1420211 (Refugee)
[2016] AATA 3879
•12 May 2016
1420211 (Refugee) [2016] AATA 3879 (12 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1420211
COUNTRY OF REFERENCE: Bangladesh
MEMBER:Gabrielle Cullen
DATE:12 May 2016
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 12 May 2016 at 1:09pm
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, a citizen of Bangladesh and born in the Sherpur District, departed Bangladesh for Australia [in] January 2013. He fears return as he is a follower of Tabligh Jamaat, a non-political Islamic group. He claims he was targeted by members of the Awami League as they believed because of his conservative Islamic dress and appearance that he is a follower and activist of Jamaat-e-Islami (JeI).
The applicant arrived in Australia by boat [in] March 2013 and was interviewed by the Department for his entry interview [in] April 2013.
[In] November 2014 the applicant was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.
The delegate refused to grant the visa [in] November 2014 on the basis that the country information did not support the applicant’s claims that as a member of Tabligh Jamaat he will face a real chance of persecution.
The applicant appeared before the Tribunal on 27 April 2016 to give evidence and present arguments and where relevant the evidence from that hearing appears in this decision. The applicant was assisted with an interpreter in the Bengali and English languages. The applicant was given until 9 May 2016 to provide a written response to the s.424AA matters raised and any other matters he considered relevant.
The issues to be considered in this case are as follows.
·Is the applicant credible as to his claims?
·Does the applicant have a well-founded fear of persecution in relation to Bangladesh and meet the protection obligations under the Refugees Convention?
·Does he meet the protection obligations under the complementary protection provisions of the Migration Act?
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).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following.
·The applicant’s protection visa application of [July] 2013, attached statement and identity documents. The applicant also produced further identity documents at the Tribunal hearing.
·Oral evidence provided at the entry interview by way of written notes held [in] April 2013, oral evidence at the Department interview held [in] November 2014 and Tribunal hearing held on 27 April 2016.
·Written submission from the applicant’s former representative dated [in] November 2014.
·Applicant’s written submission dated 9 May 2016.
·DFAT DFAT Country Report Bangladesh 20 October 2014.
·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
Is the applicant credible as to his claims?
The Applicant’s Claims
The applicant claims in his statement attached to his protection visa application to fear return on the basis that he is a member of Tabligh Jamaat, a non-political Islamic group. He claims this group is viewed negatively by those who support the government because many devout Muslims prefer to follow political parties that are opposed to the government.
The applicant claims he grew up as a Muslim but was not very serious until about 2011 when he was introduced to Tabligh Jamaat when he lived in Dhaka. He claims in 2012 he left Dhaka and returned to his home village and there he continued his practising of Tabligh and was seen as a visibly religious person. He claims as a result problems started that year with the Awami League when activists told him to stop practising Tabligh and accused him of being an activist for Jamaat-e-Islami, the political enemy of the Awami League.
He claims he heard through others that he may have trouble with these people in the village because of his religious activities. He claims the first direct threats happened when he went to the bazaar to do some shopping one evening. He claims a group of men approached him and told him he should leave JeI and join the Awami League and if he did not there would be problems. He claims he recognised one of them as [Mr A].
He claims he told them he was not supporting JeI but they accused him of lying because he was wearing a cap, growing a beard and mixing with people who were involved with JeI. He claims he did not pay any attention to the threats.
He claims as well as the threats in public, people would come to his house to tell him to stop his religious practices and support the Awami League. He claims after they came to his house he started to take the threats more seriously and he went into hiding. He claims he hid at other peoples’ houses during the time when they would often come, late at night. He claims he then became fearful they would find him and for this reason he then began hiding in the jungle. He claims his mother would contact him by phone when they had left and he would return home. He claims he also began sleeping in a different room of the house with a door he could use to escape.
He claims he was threatened to his face three or four times but they came looking for him on many occasions. He claims he does not know the names of all the people who were among those who threatened him. He claims he knows some of them and they were from the Awami League as he had seen them putting up posters or delivering speeches in the bazaar. He claims he knew the people from the village but they turned against him when he started doing Tabligh. He named the people as [Mr A], [and three other names].
