1419934 (Refugee)

1419934 (Refugee) [2016] AATA 4155 (18 July 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1419934
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Linda Symons
DATE:18 July 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 18 July 2016 at 4:16pm
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia by boat [in] December 2012. He was detained and subsequently issued with a Bridging visa [in] February 2013. This visa expired [in] April 2013 and he thereafter became an unlawful non-citizen. [In] June 2013, he was granted a further Bridging visa in association with his application for a Protection visa.
The applicant applied to the Department of Immigration and Border Protection (the Department) for the Protection visa [in] April 2013 and the delegate refused to grant the visa [in] November 2014. On 5 December 2014, he applied to the Tribunal for review of that decision.
The applicant appeared before the Tribunal on 22 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The issues that arise on review are whether Australia has protection obligations to the applicant under the Refugees Convention or under the complementary protection criterion.
RELEVANT LAW
The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The applicant’s claims in his application for a Protection visa are summarised as follows:
·He is a citizen of Bangladesh. He is Bengali and a Muslim.
·He was born on [date] in [his home] village. He attended High School and undertook some vocational studies. He worked from [year] to 2011 [at an occupation].
·His father was involved with the BNP and so is he. He is a supporter and “ground level member” of the Bangladesh Nationalist Party (BNP). He used to attend rallies, meetings and demonstrations in his area along with about 100 to 200 other BNP supporters from his area.
·His late father was a supporter of the BNP. He died in a road accident in [year]. He was murdered by the local Awami League (AL) leader. He learned from a passer-by, who witnessed what happened, that his father was riding his [vehicle 1] on the road when 2 people in another vehicle passed him. One of the people in the other vehicle pushed his father off his [vehicle 1] and he fell onto the road. Another person on a motor cycle ran over his father crushing his head. The person who did this, according to the witness, was the local AL leader called [name]. Because of his position in society, there was nothing they dared to do. The Police treated it like an accident. This man is very involved in politics presently and he is the right hand man to the local AL Member of Parliament.
·His father’s death was part of the reason why he left Bangladesh. After what happened to him later, he did not want to be killed like his father.
·He worked for the BNP. In October 2012, he was part of a group building a stage for a BNP rally. They had permits from the local Police to build the stage and conduct the rally. Some AL supporters attacked them and destroyed the stage. The Police did nothing about it. He was not harmed personally on this occasion.
·The following day a group of them gathered in public to protest against the attack. The Police took [a number] of them to the local Police Station. He was detained for an hour. During that time, some AL members went to the Police Station and threatened them in front of the Police. They said things like “If I see you again I will kill you. You will be ‘disappeared’. They were then beaten by the Police. He begged one of the Police officers, who was a distant [relative], to release him and was told he would have to bear it as he could not help him.
·He saw his colleagues being tortured. One of them was shot in the leg and another was beaten until he was nearly crippled. One of the Police officers told him “now you know the consequences of being anti-government. See what awaits you”.
·He was also beaten but not as badly as his colleagues. He pleaded and offered money to the Police officer who was related to him and was treated favourably. His distant [relative] told him that he was not able to do much and he must leave the country immediately or risk being killed. His distant [relative] told him that he could help him to get released but he had to escape from Bangladesh and if he was arrested again his distant [relative] could lose his job.
·The other Police officers threatened them saying they would be ‘disappeared’ and might be framed with false charges that were so serious that they would remain in gaol for the rest of their lives. He was the only one to be released. His distant [relative] helped him to negotiate a bribe. His superiors demanded [amount] taka but his distant relative negotiated it down to [half the amount]. His distant [relative] advised him to leave Bangladesh but not to leave legally. He had a passport at that time but it was confiscated from his home by the Police during his arrest.
·Two people in the group of [number] have died and he is not aware of what has happened to the rest. He went to Chittagong so that he could leave Bangladesh illegally. He travelled by boat to [another country] and by boat to Australia.
·He fears returning to Bangladesh because the authorities and/or members of the AL will kill him because of his association and his family’s association with the BNP. This is what happened to his father. The political situation is getting worse.
·The authorities cannot protect him as they are in league with the AL. They just obey the ruling party.
·He cannot relocate safely to anywhere in Bangladesh for the long term.
The applicant has provided to the Department copies of his Bangladeshi Birth Certificate, his Citizenship Certificate, his Secondary School Certificate and his Bangladeshi Driver’s Licence.
