage had been arranged.  He said that before they had got married he had met his wife a few times as well as speaking to her by telephone.

7. I put to [the applicant] that in the statement accompanying his first application he had said that he and his wife had got married despite the opposition of her family.  [The applicant] said in English that his first application was not his true claim because his previous migration agent had said like this.  He said that at that time he had been very desperate.  Through the interpreter he said that the migration agent who had prepared his first application had advised him and had prepared the claims.  He said that his first application did not contain true claims.  I indicated that I understood that [the applicant] was now claiming that his previous migration agent had invented the claims made in that application but that I did not understand why he would have made up the claim that his wife’s family had opposed their marriage if his wife’s family had in fact fully supported their marriage.  [The applicant] said that he did not know and that his previous migration agent had prepared this application.  He said that he had told the agent that he was involved in the Jamaat-e-Islami but the agent had suggested that this was a fundamentalist group which he said was not true.

8. I asked [the applicant] when he had first become involved in the Jamaat-e-Islami.  He said that he had first become involved after completing his [degree] in [year].  He then said that before this he had been involved in the Chhatra Shibir and that this was part of the same organisation.  He said that he had joined the Chhatra Shibir in [year].  He said that he was sure that it had been in [year].  I put to him that in his statutory declaration he had said that he had been elected as a member when he had been in Class [number] which would have been in [a later year].  [The applicant] said that he had got involved when he had been in Year [number] but there were categories.  He said that first, when you liked the Chhatra Shibir, you joined the Chhatra Shibir, however to become a member you had to fulfil four conditions and you had to get involved with eight different activities.  He said that he had done this when he had been in Year [number].  I asked him what he had meant in that case when he had said in his statutory declaration that he had joined in [number].  [The applicant] said that he had filled out a form saying that he liked the Chhatra Shibir and that he intended to join.  He said that there were three categories in the Chhatra Shibir: worker, associate and member.  He then said that there were four categories: first when he had filled out the form saying that he liked the party and then worker.  I asked him if he was saying that he had become a worker in [year] or that he had just filled out a form.  [The applicant] said that he did not know exactly but he had been involved in the Chhatra Shibir and he knew that he had been a worker.

9. [The applicant] said that his father had been involved in the Jamaat-e-Islami but he had just been a supporter, not a member.  He said that no other members of his family had been involved.  He said that he himself had been involved in the Chhatra Shibir while he had been at school as well as when he had been at college and that he had continued his involvement at university.  I asked him what sort of activities he had been involved in at university.  [The applicant] simply referred (as he had in his statutory declaration) to the eight activities which members of the Chhatra Shibir are required to undertake.  I put to him that I was asking him about his activities as a member of the Chhatra Shibir while he had been at university.  [The applicant] simply said that he had been involved in all these activities.  He said that the Chhatra Shibir was also involved in the welfare of the community, for example if somebody was unable to study or buy books they would help them to buy books.

10. I asked [the applicant] if the Chhatra Shibir held meetings, for example.  He said that it did.  I noted that he had not mentioned this as yet.  [The applicant] said that he had attended meetings but he had not mentioned all of them as he could not remember.  I put to him that he had not mentioned any of them.  I asked him if the Chhatra Shibir held rallies.  [The applicant] said that he had mentioned that when he had joined the [product] company he had been involved in rallies but he had not mentioned his earlier involvement.  I indicated to him that I was not asking him to repeat what was in his statutory declaration: I was asking him to tell me things which were not in his statutory declaration.

11. I put to [the applicant] that the Australian Department of Foreign Affairs and Trade had provided some advice in relation to the Chhatra Shibir in 2000.  It had said that the Chhatra Shibir was particularly inclined to violence and that since its formation hundreds of students had been killed by armed Shibir activists in different academic institutions.  It had said that compared with the student wings of other political parties Shibir activists were regimented, unified and militant and that the organisation was alleged to maintain training camps in Chittagong and in the northern regions of Bangladesh.[6]  [The applicant] said that this was false information provided by the government.  He said that he had been involved with the Chhatra Shibir and they had never used arms or violence.

    [6] DFAT Country Information Report No. 34/00, dated 23 January 2000, CX39501.

12. I emphasised that the information to which I had referred was from the Australian Department of Foreign Affairs and Trade, nor from the Government of Bangladesh.  [The applicant] said that he had never seen any arms or anyone involved with arms.  He said that Chhatra Shibir workers had only been involved in violence in self-defence.  He then said that he did not know what was meant by violence and he said that he did not know if doing something in self-defence was violence.  I put to [the applicant] that student politics in Bangladesh was notoriously violent and that activists of the student wings of political parties were always attacking each other.[7]  [The applicant] said that he had been advised that he needed to protect himself, not to create some kind of disturbance.  He denied that he had been involved in any kind of violence when he had been a member of the Chhatra Shibir.  He said that he had protested by attending meetings and rallies when any of the workers of the Chhatra Shibir had been beaten or attacked.  He said that he had not seen any violence in these meetings when he had been there.

    [7] See, for example, DFAT Country Information Report No. 497/96, 2 April 1993, CX17304, and Amnesty International, ‘Briefing to political parties for a human rights agenda’, 23 October 2006, CX164047, both of which I consider relevant to the period when [the applicant] claims to have been involved in the student wing of the Jamaat-e-Islami.