He claims he also became very concerned that the estranged husband of his sister, [named], may attempt to harm him if he thinks he is supporting JeI. He claims he is an influential Awami League associate and he fell out with his family over his sister’s dowry. He claims after they separated and his sister returned to the family he wanted to take away his sister’s baby but the family would not agree and as a result he became very angry at them. He claims he worries that his brother-in-law will make great trouble for him because of his religious practise as a way to take away his sister’s child or to take revenge on his family. He claims this man has a violent criminal history and is also a drug addict and his sister told him he should be very careful of him, especially as he is practising Tabligh. He claims after his brother-in-law made several threats against them his sister changed her phone number.
He claims his mother became worried he would be attacked as the Awami League is very strong in his village and she told him he should leave for his safety.
He claims he first considered going to Dhaka because he had not had these problems there but he realised that Awami League violence against religious people was now a problem all over the country and if he went there and continued his practise of Tabligh he would be in trouble. He claims most of the time he had lived in Dhaka was before he was Tabligh. He then decided to travel to Australia.
He claims after leaving Bangladesh by boat in January 2013 he found out about the violence that took place after he left. He claims there were large riots and many religious people were beaten and shot, often by the police. He claims since leaving Bangladesh he has been informed by his sister that her estranged husband was looking for him and making threats against him.
He claims his mother told him that religious people are mercilessly targeted by the Awami League. He claims there has been violence all over the country and it has now become clear that Dhaka would not have been a safe place for him.
He claims he fears if he returns that he will be involved in violence that targets religious people who are seen to be involved in opposition parties. He claims this could happen in his village and throughout the country.
At the Department Interview [in] November 2014 the applicant reiterated his claims and provided details as to the difference between Tabligh Jamaat and Jamaat-e-Islami. He repeated that because of the way he dressed and his practise of Tabligh he is perceived to support JI and as a result the Awami League members will harm on return. He again indicated he is not political and not involved with JeI. He stated that the people he had difficulty with were members of the Awami League and not the authorities. He also outlined the difficulties he had with his brother-in-law when directly asked by the delegate, after initially replying in the negative when first asked if he had any other problems in Bangladesh apart from the Awami League. He outlined in detail the difficulties the family had faced with his brother-in-law over his sister, her dowry and their child. He also said his brother-in-law was a member of the Awami Legue and that he threatened to kill him. Information was raised with him that it did not appear Tabligh Jamaat members were targeted in Bangladesh, and he responded that it is because they are mistaken for members of JeI.
At the end of the interview the applicant’s representative submitted that he had a well fear of being persecution on account of his religion and an imputed political opinion as a supporter of JeI. She claimed because of the way he dresses he could not practise his religion freely and he is a targeted as he is perceived to be a supporter of JeI.
[In] November 2014 the applicant’s representative provided a written submission indicating that the applicant’s harm is not localised as the Awami League are active in harming supporters of JeI. She submitted that the lack of information that Tabligh Jamaat members are not specifically targeted should not lead the delegate to conclude the applicant would not suffer serious harm on return to Bangladesh as due to their similar dress Tabligh members are commonly identified as JeI. Information was raised as to the inability of the applicant to safely relocate in Bangladesh.
At the Tribunal hearing held on 27 April 2016 the applicant repeated his claims and said he feared harm as it had happened to him in the past. He confirmed he was not a member of any political party, had never been involved in a political party or politically active, nor had he been involved in Bangladeshi politics while in Australia. He said he is currently involved in a four month Tabligh course in [Australia]. Independent information as to the treatment of Tabligh members and the profile of those who are politically involved who are targeted was raised with him. The Tribunal questioned whether he is a witness of truth as to facing the difficulties he claims in Bangladesh and his fear of return. Concerns raised, where relevant, have been outlined below.