The applicant attended an interview with the Department [in] September 2014 in relation to his application for a Protection visa. During the interview, he re-iterated and expanded on his written claims. There were some inconsistencies in his evidence which are referred to below.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated [in] November 2014, country information on Bangladesh, a letter from the BNP dated [in] August 2010, a document titled ‘The fully elected Committee of Bangladesh National Chhatradal of [District 1] thana 2002’, a copy of a card with a photograph of him (without an English translation), a copy of a card titled ‘Bangladesh Nationalist Chattadal, the section of [District 1]’, and a Statutory Declaration by himself dated 10 February 2016. In his Statutory Declaration, he made the following new claims:
·He started visiting the local BNP office with his father from the age of 12 years.
·In 1997, as a student, he became an activist in the BNP. He had a BNP card at the time but no longer has it.
·In 2003, he was appointed [Office Bearer 1] of the BNP. He attached a copy and translation of his 2003 BNP Membership Card which he claimed was signed [in] June 2003. This was sent to him by his [sibling] after the Department refused his visa application.
·He provided Bengali and English versions of a letter signed by [Mr A], BNP [District 1] Branch President and others dated [in] August 2010 which stated that he joined the BNP in 1997.
·It did not cost any money to obtain membership of the BNP. Only BNP members could attend official party meetings and vote at the meetings. This was one of the reasons he joined the BNP rather than just being a supporter.
·In 2002, he was elected to the BNP Student Committee. He was the [Office Bearer 2]. It was his responsibility to organize rallies and meetings in his local area. His [sibling] obtained a copy of the 2002 BNP Student Committee list after his interview with the Department.
·He initially worked as a simple worker. After he started working with the Member of Parliament (MP) he was promoted to a different role and was a local [Office Bearer 1]. There were a few groups that he looked after as a local [Office Bearer 1]. He used to accompany the MP to meetings and rallies when the BNP was in power.
·Throughout this time he had a job for a company called [name] where he made [products]. On the weekends, he worked for the party from morning to evening and sometimes into the night. He followed the orders of the BNP MP and distributed leaflets about meetings and rallies. They would gather together before and after BNP events at the office in [District 1]. He assisted the MP and sometimes had his photograph taken with the MP.
·The functions of the BNP changed in 2006 when they were no longer in government. However, he continued as a member of the BNP organizing meetings and rallies and promoting the BNP.
·He joined the BNP because he likes its activities and it always tries to improve the country. The BNP was not corrupt like the current AL government. There is no freedom of speech under the current AL government.
·He referred to the BNP leader, Khaleda Zia, being prevented from leaving the BNP office in Dhaka in January 2015 and her car being shot at and stoned when she was campaigning in 2015. He referred to a senior BNP politician being executed for war crimes in 2015.
·He stated that after he left Bangladesh many BNP activists have been arrested and many of them have fled to India.
·He is aware that there are some inconsistencies in his evidence. The lawyer who prepared his statement did so over the telephone and did not ask him for many details about his experiences in Bangladesh as a member of the BNP. He answered questions asked of him.
·He fears that if he returns to Bangladesh the authorities will be waiting for him. He was told by the Police that he would be charged with criminal offences. These are based on false allegations by the Police.
·He is fearful that as a BNP member he is at risk of disappearing. There is a trend where known BNP members are kidnapped or vanish without trace.
On 26 February 2016, the Tribunal wrote to the applicant informing him that it had considered the material before it but was unable to make a favourable decision on that information alone and inviting him to appear before it on 22 April 2016 to give evidence and present arguments relating to the issues arising in his case. This letter was sent to the applicant by email, as requested by him, on 26 February 2016. The email was not returned undelivered.
The applicant did not respond to the hearing invitation as requested. On 15 April 2016, the Tribunal sent the applicant a message by SMS to his mobile telephone reminding him of the hearing on 22 April 2016. The Tribunal did not receive a response. On 21 April 2016, the Tribunal sent the applicant another message by SMS to his mobile telephone reminding him of the hearing on 22 April 2016.