13. [The applicant] confirmed that he claimed that after he had left university he had become a worker with the Jamaat-e-Islami.  I asked him if he had been involved in campaigning for the party at the parliamentary election in October 2001.  He said that he had been and that he had been involved in campaigning in [Village 1].  He said that there had been a Jamaat-e-Islami candidate in his local area but that this candidate had not been successful.  I put to him that there had not been a Jamaat-e-Islami candidate in his local area at the parliamentary election in October 2001.[8]  I put to him that I thought that if he had been campaigning in this election he would know this.  I noted that the candidate in his local area had been from the BNP which had been in an alliance with the Jamaat-e-Islami.[9]

    [8] [Source deleted.]

    [9] See ‘Bangladesh’ in Political Handbook of the World 2010 Online Edition, pages 110 and 114.

14. [The applicant] said that the Jamaat-e-Islami candidate had been [name] but he was not sure in which election he had been the candidate.  I put to him that the only parliamentary election at which he had been present had been the one in 2001 because he had said that he had been at sea at the time of the election in 2008.  [The applicant] said that he was not fully aware who had been the candidate at the election in 2001 but he had been fully involved in the party and he had been involved in many activities.  I put to him that the BNP candidate had won.  [The applicant] then said that they had worked for the BNP candidate.  I put to him that this was not what he had just told me.  [The applicant] said that he had been confused and he had not been sure whether there had been a candidate from the BNP or the Jamaat-e-Islami.  I put to him that I found this difficult to believe if he had been actively involved.  [The applicant] referred to the fact that he had taken an oath on the Qur’an and he confirmed that he claimed that he had been involved in the Jamaat-e-Islami.

15. I noted that [the applicant] had referred to his involvement in the elections for the chairman of the [Village 1] Union Parishad in 2002.  I noted that he had said that the Jamaat-e-Islami had won this election and that he had been threatened by a member of the Awami League, Mr [Mr A], as a result.  I put to [the applicant] that his party had been in government at the time at the national level[10] and I asked him why he had not been able to obtain protection from the police if he had been being threatened by Mr [Mr A].  [The applicant] said that not everyone asked for protection when they were threatened.  I put to him that he had said that this had been why he had had to move away from his village.  [The applicant] said that he had been fearful.  He said that even if he had asked the police for protection they would not have been able to provide him with protection and this had been why he had left his village.

    [10] See ‘Bangladesh’ in Political Handbook of the World 2010 Online Edition, page 110.

16. [The applicant] confirmed that after he had moved to Dhaka in March 2004 he had participated in meetings and rallies there.  After I referred to the fact that he had said that he had moved to Narayanganj in 2007 [the applicant] said that he had never lived in Narayanganj.  After I put to him that his current application said that he had lived there from March 2007 until October 2010 he said that probably this had been in his first application and he did not know what had happened.  I put to him that he had told me that everything in his current application was correct and complete.  [The applicant] said that he must have made a mistake because he was mentally unstable.  He said that he had in fact lived in [Village 1] and had visited his wife and [child] once a week.  He then said that he had been unable to live anywhere permanently and that he had only gone to [Village 1] to visit his parents.  He said that he had been travelling around.  He said that his wife lived with her parents in Narayanganj.  I asked him why he had not said at the Departmental interview that his wife lived with her parents.  [The applicant] responded that he was unable to say why he had not mentioned this at the interview.

17. I asked [the applicant] if he had had any involvement in the Jamaat-e-Islami since he had been in Australia.  He said that he had not.  He said that there was no reason for this but he was mentally very upset.  I asked him whether he would be involved in the Jamaat-e-Islami if he returned to Bangladesh.  [The applicant] said that he was not thinking in these terms.  He said that he did not know what would happen if he went back to Bangladesh so he was not contemplating on this issue.  He said that he was mentally very disturbed.  I asked him if he had sought treatment from a psychologist or psychiatrist while he had been in Australia.  He said that he had not.

18. I put to [the applicant] that I had difficulty in accepting that he had been involved in either the Jamaat-e-Islami or the Chhatra Shibir.  I put to him that he appeared to have memorised what was in his statutory declaration but that he appeared to be unable to expand on this in any way.  I put to him that when I had asked him about his activities in the Chhatra Shibir, for example, he had referred to the eight activities set out in his statutory declaration but he had not referred to his involvement in things like meetings or rallies.  I put to him that he had told me that he had been involved in campaigning for the Jamaat-e-Islami at the parliamentary election in October 2001 but he had not been aware that there had not been a Jamaat-e-Islami candidate in his local area at those elections nor that the BNP had won the election in his local area.

19. I put to [the applicant] that after the Awami League had come to power in the election in December 2008 he had travelled in and out of Bangladesh without difficulty and he had spent two periods, each of four months, living in Bangladesh.  I put to him that he had not suggested that anything had happened to him during these periods as a result of his claimed political involvement.  I put to [the applicant] that even if I were to accept that he had been involved in politics in Bangladesh the Australian Department of Foreign Affairs and Trade had said that supporters or members of political parties in Bangladesh were not at risk of being arrested or living in fear of political violence on a day-to-day basis due to their political affiliations.  It had said that opposition party members engaged in protest faced a low risk of being arrested.[11]  I noted that the Department had said that members with a higher profile might face a higher risk but I put to him that even if I were to accept his claims it did not appear that he could be described as having a high profile.

    [11] DFAT Country Report - Bangladesh, 20 October 2014, paragraph 3.55.