On 9 May 2016 the applicant provided a written response. He repeated the claims outlined in his statement attached to his protection visa application and outlined the summary of his representative’s written submission as outlined in the Department decision. He outlined sections of the Department decision. He again raised his fear of return at the hands of his brother-in-law who he claims is strongly backed by the Awami League and has severe enmity to him. He claims his brother has threatened him in public that he will kill him. He claims he tried to do that several times but for the sake of his sister he did not tell anybody. He claims his mother told him that his brother-in-law met his father in the market and used bad words and threatened him (the applicant), and said he would kill him if found. He claims, presently in Bangladesh, it is not an environment supportive of Islamic minded people, and every day people are killed by the Awami Legaue for silly reasons. He claims the Awami League government is very hostile to people who follow Islam strictly. He claims in Bangladesh it is a common belief that those who wear Islamic dress support JeI, those who are Hindus support the Awami Legaue and those who support BNP are supporters of Pakistan. He claims before the election in 2014 many people in Islamic dress who were not members of any party were badly treated and physically tortured on the road. He claims the government is very aggressive to Islamic minded people, because thye protested against the Awami League government strongly. He claims around 200 people were killed and there is no justice. He claims he will be persecuted if he returns, especially as he is young and involved in Tabligh and known as “shibir”. He claims Awami League cadres have the slogan “catch the Shibir”, slaughter them.” He claims the situation has deteriorated since the Department decision. He claims members of JeI are mercilessly killed and he will be perceived as one as he practices Tabligh. He claims they are now threatening his family.
Assessment of Credibility of Claims
Having sighted a copy of the applicant’s birth certificate and national certificate, and on the basis of the applicant’s evidence at hearing, the Tribunal accepts that the applicant is a national of Bangladesh for the purposes of s.36(2)(a). For the purposes of s.36(2)(aa) the Tribunal accepts that Bangladesh is the receiving country.
As to the applicant’s credibility, while the Tribunal has, as detailed below, significant concerns regarding aspects of the applicant’s claims and evidence, particularly those he claims led him to leave Bangladesh, which the Tribunal does not accept as true, and why he fears return, there are other aspects of his claimed basic circumstances which have remained consistent over time and which the Tribunal is satisfied are true.
Specifically, the Tribunal accepts because of his consistent evidence that the applicant is a follower of Tabligh Jamaat and began his association with this movement in 2011 and has continued to be involved while living in Australia. It accepts he wears conservative Islamic dress. It accepts his evidence, as it is consistent with independent information that Tabligh Jamaat is a peaceful, non-political organisation which promotes a conservative view of Islam, including through dress and practice[1]. It also accepts as true that in the past, around 2006/7 his sister and his family had a dispute with his sister’s estranged husband over her dowry and the child from the marriage. It accepts there was a court case and his sister has separated from him and lives with his parents in his home village.
[1] Independent information indicates it is a global Sunni Islamic proselytizing and revivalist movement that focuses on urging Muslims return to orthodox Islam, and particularly in matters of ritual, dress, and personal behaviour. It denies any affiliation with politics, focussing on the Quran and Hadith and states that it rejects violence. This is consistent with the applicant’s evidence.
Notwithstanding the above, for the reasons outlined below the Tribunal has significant concerns as to the applicant’s credibility with regard to the difficulties he claims he faced as a member of Tabligh Jamaat and as a person perceived to be associated with JeI at the hands of members of the Awami League and his brother-in-law which he claims led him to leave Bangladesh.
Firstly, at the hearing before me the applicant provided vague evidence, lacking in detail as to the difficulties he faced while in his home village as a follower of Tabligh Jamaat when they threatened him at his home which led him to flee Bangladesh. While he has consistently stated to the Department and Tribunal that he was threatened in the bazaar, he also claimed he was subsequently threatened while at home. At the hearing before me he said on 6 to 7 occasions or more the Awami League followers came to his home and on those occasions he escaped through the back door. He said they came on other occasions to his home but he was not there. However despite being asked to provide detail of these particular 6 or 7 incidents and as to who came on each occasion, what exactly happened and what was said; his evidence was vague, general and lacking in detail. His evidence as to these incidents was that they came to his home many times and when asked what happened he said they didn’t do any damage, just asked for the applicant, became angry and pushed the table and chairs. He said they belonged to the Awami League and he knew 4 of them, which he named as he saw them putting up posters. When asked for more detail and to describe the events individually he said 3 to 5 people came and asked where he was and when they couldn’t find him they pushed the furniture. When the Tribunal again raised with him that his evidence appeared vague; and asked him to describe when, where, what actually happened on each incident and who came on each occasion; he said they came at 1am or 2 am and that everybody in the country with a beard had problems and he became afraid. The Tribunal is of the view if the applicant was targetted 6/7 times at his home he would be able to provide more detailed evidence as to each particular incident. This is particularly so as in his statement he said he was directly threatened on 3 or 4 occasions when recounting what happened when they came to his home. The Tribunal expects if he was directly threatened or at home on 6 to 7 occasions when the Awami League came to his home that he would be able to provide more specific details as to each incident than he has. In response the applicant indicated that he has been asked on a number of times these questions and compelled to answer and as he was pushed to answer the questions he said it was 6/7 times. The Tribunal does not accept this response and expects if he was targeted in the manner he claims he would be able to provide a more detailed account than he has. This leads the Tribunal to find that members of the Awami League did not threaten him at home for the reasons he claims. This adds to the Tribunal’s finding the applicant is not credible as to being targeted at his home for the reasons he claims in Bangladesh.