On 21 April 2016, the applicant contacted the Tribunal and requested an adjournment of the hearing to enable him to obtain legal advice. The Tribunal considered this request and denied it for a number of reasons. Firstly, the application for review was lodged with the Tribunal on 5 December 2014. The applicant had 1 year and 4 months to obtain legal advice prior to the hearing. Secondly, he had already obtained legal advice and filed further evidence with the Tribunal in the form of a Statutory Declaration by himself dated 10 February 2016, which had been prepared by a lawyer, and supporting documents. Thirdly, the hearing invitation was sent to him by email on 26 February 2016, as requested, and was not returned undelivered. He had plenty of notice of the hearing and time to obtain further legal advice if he wished to do so prior to the hearing.
Following the hearing, the Tribunal delayed finalizing the review. However, the applicant did not provide any further evidence or post hearing submissions to the Tribunal.
Nationality
The Tribunal finds that the applicant is a citizen of Bangladesh, based on his Bangladeshi Birth Certificate, his Citizenship Certificate, his evidence and his fluency in the Bengali language, and will assess his claims on this basis. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.
Does Australia have protection obligations to the applicant under the Refugees Convention?
The applicant gave evidence to the Tribunal that his migration agent prepared his application for a Protection visa based on his instructions. He stated that his instructions were true and correct and that he was satisfied that his visa application was accurate and complete. He stated that there have been no changes in his circumstances since he filed his visa application [in] April 2013. He stated that he spoke to his migration agent over the telephone prior to his interview with the Department [in] September 2014 and face to face at the interview [in] September 2014.
During the hearing, the Tribunal discussed with the applicant his background, his family, his employment, his father’s death, his involvement with the BNP, his reasons for leaving Bangladesh and why he fears returning to Bangladesh. The Tribunal found aspects of his evidence to be vague, evasive, implausible, contradictory and unconvincing. He made new claims throughout the process. There were significant inconsistencies in his evidence. The Tribunal has concerns in relation to his credibility and the veracity of his claims. The Tribunal’s concerns are noted below.
In his visa application, the applicant claimed that his late father was a supporter of the BNP. He claimed that his father was killed in [year] by the local AL leader. He claimed that he was told by an eye witness that his father was riding his [vehicle 1] on the road when 2 people in another vehicle passed him, one of those people in the other vehicle pushed his father off his [vehicle 1] onto the road and another person on a motor cycle ran over his father crushing his head.
During his interview with the Department [in] September 2014, the applicant claimed that his late father was a leader in the BNP until his death in [year]. He claimed that his father was in [another type of vehicle 2] when it was pushed by a truck driven by an AL helper. He claimed that two people on motor cycles struck his father’s head and he later died in hospital.
During the hearing, the applicant gave evidence that his late father was a member and [Position 1] in the BNP. He claimed that his father was driving his [vehicle 2] when it was hit by a truck driven a local person from the AL. He claimed that his father fell out of the [vehicle 2], people in the truck got out and beat his father. He claimed that his father was taken to hospital but did not survive.
When the Tribunal raised as an issue with the applicant the inconsistencies in his evidence in relation to whether his father was a supporter of the BNP or a leader in the BNP or the [Position 1] of the BNP and its concerns about the credibility of his claims, he responded that in the party office people who are involved with the BNP do different jobs. This response does not address the issue raised by the Tribunal and does not alleviate the Tribunal’s concerns.
When the Tribunal raised as an issue with the applicant the inconsistencies in his evidence in relation to who killed his father and how he was killed and its concerns about the credibility of his claims, he responded that he did not understand where he made a mistake. He stated that he previously mentioned a truck and mentioned a truck at the hearing. He stated that he forgot to mention another motor cycle during the hearing. He stated that he mentioned that his father was in a [vehicle 2] during his interview with the Department. He stated that in relation to the [vehicle], he told his lawyer and sorted it out with his lawyer. This response does not explain the inconsistencies in his evidence and does not alleviate the Tribunal’s concerns.
In his visa application, the applicant claimed that the Police treated his father’s death as an accident. During the hearing, he gave evidence that he went to the Police Station to lodge a complaint but the Police did not accept it because the local Member of Parliament was a member of the AL and the Police only listen to instructions from the local Member of Parliament. When asked whether he sought the assistance of any BNP Members of Parliament, he responded that he did but did not get any assistance because the local Member of Parliament from the AL was powerful and dominated in the area.