1. I noted that [the applicant’s] representatives had referred to the UK Home Office Country Information and Guidance - Bangladesh: Opposition to the government (February 2015) and I put to [the applicant] that I considered that the advice provided in that document was consistent with the assessment of the Australian Department of Foreign Affairs and Trade.  I put to him that the UK Home Office had said that membership or support of groups opposed to the current government did not of itself give rise to a well-founded fear of persecution in Bangladesh: it was necessary to take into account the nature of the applicant’s claimed political activity or profile, the extent to which they might have come to the adverse attention of the authorities and the reasons for that, the level and nature of their actual or perceived political involvement and their previous experiences in Bangladesh.[12]  I put to [the applicant] that, even if I were to accept his claims, it would be difficult for me to accept that there was a real chance or a real risk that he would be harmed for reasons of his political involvement if he returned to Bangladesh.

   [12] UK Home Office, Country Information and Guidance - Bangladesh: Opposition to the government, February 2015, paragraph 1.3.9.

2. [The applicant] said that at present every worker, leader and supporter of the Jamaat-e-Islami was leading a very fearful life in Bangladesh.  He said that he had also seen in the news that the police had arrested some workers and then the next day their bodies had been found.  He said that he was in fear here as well as a result of what was happening in Bangladesh.  He said that he knew what would happen if he went back to Bangladesh, that he was telling the truth and that he had been involved in the Jamaat-e-Islami.  He said that he wanted a peaceful life and he had a fear in his mind all the time about what would happen.  He referred to the fact that he was a ship deserter and he said that the authorities could arrest him, detain him and put up a case against him.  He said that they could also put a heavy fine on him.  He said that when he thought about all these things he tended to forget lots of things.

3. I indicated to [the applicant] that I was aware that he claimed that he feared that he would be imprisoned because he had deserted his ship if he went back to Bangladesh.  I put to him that neither he nor his representatives had produced any evidence to suggest that there was a real chance or a real risk that this would happen.  I put to him that, as he was aware, the information available to the Tribunal suggested that the penalties provided for in the law had never been enforced.[13]  I noted that his representatives had submitted that he would be detained at the airport if he returned to Bangladesh and that he would be treated differently from other people who had deserted their ships because of his involvement in the Jamaat-e-Islami.  I put to [the applicant] that his representatives had not referred to any evidence in support of this submission and that there was nothing in the evidence before me to suggest that the authorities in Bangladesh had any interest in him at all.  I noted in this context that he had renewed his passport at Bangladesh High Commission in Canberra [in] 2013[14] and I put to him that this suggested that he did not in fact fear the authorities in Bangladesh.

   [13] Zaki Ahad, ‘Woes of maritime education in Bangladesh’, The Financial Express, 22 August 2010, downloaded from accessed 26 November 2011; Email messages from Captain Zaki Ahad and Mr M A Matin of Haque & Sons, dated 29 November 2011.

   [14] See folio 56 of the Tribunal’s file 1419835.

4. I put to [the applicant] that the Australian Department of Foreign Affairs and Trade had said that people who returned to Bangladesh, whether voluntarily or involuntarily, were unlikely to face adverse attention on their return.  It had said that the return of failed asylum-seekers was unlikely to be reported by airport authorities to relevant government departments apart from the normal processes whereby the entry and exit of people from Bangladesh was recorded.[15]  I put to [the applicant] that I might conclude that there was not a real chance that he would be treated differently from anyone else who had deserted their ship and that any penalty which was imposed on him would be as the result of the non-discriminatory enforcement of a law which applied generally to everyone in Bangladesh.  I put to him that this would mean that one or more of the five reasons set out in the Refugees Convention which I had mentioned at the beginning of the hearing would not be the essential and significant reason for any harm which he feared.  I put to him that it would also mean for the purposes of the complementary protection criterion that the risk which he faced was one faced by everyone in Bangladesh and not by him personally.  [The applicant] said that he could not return to Bangladesh because he was not well mentally and he was always fearful.  He said that he could be gaoled in Bangladesh but he said that he did not know.  He asked how the Australian Government would come to know what had happened to him once he went there.  He said that he was always in tension and his brain was not functioning well due to this tension.  He referred again to the fact that he had taken an oath to tell the truth at the hearing and that he wanted a peaceful and a decent life.

   [15] DFAT Country Report - Bangladesh, 20 October 2014, paragraph 5.32.

5. I indicated to [the applicant] that I was going to give him some information which I considered would be the reason, or a part of the reason, for affirming the decision that was under review.  I indicated that I would explain the information to him so that he understood why it was relevant to the review.  I indicated to him that I would also explain the consequences of the information being relied upon in affirming the decision under review, that I would ask him to comment on or to respond to the information and that if he wanted additional time to comment on or to respond to the information he could tell me and I would then consider whether to adjourn the review to give him additional time.

6. I referred to the fact that, as had already been mentioned at the hearing, [the applicant] had made his first application for a protection visa on 12 May 2011.  I put to him that in that application he had made no mention of his claimed involvement in the Jamaat-e-Islami.  He had claimed that he had been involved in a Sufi sect called Maizbhandari.  He had said that he had been kicked out of his home by his father for this reason, that he had been attacked by a group of people while offering his prayers and that he had not been able to return to his village since 2004 for that reason.  I put to [the applicant] that he had also said that he had got married in January 2007, that (as we had discussed today) his wife’s family had opposed his marriage, that his employment at the [product] company had been terminated because of his religion and that he had had to leave Dhaka because he had been receiving threats from local people.