Secondly, his description of the difficulties he faced in Bangladesh as a member of Tabligh Jamaat and as a perceived follower of JeI is inconsistent with evidence provided to the Department.
·At the hearing before me the applicant said he was first targeted by members of the Awami League 5/6 months before he departed Bangladesh. The applicant departed Bangladesh [in] January 2013. He said he was targeted directly while in the local market and confirmed this was the first time he realized people were upset with him because of his conservative Islamic dress and perceiving him to be with JeI. However as raised with him via the process outlined in s.424AA he stated at the entry interview that the threats began indirectly and then later he was threatened directly. He said he was not sure about the date of the threat but said that the threatening started at the end of 2012, for about three and a half months he was getting threats from them. Also in his statement he referred to first hearing word through others that he may have trouble with these people. While not solely determinative the applicant’s inconsistent evidence as to whether he first became aware people were upset with him when directly threatened in the market or indirectly prior to that and whether the threats began 3 and a half months or five and a half months before he left adds to the Tribunal’s finding as to the credibility of his claim of being threatened in the manner outlined before he departed Bangladesh.
·Further, at the hearing before me the applicant said he was threatened many times when they came to his house. When asked how many times he said he could not say as he was not there for many of them. When asked how many occasions he was at his home when the Awami League came to threaten him, he said 6/7 times or more when he was there and he would escape through the back. He confirmed he was at home on 6/7 occasions when the Awami League came to his home to directly threaten him. However as raised with him via the process outlined in s.424AA when asked how many times he was threatened he said in his statement at and the entry interview on 3 to 4 occasions. In response when the matter was raised with him he said that he had been questioned on many occasions at the Department and Tribunal that is why there are variations in the answers. The Tribunal does not accept this response and expects if the applicant was directly threatened that he would be consistent as to how often it occurred, despite being asked on a number of occasions.
·Further despite claiming he was threatened by his brother-in-law because of his association with Tabligh Jamaat and as his brother–in-law was with the Awami League, as rasied with him via the process outlined in s.424AA, at the entry interview while he referred to the difficulties between his sister and brother-in-law and the breakup of the marriage because of a dowry dispute and the child, he did not mention being threatened by his brother-in-law because of his practise or association with Tabligh Jamaat or his brother-in-law being involved with the Awami League.
Also, at the Department interview after describing the difficulties he faced by members of the Awami League, he was asked apart from those groups whether he faced any trouble from anyone else in Bangladesh and he said no. He only mentioned the difficulties he faced from his brother-in-law when directly asked, then described in detail the dispute with his sister over the dowry and their child and then mentioned that he was targeted by him because of his recent practice of Tabligh and as his brother-in-law is associated with the Awami League. The Tribunal is of the view if the applicant’s brother-in-law had threatened him with death either directly or indirectly as is his claim because of his association with Tabligh or because of the difficulty with his sister or he feared return because of his brother-in-law for any reason that he would have raised that without being prompted. This adds to the finding that the applicant was not targeted in Bangladesh by his brother-in-law or through his family either before or after he left Bangladesh, directly or indirectly. It adds to the finding that he is not credible as to facing the difficulties he claims in Bangladesh and the reasons he departed.