The Tribunal finds this claim to be implausible as the BNP was in government in [the year] when the applicant’s father was killed.[1] It is implausible that if the applicant’s father was a leader in the BNP or the [Position 1] in the BNP, as he claims, the government would not have required an inquiry into the cause of his death and the prosecution of those responsible for his death particularly if his death was politically motivated. Further, in light of the applicant’s evidence in his Statutory Declaration dated 10 February 2016 that in his work as a [Office Bearer 1] in the BNP he worked with the Member of Parliament and accompanied him to meetings and rallies, it is implausible that he was unable to obtain the assistance of this Member of Parliament to have his father’s death investigated by the Police and have the perpetrators charged.
[1] Election Commission Bangladesh. ( Election 2001).

The applicant was interviewed by the Department [in] December 2012. During that interview, he stated that his father passed away in [year]. He made no mention of the fact that his father had been killed or that his father was an office holder in the BNP. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that his failure to do so raises concerns in relation to the credibility of these claims. He responded that [in the early stages of his application] he did not reveal himself and did not give his life history. He stated that [after some time] he had a lawyer. He stated that he gave all the information to his lawyer.
The Tribunal does not accept this explanation in view of the inconsistencies in the applicant’s evidence in his visa application (when he was represented by a lawyer) and his evidence during his interview with the Department [in] September 2014 (when he was represented by a lawyer) and his evidence during the hearing (when he was not represented by a lawyer).
In his visa application, the applicant claimed that he was a supporter and “ground level member” of the BNP. He claimed that he used to attend rallies, meetings and demonstrations in his area along with other BNP supporters from his area. He claimed that he worked for the BNP. During the interview with the Department [in] September 2014, the applicant’s lawyer, after having spoken to him, made submissions that he has always maintained that he was a “ground level member of the BNP”. After his visa application was refused by the Department [in] November 2014, the applicant lodged a Statutory Declaration dated 10 February 2016 with the Tribunal (prepared with the assistance of his lawyer) and made new claims that he became a student activist for the BNP in 1997, that he was elected to the BNP Student Committee as the [Office Bearer 2] in 2002 and that he was appointed the [Office Bearer 1] of the BNP in 2003.
During the hearing, the applicant gave evidence that between 1997 and 2002 he was a field worker for the BNP. He stated that in 2002 he was elected a [Office Bearer 1]. When asked what he did as the [Office Bearer 1], he was evasive. Eventually he stated that he allocated political activities to party members. He stated that he was responsible for the local area. He stated that he held this position until 2007 when the BNP was no longer in power and there was a caretaker government.
The Tribunal raised as an issue with the applicant the inconsistencies in his evidence in relation to his involvement with and role in the BNP. He responded that during his first interview he had not obtained legal advice and just answered the questions he was asked. He stated that they never raised the importance of this issue. He stated that documents are important and they had to bring documents. He stated that he started his political career from a low level and was elected to the position of [Office Bearer 2]. He stated that he had a BNP Membership Card but did not think it was important and that is why he did not show the Department his Membership Card.
The Tribunal noted that towards the end of his interview with the Department [in] September 2014 there was a break so that he would consult his migration agent. The Tribunal noted that after the break his migration agent submitted that since his Entry Interview he had maintained that he was a ground level member in the BNP. The Tribunal noted that there was no mention of him being the [Office Bearer 2] or [Office Bearer 1] of the BNP. The Tribunal noted that it was only in the last few months that he claimed that he was the [Office Bearer 2]. The Tribunal further noted that his migration agent also submitted that his father was a supporter of the BNP and did not mention that he was a leader of the BNP as he later claimed. The Tribunal noted that these inconsistencies raised concerns in relation to the credibility of these claims.
The applicant responded that he provided a paper at his previous interview and mentioned it. He stated that he only spoke to his migration agent over the telephone for 5 or 6 minutes. When the Tribunal noted that this was inconsistent with his earlier evidence to the Tribunal, he responded that maybe he misunderstood or made a mistake. He stated that he never spoke to his migration agent face to face and consulted a different lawyer to prepare his Statutory Declaration. Even if the Tribunal accepts that the applicant did not have face to face contact with his migration agent at the time his visa application was prepared, it does not explain why he instructed his migration agent that he was a ground level member of the BNP, gave this evidence during his interview with the Department [in] September 2014 and did not mention that he was elected the [Office Bearer 2] or, alternatively, the [Office Bearer 1] of the BNP in his local area.