7. I put to [the applicant] that he had attended an interview in relation to his first application on 15 November 2011.  I put to him that he had been asked if he had ever provided false or misleading information to the Department and he had answered that he had not.  He had repeated the claims set out in his statement accompanying his first application and he had added many details that had not been referred to in that statement, for example with regard to what had happened when he had been attacked while he had been saying his prayers.  I referred to the fact that in his statutory declaration which he had made on 23 July 2012 he had said that these claims were not genuine and that he had made them at the insistence of his previous representative.  I also referred to the fact that when he had appeared before the Tribunal on 25 July 2012 he had said that at the interview he had said what he had been told to say.  I put to [the applicant] that this suggested that he had engaged in an elaborate deception of the Department in the hope that he would be granted a protection visa on what he now said was an entirely false basis.

8. I put to [the applicant] that all of this information was relevant to the review because it might lead me to conclude that he was someone who was prepared not to tell the truth if he believed that he would gain an advantage by doing that.  I put to him that if I relied on this information I might not accept that he was telling the truth about his claimed involvement in the Jamaat-e-Islami and the Chhatra Shibir.  I put to him that I might conclude that he had simply fabricated a new set of claims after he had failed to be granted a protection visa on the basis of his original claims.  I put to him that if I relied on this information it might form part of the reason for my concluding that he was not a person in respect of whom Australia had protection obligations and that he was therefore not entitled to be granted a protection visa.  [The applicant] said that he understood.  He said that he wanted more time to comment on or to respond to this information and it was agreed that he would have until 6 June 2016 to do this.  He said that when his first application had been prepared he had been extremely fearful.  He said that he had not wanted to establish something on the basis of lies and this was why he had amended these mistakes in his current statement.

9. [The applicant’s] representative submitted that the report of the Australian Department of Foreign Affairs and Trade in relation to Bangladesh was a year and a half old and since then there had been significant country information in relation to the situation in Bangladesh.  He submitted that the UK Home Office report to which they themselves had referred was more than one year old.  He said that they had provided the most recent country information on political violence in Bangladesh and they requested the Tribunal to consider whether the report of the Australian Department of Foreign Affairs and Trade was still relevant after one year because of the worsening of the situation in Bangladesh on the basis of the information which they had provided.  He submitted with regard to the ship deserter issue that this should be considered along with [the applicant’s] political activities as mentioned in their most recent submission.  He said that although the law was one of general application their submission was that [the applicant] would be targeted because of his political opinion and he submitted that the most recent country information which they had provided confirmed that political opponents in Bangladesh faced a real risk of significant harm.  He submitted that [the applicant] would face a real risk of significant harm or a real chance of persecution if he returned to Bangladesh.

10. In a statutory declaration made on 6 June 2016 [the applicant] said that he had deserted his ship in Australia to seek protection but that he had been completely new at the time and had not known how to seek protection.  He said that he had been introduced to the migration agent who had assisted him in making his first application through people in the Bengali community.  He said that he had told his then representative about his association with the Jamaat-e-Islami and the Chhatra Shibir but his representative had advised him not to mention this as the Jamaat-e-Islami was a terrorist organisation and if he mentioned his association with this organisation the Australian Government would immediately send him back to Bangladesh.  He said that his then representative had told him that he would write a story and he said that he had signed the statement written by his representative as he had had no other option.  He said that his representative had told him to maintain the same story at the Departmental interview and he said that in order to save his life he had had no option other than to follow his representative’s instructions.

11. [The applicant] said that his current representatives had told him that unless he told the truth to the Refugee Review Tribunal they would not assist him.  He said that at this time he had understood that the Jamaat-e-Islami was not a terrorist organisation under Australian law and he had been able to provide his true story about his involvement with the Jamaat-e-Islami and the Chhatra Shibir.  [The applicant] said that he regretted providing misleading information due to the insistence and false information provided by his first representative about the legal status of the Jamaat-e-Islami in Australia.  He said that in order to save his life he had been forced to continue with this misleading information but that as soon as he had realised his mistake he had told the first Tribunal about his association with the Jamaat-e-Islami.  He said that his association with the Jamaat-e-Islami was genuine and that he would face serious harm due to this association if he returned to Bangladesh.

    [The applicant’s] ability to participate effectively in the hearing

12. As referred to above, in the course of the hearing before me [the applicant] referred repeatedly to being mentally very upset or disturbed and he said that it was for this reason that he could not remember things.  However, as I put to him, it appeared that he had memorised what was in his statutory declaration made on 23 July 2012 but that it appeared that his problem was that he was unable to expand on this in any way.  [The applicant] said that he had not sought treatment from a psychologist or psychiatrist for his claimed problems.  I have considered whether [the applicant] had the capacity to participate in the hearing given his claimed problems although his claims in this regard are not supported by an opinion from an appropriately qualified professional.  I consider that [the applicant’s] answers were responsive to my questions and that he addressed the issues I raised with him in a way that indicated that he understood what was being put to him.  I therefore consider that he was able to participate effectively in the Tribunal hearing.

    Conclusions

13. As I put to [the applicant] in accordance with section 424AA of the Migration Act 1958, I consider it relevant that in his first application for a protection visa, made on 12 May 2011, he made no mention of his claimed involvement in the Jamaat-e-Islami.  He claimed that he had been involved in a Sufi sect called Maizbhandari.  He said that he had been kicked out of his home by his father for this reason, that he had been attacked by a group of people while offering his prayers and that he had not been able to return to his village since 2004 for that reason.  He also said that he had got married in January 2007, that his wife’s family had opposed his marriage, that his employment at the [product] company had been terminated because of his religion and that he had had to leave Dhaka because he had been receiving threats from local people.