Finally his claims of facing difficulties as he is as a follower and member of Tabligh Jamaat, as he is dressed as a devout Muslim, and as is perceived to be associated with JeI and targeted by the Awami League as a result is not consistent with independent information, as is his claim that young Islamic men are slaughtered, that Islamic dressed men who are not members of any party have been physically tortured on the road and even taken to jail and people perceived to be with JeI have been mercilessly abducted and killed in the last two years.
With regard to members of Tabligh Jamaat in Bangladesh there is no indication from the independent information that they are particular targets of violence for religious, political or any other reasons, now or when the applicant claims he was targeted in 2012. There are reports that they operate freely in madrassa campuses[2] and have established cells among the professional groups[3]. While there are reports indicating some of their members have harassed Muslim converts to Christianity[4], there is no indication that Tabligh members or followers have been victimized due to religious or political grounds, or as they are perceived to be members of JeI. This is particularly relevant as the information indicates that the community of Tabligh Jamaat is large in Bangladesh. Information indicates that each year in Bangladesh the Tabligh Jamaat holds their annual festivals at Tongi[5]. Information indicates that in total millions attend[6]. Further information indicates that the Awami League government supports the festival[7]. The Tribunal is of the view that if members of Tabligh Jamaat were in the past or are currently targeted or perceived as JeI or in opposition to the government because of the way they dress, their appearance or as young conservative Muslims or young Islamic men are slaughtered, that there would be some reports of difficulties or reports of incidents of violence, particularly as there is a large number of Tabligh followers with millions attending the annual festivals, who similarly wear conservative Islamic dress and who are young Islamic males. However no such reports could be found of members of Tabligh Jamaat facing the violence claimed by the applicant.
[2] “Islamic Education in Bangladesh and Pakistan: Trends in Tertiary Institutions” The National Bureau of Asian Research, 1 April 2009. Also referred to in the Department Decision
[3] Ibid
[4] “Vigilante Group formed in Bangladesh to stop Christian Activities” World Watch Monitor 29 November 2013. Also referred to in the Department decision.
[5] “Millions of Muslims from 150 countries join together in prayers on the final day of Bishwa Ijtema festival in Bangladesh” Daily Mail Australia, 11 January 2016; The information indicates in 2010 5 million people attended the festival and in 2016 it was broken into a number of phases.
[6] Ibid
[7] “Bishwa Ijtema's second phase begins on Turag River bank” BDNEWS24.COM, 24 January 2016; and “First phase Ijtema January 8-10” The Daily Observer 20 November 2015 The Government issues hassle free visas, organises special transport and organises security.
Also, his claim that he was targeted as he was perceived to be a supporter or member of JeI is not supported by independent information. Firstly there is no independent evidence that members of Tabligh Jamaat are perceived as JeI or devout Muslims face difficulties as they are perceived as JeI and in opposition to the government. Further, the information indicates that only those involved in political parties with high profiles engaged in protests or hartels are at risk, and that supporters or members are not at risk of violence on a day to day basis.
In this regard DFAT’s Country Information Report indicates the following.
3.55 DFAT assesses that supporters or members of political parties in Bangladesh are not at risk of being arrested or living in fear of violence on a day-to-day basis due to their political affiliations. Opposition leaders or members with high profiles face a low risk of being individually targeted for arrest and detention due to engagement in general political activities. Opposition party members engaged in protests face a low risk of being arrested. However, opposition leaders, or members with high profiles, may face a higher risk of arrest when engaged in political protests.
As the applicant was never involved in any protests or hartels, not a leader or high ranking official, nor an activist the country information does not support his claim that he was targeted as he was perceived to be a supporter or member of JeI due to the way he was dressed or appears or the way he practiced his Muslim faith in the absence of any direct involvement.
When raised with the applicant he responded in writing and orally as to his view that Muslim men, members of Tabligh, and young Islamic males are targeted as they are perceived to be members of JeI and in opposition to the government, as noted above. He said many members of Tabligh Jamaat are killed. However no independent information was submitted to support his claim.
On the basis of the independent information before it, the Tribunal does not accept that it supports his claim that he was targeted in Bangladesh for the reasons he claims or his general assertions as to the difficulties faced by members of Tabligh Jamaat or the other groups he claims to belong to.