The applicant was interviewed by the Department [in] December 2012. During that interview, he was asked why he left Bangladesh. In his response, he made no mention of being the [Office Bearer 2] or, alternatively, the [Office Bearer 1] of the BNP in his local area. He did not make this claim in his visa application or during his interview with the Department [in] September 2014. He made this claim for the first time in his Statutory Declaration dated 10 February 2016, approximately 3 years and 2 months after his arrival in Australia. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and he responded that he spoke to his migration agent over the telephone and answered the questions he was asked. He stated that he did not say much [in the early stages of his application]. He stated that after [some time] he spoke to his migration agent again over the telephone.
Even if the Tribunal were to accept that the applicant did not mention that he was an office holder in the BNP because he was speaking to his migration agent over the telephone and answering his questions, which it does not, it does not explain why he did not mention this during his interview with the Department [in] September 2014. This interview was for the specific purpose of discussing his claims, he had the opportunity to speak on his own behalf with the assistance of a professional Bengali interpreter and he had the assistance of his migration agent. His failure to mention these claims until 3 years and 2 months after his arrival in Australia raises concerns in relation to the credibility of these claims.
The Tribunal asked the applicant about the policies of the BNP. He responded that they support the general people of the country, no corruption and development and building for the goodness of the country. When asked the four main principles of the BNP, he was unable to answer correctly.[2] When asked to describe the flag of the BNP, he stated that there was paddy in the middle but was unable to correctly describe the rest of the flag or correctly name the colours of the flag.[3] The Tribunal would expect that if the applicant had been a member of the BNP since 1997 and was the elected [Office Bearer 1] of the BNP or, alternatively the [Office Bearer 2] of the BNP, from 2002 to 2007 he would have been aware of the policies of the BNP, or at least the four main principles of the BNP, and would have been able to correctly describe the flag of the BNP. His poor knowledge of the BNP raises concerns about the credibility of his claims.
[2] Bangladesh Nationalist Party, BNP 19 Points Program. ( Bangladesh Nationalist Party, Constitution. (>
When the Tribunal raised his poor knowledge of the BNP as an issue with the applicant and noted that it was not consistent with his claims, he responded that he left the BNP and came to Australia. He stated that it was a long time ago and he cannot remember dates and other matters. He stated that he is in a “mental space”. He stated that the agent who organized his trip to Australia told him he was going to [another country] but he did not. He stated that this put him under mental pressure. The Tribunal accepts that his trip to Australia may have put him under “mental pressure” but is not satisfied, on the evidence before it, that this explains his poor knowledge of the BNP.
In his visa application, the applicant claimed that in October 2012 he was part of a group building a stage for a BNP rally when they were attacked by AL supporters who destroyed the stage. He claimed that on the following day the BNP members gathered in public to protest against the attack when [number] of them were arrested and taken to the local Police Station. He claimed that at the Police Station he was threatened and beaten. He claimed that he was released after one hour after he paid a bribe of [smaller amount] taka. He did not refer to any other incidents or arrests involving him in his visa application. During his interview with the Department [in] September 2014, he claimed that he was arrested on four occasions and released without charge.
The applicant lodged a Statutory Declaration dated 10 February 2016 with the Tribunal. He made no mention of any arrests in his Statutory Declaration. During the hearing, he gave evidence that he was arrested on three occasions. He stated that the last occasion he was arrested was at about 10am or 11am on a day in October 2011. He stated that he was involved in building a stage for a BNP rally when AL members with the support of the Police destroyed the stage. He stated that when they objected the Police arrested 40 to 50 BNP members including him, took them “a little further”, released some of the people arrested and took 10 to 12 people to the Police Station. He stated that they were kept at the Police Station and tortured all night. He stated that he was released at 5am or 6am the following morning after paying a bribe of [amount] taka.
There are several inconsistencies in the applicant’s evidence in relation to when he was arrested, how many times he was arrested, how long he was detained and how much he paid in a bribe on the last occasion he was arrested. When the Tribunal raised as an issue with him the inconsistencies in his evidence in relation to how many times he was arrested, he responded that different officers ask questions differently and they answer the questions asked. He stated that later they are asked the same question and describe it in detail and there are differences. He stated that they had no idea they would be asked for documents and did not know they were so important.