14. As I put to [the applicant], he attended an interview in relation to his first application on 15 November 2011.  He was asked if he had ever provided false or misleading information to the Department and he answered that he had not.  He repeated the claims set out in his statement accompanying his first application and he added many details that were not referred to in that statement, for example with regard to what he claimed had happened when he had been attacked while he had been saying his prayers.  In his statutory declaration which he made on 23 July 2012, however, he said that these claims were not genuine and that he had made them at the insistence of his previous representative.  When he appeared before the Tribunal on 25 July 2012 he said that at the interview he had said what he had been told to say.

15. At the hearing before me [the applicant] said in response to this information that when his first application had been prepared he had been extremely fearful.  He said that he had not wanted to establish something on the basis of lies and this was why he had amended these mistakes in his current statement.  In his statutory declaration made on 6 June 2016 he repeated that, as he had said at the hearing before the Tribunal in relation to his first application and again when he was interviewed in relation to his current application and at the hearing before me, he had told his original representative that he had been involved with the Jamaat-e-IsIami.  Where he had said previously that his representative had told him that this was a fundamentalist group he now said that his representative had told him that it was a terrorist organisation and that if he mentioned his association with this organisation the Australian Government would immediately send him back to Bangladesh.

16. [The applicant] said that he had signed the statement written by his representative as he had had no other option and that he had likewise had no option other than to follow his representative’s instructions to maintain the same story at the Departmental interview.  He said that in order to save his life he had been forced to continue with this misleading information.  I consider, however, that [the applicant] clearly did have other options: no one forced him to sign a statement which he now says was fabricated by his then representative nor did anyone force him to maintain the same story when he was interviewed by the Department.  Moreover, as I put to [the applicant] in the course of the hearing before me, he did not just maintain the same story: he embellished it, adding in details that were not referred to in that statement.  As I put to [the applicant], I consider that his own evidence suggests that he engaged in an elaborate deception of the Department in the hope that he would be granted a protection visa on what he now says was an entirely false basis.  I consider that this suggests that he is someone who is prepared not to tell the truth if he believes that he will gain an advantage by doing this and I do not accept that, as he claimed, he had no other option or that he was forced not to tell the truth.  As I put to him, I consider that his admission that the claims which he made in support of his first application were fabricated casts doubt on whether he is telling the truth about his claimed involvement in the Jamaat-e-Islami and the Chhatra Shibir.  As I put to him, I may conclude that he simply fabricated a new set of claims after he failed to be granted a protection visa on the basis of his original claims.

17. As I put to [the applicant], I consider that there are also other reasons for concluding that he was not involved in either the Jamaat-e-Islami or the Chhatra Shibir.  As I put to him, while he appeared to have memorised what was in his statutory declaration made on 23 July 2012, he appeared to be unable to expand on this in any way.  As I put to him, when I asked him about his activities in the Chhatra Shibir, for example, he referred to the eight activities set out in his statutory declaration but he did not refer to his involvement in things like meetings or rallies.  When he did refer to such activities it was only to repeat what he had said in his statutory declaration about participating in protests when any workers of the Chhatra Shibir were attacked or killed and taking part in meetings and rallies when he was living and working in Dhaka.  As I put to him, he told me that he had been involved in campaigning for the Jamaat-e-Islami at the parliamentary election in October 2001 but he clearly was not aware that there had not been a Jamaat-e-Islami candidate in his local area at those elections nor that the BNP had won the election in his local area until I told him this.  I have taken into account [the applicant’s] claim that he was mentally very upset or disturbed and that this made him forget a lot of things.  However, as I put to him, I consider that, if he had been actively involved in campaigning at the election in October 2001 as he claimed, he would have remembered these very basic facts.

1. As I likewise put to [the applicant], although he claimed in his statutory declaration made on 23 July 2012 that Awami League supporters and members continued to harass and harm their political opponents including the Jamaat-e-Islami and that he feared that if he returned to Bangladesh he would be targeted and harmed because of his political affiliation as an active worker of the Jamaat-e-Islami, he has said that after the Awami League came to power at the election in December 2008 he travelled in and out of Bangladesh without difficulty and he spent two periods, each of four months, living in Bangladesh.  As I put to him, he has not suggested that anything happened to him during these periods as a result of his claimed political involvement.  Having given careful consideration to all of the evidence before me I do not accept that [the applicant] is telling the truth with regard to his claimed involvement in the Jamaat-e-Islami and its student wing, the Islami Chhatra Shibir.  I give greater weight to the problems I have with [the applicant’s] own evidence which I have outlined above than I do to the documents which he has produced and the evidence of the two witnesses, [Mr B] and [Mr C].  I do not accept that [the applicant] was actively involved in either the Chhatra Shibir or the Jamaat-e-Islami in Bangladesh nor do I accept that he ever had any problems as a result of his political opinion in Bangladesh.  I consider that he fabricated his claims regarding his political involvement after his original claims were rejected and I note for the sake of completeness that I accept that these original claims were likewise a fabrication.  [The applicant] said at the hearing before me that he had not been involved in the Jamaat-e-Islami in Australia and that he was not contemplating whether he would be involved if he returned to Bangladesh.  Having regard to my rejection of his claims regarding his past political involvement in Bangladesh I do not accept that there is a real chance that he will be involved with the Jamaat-e-Islami or that he will be persecuted for reasons of his political opinion if he returns to Bangladesh now or in the reasonably foreseeable future.