This adds to the finding the applicant is not credible as to facing the difficulties he claims for the reasons he claims.
Credibility and Tribunal Guidelines
In making these findings, the Tribunal has considered the possibility of discrepancies arising because of genuine lapses of memory, nervousness, anxiety and the manner in which responses can differ depending on the nature and manner of which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. There is no independent medical evidence to support that his mental state is so affected by anxiety, stress or distress to affect his memory to the extent he was unable to provide consistent evidence between the Department and Tribunal as to the core aspects and details of his claim as to why and what lead him to flee Bangladesh. The Tribunal is of the view on witnessing him at hearing that he was able to provide his evidence chronologically, and free of any impediment. It has considered his claim that there are discrepancies as he has had to repeat the evidence on a number of occasions. The Tribunal does not accept this as a reason for the inconsistencies raised above and expects that if the events happened as claimed he would be able to recount these matters consistently. The Tribunal does not accept that any of these factors raised explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims. The Tribunal views the issues and concerns raised above by it to be of such importance and significance as they led him to leave Bangladesh that it does not accept the inconsistencies arose because of the factors raised above.
Credibility Summary
For all the above reasons, the Tribunal does not find the applicant to be a credible, truthful and reliable witness as to his claims of the difficulties he faced in Bangladesh and what led him to leave Bangladesh and why he fears return. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome.
It follows based on the applicant’s lack of credibility that it does not accept that the Awami League activists, people in the village or his brother-in-law ever told him to stop practising Tabligh directly or indirectly in public or at his home or ever accused him of being an activist for JeI because of the way he dresses, his appearance and beard, as he was mixing with people involved JeI or as a young man following Islam. It follows it does not accept as true he was threatened in the bazaar while shopping when a group of men, including [Mr A] or anyone else, approached him and told him he should join the Awami League and leave JeI, otherwise there would be problems. It follows it does not accept as true people, including members of the Awami League and [Mr A], [and three other names], would come to his house to tell him to stop his religious practices and support the Awami League on any occasion, that furniture was thrown, he was threatened directly or indirectly, and escaped through the back door. It follows it does not accept he went into hiding at other peoples’ houses during or in the jungle or began sleeping in different rooms of the house.
It follows based on the applicant’s lack of credibility that it does not accept his brother-in-law has made any trouble for him, including threatening him with harm or death directly or through a family member or tried to harm him due to his religious practice or because of the dispute with his sister or his brother-in-law is with the Awami league or because there is enmity between then, individually or cumulatively
It follows that the Tribunal does not accept as true that after leaving Bangladesh by boat in January 2013 he found out his sister’s estranged husband was looking for him and making threats against him or that his brother-in-law met his father in the market and used bad words and threatened him (the applicant), and said he would kill him if found. It follows it does not accept as true that his mother told him religious people have been targeted by the Awami league since he left.
It follows it does not accept as true that his family have been threatened or he has indirectly been specifically threatened by members of the Awami League, his btoehr-in-law or anyone else for the reasons he claims.
It follows it does not accept as true that at any time he was unable to practise his religion freely.
It follows it does not accept as true that he fled Bangladesh for the reasons he claims.
The Tribunal rejects his claims in their entirety as to his fearing return from any of the people or groups he claims on account of any of the reasons he claims.
In making these findings the Tribunal has also considered that some information the applicant has provided has been consistent over time. In particular it considers that he has consistently stated he was harassed and threatened while in the bazaar, the threats occurred in 2012 and that he was threatened by members of the Awami League. However the Tribunal considers that these matters are relatively easy matters to recall and his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness as to these claims.
Does the applicant have a well-founded fear of persecution in relation to Bangladesh and meet the protection obligation under the Refugees Convention?
For the reasons outlined above on the basis of the cumulative impact of the applicant’s inconsistencies in evidence, the Tribunal does not believe that the applicant is being truthful as to his claims of facing difficulty in the past for the reasons he claims or departed Bangladesh for the reasons he claims, as outlined directly in the paragraphs above.
It is the applicant’s claim that the situation, however, has changed. He claims, presently in Bangladesh, it is not an environment supportive of Islamic minded people, and every day people are killed by the Awami League for silly reasons. He claims the Awami League government is very hostile to people who follow Islam strictly. He claims in Bangladesh it is a common belief that those who wear Islamic dress support JeI. He claims before the election in 2014 many people in Islamic dress who were not members of any party were badly treated and physically tortured on the road. He claims the government is very aggressive to Islamic minded people, because they protested against the Awami League government strongly. He claims around 200 people were killed and there is no justice. He claims he will be persecuted if he returns, especially as he is young and involved in Tabligh and known as “shibir”. He claims Awami League cadres have the slogan “catch the Shibir”, slaughter them.” He claims the situation has deteriorated since the Department decision. He claims members of JeI are mercilessly killed and he will be perceived as one as he practices Tabligh. He claims they are now threatening his family.
The information as to the political violence that occurred in early 2014 is outlined below in DFAT’s Bangladesh Report 2014
Recent Political Violence (2014 General Election/International War Crimes Tribunal)
2.3 There is a link between the general elections held on 5 January 2014 and verdicts of the International War Crimes Tribunal and official and societal violence. The elections were marred by low voter turnout (approximately 30 per cent) and violent protests which resulted in several hundred deaths. The BNP boycotted the elections and the Awami League won a significant majority in parliament. The EU Election Observation Mission said the “main political forces in Bangladesh had failed to create the necessary conditions for transparent, inclusive and credible elections”. The UN Secretary General called on the AL Government to resume negotiations with opposition parties to hold new elections.
2.4 The War Crimes Fact Finding Committee was established in 2008 and has identified 1600 people suspected of committing war crimes during the 1971 war. In 2009, an International War Crimes Tribunal was established by the AL government to investigate and prosecute these suspects. Between 2009 and 2014, the International War Crimes Tribunal indicted nine Jamaat-e-Islami (JI) and two BNP leaders for suspected war crimes. Four JI leaders and one BNP leader have been sentenced to death. Abdul Quader Mollah, a senior JI leader, was hanged for committing genocide during the 1971 war.
2.5 Political protests, including nation-wide hartals (general strikes), demonstrations, sit-ins and transport blockades peaked in Dhaka and the southeast (Cox’s Bazar and Chittagong region) in the lead up to the January 2014 election and in response to verdicts of the Tribunal between 2009 and 2014 (see ‘International War Crimes Tribunal’ below). Clashes between supporters of the two main political parties and between supporters and government security forces resulted in a number of deaths. Vastly different figures exist on the number of related deaths. DFAT assesses that between 200 and 300 deaths occurred.
2.6 Hundreds of Hindus faced intimidation and threats from Bangladesh Nationalist Party and Jaamat-e-Islami activists immediately prior to and following the election, predominantly in southern districts. Numerous local and international media outlets reported that BNP and JI activists had vandalised and burnt Hindu-owned homes and businesses in the southern districts. The perpetrators were predominantly armed with sticks or homemade weapons. Several Hindu temples were also vandalised. Sporadic instances of violence against Hindus also occurred. In Jessore, a Hindu woman was raped at gunpoint, allegedly because her family had voted in the election. A winning Hindu candidate, Ranjit Kaumar Roy, also from Jessore, was attacked and severely injured allegedly by JI activists.
2.7 In the absence of new elections, or a clear roadmap to new elections, it is possible political unrest may re-emerge. In similar periods of unrest throughout Bangladesh’s history, the army has staged military coups and acted as an arbiter to resolve electoral deadlocks. However, there is no expectation of an army intervention in the current context.
The information in DFAT’s Bangladesh Report of October 2014, as outlined above in paragraph 51 written after the above indicates that only leaders or those with a high profiles engaged involved in activism and protests face a risk, not ordinary members or those perceived as ordinary members. In this regard it notes the applicant’s evidence that he has never been politically active or attended a rally, protest or hartel.
Further, as noted above the evidence does not indicate any violence towards members of Tabligh Jamaat nor those dressed in conservative Muslim dress or that young Muslim men have been targeted or there are slogan to slaughter the shibir.
Therefore on the basis of the evidence before me, considered individually and cumulatively, as the Tribunal does not accept he has been truthful that he faced any difficulties in the past and based on the country information as to the treatment of members of Tabligh Jamaat, conservatively dressed Muslims or young Muslim and treatment of mere members or supporters of JeI who are not activists or high profile, the Tribunal does not accept as true he will face any of the difficulties he claims, including persecution, serious harm, physical and verbal harm, threats, ostracism, kidnapping, death and violence.
As a result the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm if he returns to Bangladesh in the reasonably foreseeable future at the hands of the Awami League, the authorities, police, his brother-in-law or anyone else as he is a member of Tabligh Jamaat, his religion, as he will be unable to practise his religion freely, as he dresses and appears as a conservative Muslim, as a young Islamic male, his appearance, as he has a beard, as a “shibir or a young person involved in Tabligh, as many devout Muslims are perceived to follow political parties opposed to the government and mix with people involved JeI, or as is perceived as or imputed to be a member of JeI or for any of the reasons he claims.
The Tribunal has also considered the applicant’s claim of a fear of return at the hands of his brother-in-law. He claims it is both individually and cumulatively because he is with Tabligh Jamaat, his brother is with the Awami League and because of the dispute between his brother-in-law and his sister and their family over the dowry and the child, which resulted in a court case. In this regard the Tribunal has rejected above that he faced any difficulties in Bangladesh from his brother-in-law due to his association with Tabligh Jamaat and his claim he is perceived to be a member, follower or supporter of JeI.
With regard to the past dispute between his brother-in-law and his sister together with his family, the Tribunal accepts the applicant is credible in this regard. He provided a detailed explanation at the entry interview, to the Department and to the Tribunal. However for the reasons below the Tribunal does not accept the applicant faces a real chance of persecution involving serious harm if he returns to Bangladesh at the hands of his brother-in-law due to the dispute with his sister and his family or as a way to take away his sister’s child and/or seek revenge on the family or because he practises Tabligh or because his brother-in-law is with the Awami League. Firstly, the Tribunal has rejected the applicant was individually targeted by his brother-in-law, either directly or through his family, in its credibility findings above either before he departed or since his departure. Secondly, his evidence at the hearing before me was that his family are almost ok, there is still a dispute over the custody of the child but here is nothing much with regard to his family. The Tribunal expects if the applicant was at any risk of harm for this reason his family, including his sister would be facing difficulties. His evidence is however that his sister and his parents with his brother have continued to live in the same house in their home village.
Therefore, on the basis of the evidence before me, considered individually and cumulatively, I am satisfied that the applicant does not now or in the reasonably foreseeable future have a well-founded fear of persecution arising essentially and significantly for one or more of the five Convention reasons if he returns to Bangladesh.
Does he meet the protection obligations under the complementary protection provisions of the Migration Act?
Having regard to my findings above as to the credibility of the applicant’s claims as to past harm and the independent information relating to the treatment of members of Tabligh Jamaat and those who are members or associated with JeI 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 Act at the hands of the Awami League, the authorities, police, his brother-in-law or anyone else as he is a member of Tabligh Jamaat, his religion, as he will be unable to practise his religion, as he dresses and appears as a conservative Muslim, his appearance, as he has a beard, as a young Islamic male, as a “shibir or a young person involved in Tabligh, as many devout Muslims are perceived to follow political parties opposed to the government and mix with people involved JeI, or is perceived as or imputed to be a member of JeI or for any of the reasons he claims.
Similar to the reasoning above, in making this finding it has taken into account the applicant’s claim that the situation has deteriorated since his departure.
As to the applicant’s claim that he faces harm at the hands of his brother-in-law similar to the reasoning above the Tribunal does 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) at the hands of his brother-in-law due to the dispute with his sister and his family or as a way to take away his sister’s child and/or seek revenge on the family either individually or together with his claim that his brother is a member of the Awami League and is targeted him as he is with Tabligh and is perceived to be associated with JeI.
Accordingly, on the basis of the applicant’s evidence considered individually and cumulatively 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.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Gabrielle Cullen
Member
“Millions of Muslims from 150 countries join together in prayers on the final day of Bishwa Ijtema festival in Bangladesh” Daily Mail Australia, 11 January 2016;
Key Legal Topics
Areas of Law
Immigration
Administrative Law
Legal Concepts
Judicial Review
Procedural Fairness
Statutory Construction
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