When the Tribunal noted that during his interview with the Department [in] September 2014 he stated that the last time he was arrested was in October 2012 and he told the Tribunal the last time he was arrested was in October 2011, the applicant responded that it has been a long time and he cannot remember dates. When the Tribunal noted that he previously claimed that he paid a bribe of [smaller amount] taka and he told the Tribunal he paid a bribe of [larger amount] take, he responded that he told his migration agent he paid a bribe of between [amount range] taka and does not know what he wrote down. This is not consistent with his earlier evidence to the Tribunal that his migration agent prepared his visa application based on his instructions which were true and correct and that he was satisfied that his visa application was accurate. The Tribunal accepts that the applicant may have difficulty remembering dates but does not accept that that explains the other inconsistencies in his evidence.
The applicant gave evidence to the Tribunal that he has never been charged with any offence or taken before a Court. He stated that no one has commenced any Court proceedings against him. He was interviewed by the Department [in] December 2012. During that interview, he claimed that he was charged and had a case pending against him. He claimed that there were documents in relation to this. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and he responded that when he was arrested the Police created a file against him and documented everything. He stated that if he returns to Bangladesh they will instigate a case against him. He stated that when they were arrested they were told that these were the offences against them and if they return they would restart it.
When the Tribunal noted that he did not make this claim in his visa application, the applicant responded that he made a mistake. The Tribunal does not accept that he made a mistake and did not mention it. The Tribunal is of the view that if this happened and the applicant feared a Court case against him if he returned to Bangladesh, he would have made sure he mentioned this in his visa application. His failure to do so raises concerns in relation to his credibility and the veracity of this claim.
In his visa application, the applicant claimed that he fears returning to Bangladesh because the authorities and/or members of the AL will kill him because of his association and his family’s association with the BNP. He claimed that the authorities cannot protect him as they are in league with the AL and obey the ruling party. In his Statutory Declaration dated 10 February 2016, he claimed that he fears returning to Bangladesh because the authorities will be waiting for him and he was told by the Police that he would be charged with criminal offences based on false allegations. During the hearing, he claimed that if he returns to Bangladesh he will be arrested, put behind bars and killed in a cross fire. He was interviewed by the Department [in] December 2012. During that interview he was asked what would happen if he returned to Bangladesh and he answered that he did not know.
The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and he responded that when he was interviewed by the Department and [in the early stages of his application] he said the same thing as he did at the hearing. He stated that he said if he had to return to Bangladesh he would have problems. This is not consistent with the Department’s record of interview [in] December 2012. The Tribunal prefers the records of the Department than the evidence of the applicant as the Tribunal is of the view that they are more reliable.
During the hearing, the Tribunal discussed with the applicant the documents he had provided the Tribunal and the Department. He provided the Tribunal a letter from the BNP dated [in] August 2010. It states, in part, “He active includes student party from 1997 in BNP. He first join the Union Student BNP then he join Upazilla BNP organization.”(sic) When asked about this letter, he stated that he got this letter in 1997 but it was signed on [a date in] August 2010. When questioned about the dates, he responded that he became involved with the BNP in 1997 but collected the letter in August 2010. When asked why he got the letter, he stated that everyone was getting letters so he thought he would get one. He stated that there were no elections in the party and people were moving from their areas. He stated that he did not bring the letter to Australia with him and his [sibling] sent it to him before his interview with the Department. This is inconsistent with his evidence in his Statutory Declaration dated 10 February 2016 in which he stated that his [sibling] sent it to him after the Department refused his visa application.
In his Statutory Declaration dated 10 February 2016, the applicant claimed that he obtained the letter dated [in] August 2010 from the BNP for the purpose of having a reference for a higher Committee position in the BNP. The Tribunal would expect that if the applicant obtained a reference from the BNP to support him obtaining a higher position in the Committee, he would have ensured that the letter mentioned that he was the [Office Bearer 2] or, alternatively the [Office Bearer 1], in his local area from 2002 to 2007. The fact that it does not, raises concerns in relation to the credibility of his claims. The Tribunal would also expect that if the applicant had this letter since 2010, he would have provided it to the Department when he filed his application for a Protection visa or soon after.