2. I accept that [the applicant] deserted a ship in Australia.  As referred to above, his representatives have submitted that Bangladeshi ship deserters are a particular social group for the purposes of the Refugees Convention, apparently on the basis that there is a law which makes it an offence for a Bangladeshi seaman to desert a ship.  They have previously submitted in other cases that in Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23 the Federal Court accepted that ‘Bangladeshi ship deserters’ were a particular social group. However Perram J (with whom Moore J agreed) stressed at paragraph [44] in SZNWC that the Tribunal (differently constituted) had determined in that case that a particular social group of ‘Bangladeshi ship deserters’ existed and this finding was not challenged by the Minister in the Federal Court.  Because there was no argument as to whether this finding was correct, I consider that this case does not stand as legal authority for the proposition that ‘Bangladeshi ship deserters’ constitute a ‘particular social group’ for the purposes of the Refugees Convention.

3. In Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at [36], Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of a particular social group:

   ‘First, the group must be identifiable by a characteristic or attribute common to all members of the group.  Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution.  Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large.  Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group".’

4. Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country.  However it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared for reasons of the person’s membership of the particular social group.

5. The courts have drawn a distinction between persecution for reasons of membership of a particular social group and persecution for reasons of some act that a person has done.  They have said that a particular social group cannot be defined by reference to the sole criterion that its members are all those who have done an act of a particular character (see Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 per Black CJ (with whom French J agreed) at 405 and see also Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 per Burchett J (with whom O’Loughlin and R D Nicholson JJ agreed) at 569). The courts have also said that where a law applies to all members of society it cannot create a particular social group consisting of all those who bring themselves within the terms of the law. Thus someone who breaks the traffic laws, for example, is not being persecuted for reasons of their membership of a particular social group if they are penalised for that breach (see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Dawson J at 242-243).

6. I accept that, as Dawson J said in Applicant A, cited above, at 242-243, ‘[t]he distinction between what a person is and what a person does may sometimes be an unreal one’ and that, for example, the pursuit of an occupation may equally be regarded as what a person is and what a person does. I likewise accept that, as Black CJ (with whom French J agreed) said in Morato, cited above, at 406, ‘the part played by acts done, or assumed to have been done, by those who are said to constitute a particular social group can give rise to difficult questions’, meaning that the activities of the members of an asserted group are not necessarily irrelevant. The actions of the persecutors may serve to identify or even cause the creation of a ‘particular social group’ (see Applicant A, cited above, per McHugh J at 264) and views held within the community about people who belong to the suggested group may be relevant.  It may also be necessary to examine cultural, social, religious or legal factors to come to a conclusion whether a group is a ‘particular social group’ (see Applicant S, cited above, at [27] to [35] per Gleeson CJ, Gummow and Kirby JJ). However, although there is a law dealing with ship desertion in Bangladesh, I do not accept on the evidence before me that the fact that there is such a law has caused ship deserters in Bangladesh to become a group distinguished or set apart from society at large, as required by the third element of the test set out in Applicant S, quoted above, at [36] per Gleeson CJ, Gummow and Kirby JJ. The courts have said that it may be that, over a period of time, and in particular circumstances, individuals who have engaged in similar actions can become a cognisable social group (see Morato, referred to above, per Black CJ (with whom French J agreed) at 406).  However there is nothing in the evidence before me to suggest that ship deserters have, over time, become such a cognisable social group in Bangladesh.

7. As referred to above, [the applicant’s] representatives have also submitted that, although the law dealing with ship desertion in Bangladesh is a law of general application, it will be applied discriminatorily in [the applicant’s] case because of his political opinion in support of Jamaat-e-Islami and against the Awami League government. For the reasons given above I do not accept that [the applicant] was involved in the Jamaat-e-Islami in Bangladesh nor do I accept that he ever had any problems as a result of his political opinion in Bangladesh. I therefore do not accept that there is a real chance that the law dealing with ship desertion in Bangladesh will be applied discriminatorily in his case because of his political opinion in support of Jamaat-e-Islami or against the Awami League government as submitted by his representatives. I consider that any action taken against [the applicant] under the law relating to ship desertion will be the result of the non-discriminatory enforcement of a law which applies generally to everyone in Bangladesh and I therefore do not accept that one or more of the five Convention reasons is the essential and significant reason for any persecution which he fears in this context as required by paragraph 91R(1)(a) of the Migration Act.

8. In their submission to the Tribunal dated 19 May 2016 [the applicant’s] representatives quoted Professor Hathaway (without providing the source of the quotation) suggesting that, where sanctions for illicit travel abroad were so severe that they effectively negated the fundamental right to leave and return to one’s country, there was a basis for a claim to refugee status.  As I have observed above, self-evidently this has nothing to do with penalties for ship desertion and [the applicant] has never been prevented from leaving or returning to Bangladesh.  As I put to him, there is nothing in the evidence before me to suggest that the authorities in Bangladesh have any interest in him at all.  As I likewise put to him, the fact that he renewed his passport at Bangladesh High Commission in Canberra [in] 2013 suggests that he does not in fact fear the authorities in Bangladesh.  As I also put to [the applicant], the Australian Department of Foreign Affairs and Trade has said that people who return to Bangladesh, whether voluntarily or involuntarily, are unlikely to face adverse attention on their return.  It has said that the return of failed asylum-seekers is unlikely to be reported by airport authorities to relevant government departments apart from the normal processes whereby the entry and exit of people from Bangladesh is recorded.[16]  Having regard to the advice of the Australian Department of Foreign Affairs and Trade I do not accept that there is a real chance that [the applicant] will be persecuted for reasons of any political opinion imputed to him because he has sought asylum in Australia or his membership of the particular social group of failed asylum-seekers.

   [16] DFAT Country Report - Bangladesh, 20 October 2014, paragraph 5.32.

9. [The applicant] said that he could not return to Bangladesh because he was not well mentally and he was always fearful.  However, as referred to above, he said that he had not consulted a psychologist or a psychiatrist and his claims that he is mentally disturbed are not supported by any evidence from an appropriately qualified professional.  I do not accept on the evidence before me that any problems which he may have because of his mental health are so severe or so detrimental in their effect as to amount to ‘persecution’ for the purposes of the Refugees Convention.  If it were to be necessary for me to consider [the applicant’s] application under the Refugees Convention, therefore, I would conclude for the reasons given above that he does not have a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Bangladesh now or in the reasonably foreseeable future.  As referred to above, however, in accordance with the most recent decision of Federal Court, the Tribunal can only consider [this] application under the complementary protection criterion.

   Are there 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?

10. Having regard to my findings of fact above I do not accept that [the applicant] was actively involved in either the Chhatra Shibir or the Jamaat-e-Islami in Bangladesh nor do I accept that he ever had any problems as a result of his political opinion in Bangladesh.  I consider that he fabricated his claims regarding his political involvement after his original claims were rejected and I note for the sake of completeness that I accept that these original claims were likewise a fabrication.  [The applicant] said at the hearing before me that he had not been involved in the Jamaat-e-Islami in Australia and that he was not contemplating whether he would be involved if he returned to Bangladesh.  Having regard to my rejection of his claims regarding his past political involvement in Bangladesh I do not accept 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 be involved with the Jamaat-e-Islami or that he will suffer significant harm because of his claimed political involvement.

11. I accept that [the applicant] deserted a ship in Australia.  I accept that, as submitted by [the applicant’s] representatives, under section 196 of the Bangladesh Merchant Shipping Ordinance 1983 desertion is punishable by imprisonment for a maximum term of five years’ imprisonment and a fine of up to one million taka.  The Shipping Master may also cancel the Continuous Discharge Certificate (CDC) of any deserting seaman and may ban the deserting seaman from the seafaring profession and from any government service in Bangladesh and the state may also forfeit the properties of the deserting seaman excluding inherited properties.  [The applicant’s] representatives submitted that imprisonment for up to five years was so severe and disproportionate as to undermine [the applicant’s] fundamental rights, citing the decision of the European Court of Human Rights in Norris v Ireland (Application no. 10581/83).  They also referred to information about prison conditions in Bangladesh and they submitted that the arbitrary deprivation of liberty was a violation of fundamental human rights.  They submitted that [the applicant] would be detained at the airport for breaching the maritime laws of Bangladesh, that he would be identified as a Jamaat activist and that he would face a real risk of significant harm, including torture and degrading or inhuman treatment in prison, because he would be considered a ship deserter holding a political opinion against the Awami League.  However, having regard to my findings of fact above, I do not accept that there is a real risk that [the applicant] will be identified as a Jamaat activist or that he will be considered a ship deserter holding a political opinion against the Awami League as submitted by his representatives.

12. As I put to [the applicant], neither he nor his representatives have produced any evidence to suggest that there is a real risk that he will be imprisoned because he deserted his ship in Australia if he goes back to Bangladesh.  As I put to him, the information available to the Tribunal suggests that the penalties provided for in the law have never been enforced.  It suggests that deserting seamen returning to Bangladesh have been arrested and released on bail but that they have never been imprisoned.  It suggests that the government shipping office has taken action to cancel their CDCs and to forfeit guarantee money held by the shipping office.[17] I do not accept on the evidence before me 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 be imprisoned, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined as a result of his having deserted his ship. [The applicant] said that they could also put a heavy fine on him but I do not accept on the evidence before me that the fact that he may be liable to pay a fine of up to one million taka, that he may no longer be able to work on board ships because his CDC will be cancelled or that he may have forfeited any guarantee money held by the shipping office amounts to significant harm as defined in subsection 36(2A) of the Migration Act.

    [17] Zaki Ahad, ‘Woes of maritime education in Bangladesh’, The Financial Express, 22 August 2010, downloaded from accessed 26 November 2011; Email messages from Captain Zaki Ahad and Mr M A Matin of Haque & Sons, dated 29 November 2011.

13. Furthermore, as I likewise put to [the applicant], I consider that any penalty imposed on him as a result of his deserting his ship will be the result of the non-discriminatory enforcement of a law which applies generally to everyone in Bangladesh and that this risk therefore falls within the exception provided for in paragraph 36(2B)(c) of the Migration Act in that it is one faced by the population of the country generally and not by [the applicant] personally.[18] Having regard to my findings of fact above, therefore, I do not accept 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 subsection 36(2A) of the Migration Act because he deserted his ship in Australia.

    [18] See SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [11]-[13] per Rares J.

14. As I put to [the applicant], there is nothing in the evidence before me to suggest that the authorities in Bangladesh have any interest in him and I consider that the fact that he renewed his passport at Bangladesh High Commission in Canberra [in] 2013 suggests that he does not in fact fear the authorities in Bangladesh.  As I put to him, the Australian Department of Foreign Affairs and Trade has said that people who return to Bangladesh, whether voluntarily or involuntarily, are unlikely to face adverse attention on their return.  It has said that the return of failed asylum-seekers is unlikely to be reported by airport authorities to relevant government departments apart from the normal processes whereby the entry and exit of people from Bangladesh is recorded.[19]  Having regard to the advice of the Australian Department of Foreign Affairs and Trade I do not accept 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 because he will be returning to Bangladesh as a failed asylum-seeker.

    [19] DFAT Country Report - Bangladesh, 20 October 2014, paragraph 5.32.

15. [The applicant] said that he could not return to Bangladesh because he was not well mentally and he was always fearful. However, as referred to above, he said that he had not consulted a psychologist or a psychiatrist and his claims that he is mentally disturbed are not supported by any evidence from an appropriately qualified professional. I do not accept on the evidence before me that there is a real risk that any problems which he may have because of his mental health will amount to significant harm as defined in subsection 36(2A) of the Migration Act. I do not accept on the evidence before me, therefore, 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 subsection 36(2A) of the Migration Act.

    CONCLUSIONS

16. For the reasons given above I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in paragraph 36(2)(a) or (aa) of the Migration Act for a protection visa. There is no suggestion that he satisfies subsection 36(2) on the basis of being a member of the same family unit as a person who satisfies paragraph 36(2)(a) or (aa) and who holds a protection visa. Accordingly, [the applicant] does not satisfy the criterion in subsection 36(2) for a protection visa.

    DECISION

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Giles Short
   Senior Member

   
   

   ATTACHMENT A - RELEVANT LAW

2. In accordance with section 65 of the Migration Act 1958, the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. As applicable to this application subsection 36(2) of the Act provided that:

   ‘(2)  A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa)a non citizen in Australia (other than a non citizen mentioned in paragraph (a)) 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 non citizen being removed from Australia to a receiving country, there is a real risk that the non citizen will suffer significant harm; or

   (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)a non citizen in Australia who is a member of the same family unit as a non citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.’

   Refugee criterion

3. Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’.  Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.  Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a 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.’

4. The time at which this definition must be satisfied is the date of the decision on the application: Minister for Immigration and Ethnic Affairs v Singh (1997) 72 FCR 288.

5. The definition contains four key elements.  First, the applicant must be outside his or her country of nationality.  Secondly, the applicant must fear ‘persecution’.  As applicable to this application subsection 91R(1) of the Act stated that, in order to come within the definition in Article 1A(2), the persecution which a person feared must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.  Subsection 91R(2) stated that ‘serious harm’ included a reference to any of the following:

   (a)a threat to the person’s life or liberty;

   (b)significant physical harassment of the person;

   (c)significant physical ill-treatment of the person;

   (d)significant economic hardship that threatens the person’s capacity to subsist;

   (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

6. In requiring that ‘persecution’ must involve ‘systematic and discriminatory conduct’ subsection 91R(1) reflected observations made by the Australian courts to the effect that the notion of persecution involves selective harassment of a person as an individual or as a member of a group subjected to such harassment (Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388, McHugh J at 429). Justice McHugh went on to observe in Chan, at 430, that it was not a necessary element of the concept of ‘persecution’ that an individual be the victim of a series of acts:

   ‘A single act of oppression may suffice.  As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention.’

7. ‘Systematic conduct’ is used in this context not in the sense of methodical or organised conduct but rather in the sense of conduct that is not random but deliberate, premeditated or intentional, such that it can be described as selective harassment which discriminates against the person concerned for a Convention reason: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [89] - [100] per McHugh J (dissenting on other grounds). The Australian courts have also observed that, in order to constitute ‘persecution’ for the purposes of the Convention, the threat of harm to a person:

   ‘need not be the product of any policy of the government of the person’s country of nationality.  It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution’ (per McHugh J in Chan at 430; see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 233, McHugh J at 258)

8. Thirdly, the applicant must fear persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’.  Subsection 91R(1) of the Act provided that Article 1A(2) did not apply in relation to persecution for one or more of the reasons mentioned in that Article unless ‘that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution’.  It should be remembered, however, that, as the Australian courts have observed, persons may be persecuted for attributes they are perceived to have or opinions or beliefs they are perceived to hold, irrespective of whether they actually possess those attributes or hold those opinions or beliefs: see Chan per Mason CJ at 390, Gaudron J at 416, McHugh J at 433; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.

9. Fourthly, the applicant must have a ‘well-founded’ fear of persecution for one of the Convention reasons.  Dawson J said in Chan at 396 that this element contains both a subjective and an objective requirement:

   ‘There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear.  Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.’

10. A fear will be ‘well-founded’ if there is a ‘real chance’ that the person will be persecuted for one of the Convention reasons if he or she returns to his or her country of nationality: Chan per Mason CJ at 389, Dawson J at 398, Toohey J at 407, McHugh J at 429.  A fear will be ‘well-founded’ in this sense even though the possibility of the persecution occurring is well below 50 per cent but:

    ‘no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.  A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’ (see Guo, referred to above, at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ)

    Complementary protection criterion

11. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out as relevant to this application above.  The Full Court of the Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention as referred to above (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed). ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A) of the Act: see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.

    Ministerial direction

12. In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘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.

    Credibility

13. As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):

    ‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)

14. As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:

    ‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’

15. If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.