The applicant has also provided to the Tribunal documents which appear to be BNP Membership Cards. One has a photograph of him and has no English translation. The other has no photograph and has an English translation. The English translation contains his name, his father’s name, his address, mobile telephone number and his title ‘[Office Bearer 2]’. It is undated. The interpreter translated the document containing the applicant’s photograph and indicated that it contained the same information as the translated document without his photograph. When asked when the Membership Card he referred to in his Statutory Declaration was issued, the applicant responded that it was issued in 2002 and signed by the [Position 1]. He stated that it was issued on “soft paper” in 2002 and became a card in 2003.
In view of the Tribunal’s concerns in relation to the applicant’s credibility and the veracity of his claims and for the reasons given above, the Tribunal has concerns about the authenticity of the documents he has provided. The Tribunal raised this as an issue with him and discussed with him the country information which indicates that there is a significant prevalence of fraudulent documents in Bangladesh and that there is no difficulty at all for anyone to obtain these documents.[4] He responded that he agrees that in Bangladesh one can obtain fraudulent papers and the Police carry out any instructions if you bribe them. He stated that the documents he has are authentic. He stated that he was involved with the BNP. He stated that he had no idea that he needed these papers in Australia and that is why he did not bring them with him. He stated that he never thought these papers were so important. For the reasons given above, the Tribunal is not satisfied that these are authentic documents.
[4] CX316824: "BGD103532.E Bangladesh Reports of fraudulent documents", Canada: Immigration and Refugee Board of Canada (IRB), 20 September 2010, (Opens in a new window)
The Tribunal has had regard to the oral submissions made by the applicant’s migration agent to the Department. For the reasons given above, the Tribunal is not persuaded by those submissions. The Tribunal has had regard to the country information provided by the applicant.
The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the DFAT Country Information Report on Bangladesh and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.
Findings
Having considered all the applicant’s claims, all the evidence and the submissions, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.
The Tribunal accepts that the applicant was born on [date] at [his home] village, [in District 1] in Bangladesh. The Tribunal accepts that he is of Bengali ethnicity and is a Muslim. The Tribunal accepts that he completed [academic level] in [year] and then undertook a vocational training course. The Tribunal accepts that he commenced employment in [year] [making products]. The Tribunal accepts that he undertook this employment until 2009.
The Tribunal accepts that the applicant then commenced employment as [an occupation 1] in January 2010 and worked in his [relative’s] business. The Tribunal accepts that this employment ceased in May 2011 when his [relative] went bankrupt and closed down the business. The Tribunal accepts that he was thereafter unemployed until he left Bangladesh in November 2012. The Tribunal accepts that he has worked [in two occupations] in Australia.

The Tribunal accepts that the applicant’s father passed away in [year]. The Tribunal accepts that he has [specified siblings]. The Tribunal accepts that [some of his siblings] are married and have their own families. The Tribunal accepts that his [specified] [sibling] lives with [their] mother and runs [a] [product] business. The Tribunal accepts that the applicant is single and has never married.
The Tribunal does not accept that the applicant’s father was a supporter of the BNP or, alternatively a member of the BNP or, alternatively a leader in the BNP or, alternatively the [Position 1] of the local branch of the BNP. The Tribunal accepts that his father died in a motor vehicle accident in [year]. The Tribunal does not accept that he was killed by supporters or members of the AL or, alternatively the local leader of the AL. The Tribunal does not accept that his father’s death was in any way politically motivated.
The Tribunal does not accept that the applicant was or is a supporter or member of the BNP or its Student Wing. The Tribunal does not accept that he was appointed the [Office Bearer 2] or, alternatively the [Office Bearer 1], of his local branch of the BNP. The Tribunal rejects the entirety of the applicant’s claims that flow from these claims.
The Tribunal does not accept that the applicant or any member of his family was or is of adverse interest to the AL, its leaders, members or supporters.
The Tribunal does not accept that the applicant was or is of adverse interest to the Bangladeshi authorities. The Tribunal does not accept that any adverse report, false charge or case has been lodged against the applicant in Bangladesh.
The Tribunal accepts that the applicant does not wish to return to Bangladesh and would prefer to live in Australia.
The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of his actual or imputed political opinion or any other Refugee Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Refugee Convention reason. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
The Tribunal has rejected the entirety of the applicant’s material claims on the basis that they were fabricated for the purpose of obtaining a Protection visa. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Bangladesh now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.

Linda Symons

Member

[2016] AATA 4155

18 July 2016

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction