1420655 (Refugee)

[2017] AATA 3181

1420655 (Refugee) [2017] AATA 3181 (20 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1420655

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:James Silva

DATE:20 January 2017

PLACE OF DECISION:  Sydney

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

Statement made on 20 January 2017 at 5:01pm

CATCHWORDS
Refugee – Protection visa – Bangladesh – Federal Circuit Court appeal – Political opinion – Awami League supporter – Persecution by Bangladesh Nationalist Party supporters – Imputed political opinion – Imputed supporter of Jamaat-e-Islami doing work as imam – Social group – Failed asylum seeker – Credibility issues – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 424AA, 438

Migration Regulations 1994, Schedule 2

CASES

MZAFZ v MIBP [2016] FCA 1081

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a man in his early [age] from Comilla District, Bangladesh. He claims to be a citizen of Bangladesh.

2. The applicant left Bangladesh in December 2012 by boat, without authorisation, and he arrived in Australia on 4 December 2012.

3. The applicant applied for a Protection (Class XA) visa on 4 June 2013. He attended an interview with the delegate of the Minister for Immigration on 5 November 2014.

4. On 13 November 2014, the delegate refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

5. This is an application for review of that decision.

6. The applicant appeared before the Tribunal on 19 October 2016 to give evidence and present arguments.

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

   CRITERIA FOR A PROTECTION VISA

8. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. The relevant law is in Attachment A.

   CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

   Background

9. The applicant is [an age] year old man from Comilla, in Chittagong Division. He is a Bengali, and a Sunni Muslim. His native language is Bengali. He claims to also speak Malay, Hindi and English.

10. The applicant is from [a][1] Village, Chandina Upazila, Comilla District. He lived there until 2011. He then claims to have been based in Narayanganj District, until December 2012, in a [mosque], in [a] Police Station.

    [1] [Source deleted].

11. The applicant attended government primary school for four [years]. All siblings attended government schools. He then went to a religious school[in] Chandpur District, for seven [years]. This was a couple of kilometres from his home. The applicant claims to have been unemployed, and to have helped on the family farm for a few years. He then worked as [an occupation] in Comilla from about 2006 to 2011. His monthly salary was about Taka 5,000.[2]

    [2] $A 84 per month at current exchange rates.

12. The applicant claims to have stopped work as [an occupation] due to political problems in his home area, and to have then worked as an imam in Narayanganj District, until [December] 2012. The mosque met his basic living expenses, and he received a monthly stipend of about Tk 1,000. 

13. The applicant is unmarried. He claims that his father disappeared around the same time as the applicant left home, and his whereabouts remain unknown. His mother and [siblings], moved to Chandpur, also in response to political threats.

14. The applicant claimed that he mortgaged the family home to pay for his travel to Australia, borrowing money from a [villager]. This person sold the debt to [a named person], who used to occupy the house. He claims that BNP activists have now forcibly occupied the house, even though it officially still belongs to the applicant’s family. The applicant claims there is no documentation for the mortgage loan, repayments or any related matter.

15. The applicant claims to have left Bangladesh illegally by boat, transferring to different vessels to make the onward journey to Australia. It appears that he left Bangladesh in late November 2012, as he arrived in Australia on 4 December 2012 after a two week journey.

    Claims

16. The applicant claims to have been a supporter of the ruling Awami League (AL) in Bangladesh, and to have later worked as an imam, from 2011 until his departure for Australia. He claims that members of the Bangladesh Nationalist Party (BNP) dominate in his home area, and have already murdered some neighbours and abducted his father. He fears that members of the BNP or the Islamist Jamaat-e-Islami (JI) will target, and detain, interrogate, torture, abuse or even kill him if he returns to Bangladesh.

17. The applicant also claims to fear that the Bangladeshi authorities and the AL may target him as an imam, by falsely imputing that he is a member or supporter of the JI.

18. The applicant also claims to fear harm if he returns to Bangladesh as a failed asylum seeker, in light of the Prime Minister’s derogatory remarks about illegal migrants and her threat to punish them.

    Evidence

19. The evidence before the Tribunal includes the following relevant material: -

    §Notes from the applicant’s Irregular Maritime Arrival Entry Interview in Darwin on 27 December 2013.

    §The applicant’s protection visa application form completed and signed on 4 June 2013.

    §Statutory declaration dated 4 June 2013.

    §Documents relating to the applicant’s identity and nationality:

    -The delegate referred to the applicant having provided an untranslated copy of a Bangladeshi birth certificate. The Tribunal received a copy of this following the Tribunal hearing.

    §A Protection visa interview (‘Department interview’) held on 5 November 2014.

    §Country information submitted by the applicant, namely an extract of a report by Human Rights Watch in April 2014[3].

    [3] Human Rights Watch: Democracy in the Crossfire, April 29, 2014

    §The delegate’s decision record of 13 November 2014.

    §The applicant’s review application has attached to it a copy of the delegate’s decision record.

    §Submission dated 17 December 2015

    §The applicant’s oral evidence at a Tribunal hearing held on 19 October 2016 (see below)

    §Submission dated 26 October 2016, addressing certain credibility concerns, providing further comments/response to information discussed pursuant to s.424AA of the Act, and summarising aspects of his case

    §Supporting documents presented to the Tribunal:

    -Copy of a letter from [an official] of the AL branch in Barkarai Union, certifying that the applicant is known to the author and is a member of the AL.

    -A copy of a purported medical certificate, which the applicant’s representative described as a ‘copy of a report from a local hospital where the mother of [a named person] and [Mr A] sought treatment’. The document is a certificate on a Bengali-language pro forma, with only the English words ‘physical assault’ and ‘female’ clearly legible. The submission of 26 October 2016 flagged that the applicant was seeking a translation of this document (and his birth) certificate. The applicant advised on 4 November 2016 that he had been unable to obtain a translation thus far. No further correspondence has been received.

    §Further brief submission dated 4 November 2016

20. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearings by telephone from Sydney.

21. The Department issued a certificate under s.438 of the Act, certifying that the disclosure of information in folios 45-48 of the file would be contrary to the public interest, because they contain information relating to an internal working document. In light of the Federal Court decision in MZAFZ v MIBP[4], which considered a s.438 certificate with similar wording, the Tribunal finds that the certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity. The Tribunal further notes that, in any event, the information in these folios is not relevant to the applicant’s protection claims, and the content of this decision.

    [4] MZAFZ v MIBP [2016] FCA 1081, Federal Court of Australia, Beach J, VID 461 of 2016

    Country of reference

22. The applicant claims to be a Bangladeshi national. Although he claims not to hold a Bangladeshi passport, he presented a copy of his Bangladeshi birth certificate. He speaks the national language, Bengali, and showed his familiarity with that country. At the entry interview in December 2013, the applicant is recorded as stating that he is ‘stateless’, and also holds the citizenship of Bangladesh. The Tribunal finds that the applicant mentioned being ‘stateless’ only because he did not have a passport or travel document, and that he correctly identified his nationality as Bangladeshi.

23. The Tribunal is satisfied that Bangladesh is the applicant’s country of reference for the purpose of assessing his claims to be a refugee, and that it is also his receiving country for the purpose of assessing his eligibility for complementary protection.

    Credibility

24. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

25. The Tribunal has significant doubts about the truthfulness of the applicant’s claims. As discussed at the hearing, and formally put to the applicant pursuant to the procedure in s.424AA of the Act, in his Entry Interview on 27 December 2012, he is recorded as giving the following reasons for having left Bangladesh:

    After finishing school I had a job making 1200 taka and that wasn’t enough to support my family. My brother contacted a friend and he said go to a foreign country. This person advised to borrow money and we got a mortgage of the house. My brother will pay them back and then get the house back.

26. Also at the Entry Interview, the applicant added that he cannot return to Bangladesh because: ‘The family was dependent on me. There’s a lack of money and no food.’ Elsewhere, he indicated that the BNP operated in his area, but he had no involvement with them and was not involved in any conflict or fighting. He did, however, claim that his father supported the AL, that the BNP had assaulted him, and that his whereabouts were unknown.

27. In the Tribunal’s view, the applicant’s statements cast strong doubt on his claims, and his need for protection. The applicant and his representative urged the Tribunal not to place much weight on the applicant’s statements during this first interview, when assessing the credibility of his protection claims. They note that the interview was brief, and that the focus was not on protection. They also note that he feared that disclosure of his claims could be revealed to the Bangladeshi authorities, and/or to his BNP opponents, who might harm his family, or him on return. Finally, the submission of 17 December 2015 provides general commentary on credibility assessments, and addresses some of the delegate’s specific adverse findings.

28. The Tribunal considers the applicant’s statements at the Entry Interview were unambiguous. It is not satisfied that the factors set out above adequately explain his failure to mention that he fled Bangladesh for his safety, and needed protection. Nonetheless, particularly given his early mention of his father’s problems and his (the applicant’s) work as an imam, the Tribunal considers it appropriate to assess the protection claims and evidence that he presented later.

    Political claims

    Support for and association with the AL: Family’s involvement

29. The applicant has consistently claimed that his father was a member of the AL. All members of the applicant’s family supported the party, although most of them were not active members. Country information indicates that the AL is one of the oldest and largest political parties in Bangladesh, that it enjoys widespread support, and that it currently forms the national government. The Tribunal accepts that the applicant and his family members at least support the party.

    The applicant’s profile

30. As noted above, the applicant indicated at his Entry Interview that he was not personally involved in politics, although his father was. In his statement of claims and subsequent evidence, however, the applicant has claimed to be an active member of the AL. For instance, in his original statement he claimed that, together with his father, he ‘organised meetings at the ‘police station’ level, and tried to recruit other party members by talking to members of the public.’ He went on to explain that there were about [number] AL supporters in their [village]. ‘We’ (by implication, the applicant and his father) used to hold AL meetings about every one or two months, with about 60 participants at each meeting.

31. In assessing the applicant’s engagement with the AL and his profile (in the eyes of the BNP), the Tribunal has taken into account the following:

    § At the hearing, he showed some familiarity with the AL and local politics. For instance, he said that in 2008, he voted for the successful AL candidate in the seat of Comilla-7, Principal Md Ali Ashraf,[5] and he named an opposition candidate, Redoan Alam.

    §  The applicant provided a letter from [Mr B], AL [official] of Barkarai Union, dated [June] 2013, which attests that the applicant was involved in the Barkarai Union AL ‘as a member’. At hearing, the applicant said that he did not in fact lived in Barkarai Union (a union is a local government administrative union of nine villages or wards), but rather in the neighbouring union. Asked why he produced a letter from another area, he said that he knew [Mr B] from AL functions, and his mother had collected the letter from him. In response to further questions, the applicant said that he was not personally in contact in [Mr B]. Country information discussed at the hearing indicates that a high level of document fraud in Bangladesh. This includes a willingness on the part of political figures to write letters of support for friends or constituents, sometimes for payment, without vouching for the truth of their contents. Given the anomalies in this case – that the author is not from the applicant’s area, and that the applicant does not maintain contact with him – the Tribunal places very little weight on the letter as independent corroboration of the applicant’s claims.

    §  The Tribunal explored with the applicant other avenues that were material relevant to his claim. For instance, it asked about his voter ID card, and whether he had any photographs or other materials relating to his claimed political activities. The applicant sometimes appeared uncertain, and referred to having lost some documents. Relevantly, the applicant claimed to have been involved in a number of political activities over a number of years. In the Tribunal’ view, it is surprising that these have not generated at least some supporting evidence. Moreover, the applicant’s apparent lack of interest in checking whether he or any friends has such material strongly suggests that there is in fact none. This, in turn, adds to the Tribunal’s doubts about his claimed political profile.

    §  In the Tribunal’s view, the applicant was indifferent when asked whether he maintains contact with any former AL colleagues. He responded briefly ‘no’, adding that they were not able to prevent the murder of two friends, and will not be able to help him. The Tribunal got no sense of the applicant sharing political values, or past experiences with such people, or of being concerned about their welfare.  

    [5]

32. Having regard to the applicant’s evidence as a whole, the Tribunal accepts that he supports the AL, voted for it in the 2008 parliamentary elections, and may have attended some meetings. However, it does not accept that his involvement extended beyond that. It does not accept that he is a member, that he engaged in political activities (such as organising or hosting meetings), or that he was perceived by the BNP or other opposition groups as being an AL member or person of influence. It also does not accept that the applicant has any political profile through his association with his father.

33. The Tribunal accepts that the applicant may have witnessed some corruption in Bangladesh, as it is endemic to that country. However, given its assessment of his political profile and interests, the Tribunal does not accept that he has witnessed any specific corruption in his home area that is, or would be perceived as being adverse to the political interests of the local BNP.

    Attacks on the applicant’s father and friends

34. The applicant claims that his village is a BNP stronghold, such that BNP figures have been able to target him, his father and other AL members, with impunity. He claimed that there were several incidents that ultimately led to his father’s disappearance and the applicant’s flight from Bangladesh:

    §  In 2008, just before the national parliamentary elections, two BNP members asked the applicant and his father to attend a BNP political meeting, but they declined, saying they were busy.

    §  One month after the 2008 parliamentary elections (hence, in January 2009), these two men approached the applicant and his father while they were returning home from the mosque. They asked why the applicant and his father did not go to the BNP meeting, and made a menacing comment as to whether or not they wanted to live. The applicant and his father ignored the men, but avoided them when they saw them in public.

    §  In 2009, eight BNP members approached a neighbour, [Mr A][6], in a remote area, and beat him to death.

    §  In early 2012, the applicant’s father was abducted and held to ransom. Upon his release, he disappeared and has not been heard of since.

    -    In early 2012, the applicant’s father was working alone in a field where mainly rice was grown. Around 4pm, or early evening, four BNP members came and started to assault him. They then dragged him to the local BNP Chairman’s ([Mr C]) home. Some villagers saw this happen, but could do nothing as they were afraid of the BNP. [Mr C]’s son[was] one of the men who abducted the applicant’s father – he was one of the two men who had earlier threatened the applicant and his father.

    -    The men demanded that the applicant’s father pay Tk [amount]. Village elders approached [Mr C]’s home, asking for the father’s release. [Mr C] eventually released the applicant’s father, but only on condition that they pay the ransom in due course.

    -    The applicant’s father fled the village the day of his release, knowing that he would never be able to raise the money, and fearing for his life. The applicant has not heard anything more from him, and does not know his whereabouts.

    §  After lodging his protection visa application in June 2014, the applicant’s mother informed him that BNP members killed [Mr A]’s brother, [Mr D][7]. [Mr D] had telephoned the applicant earlier, to tell him that the BNP members are looking for him (the applicant). The applicant believes that [Mr D]’s murder is linked with the BNP’s ongoing pursuit of the applicant.

    [6] This name also appears as ‘[variation of name]’

    [7] Also recorded as ‘[variation of name]’

35. The Tribunal has significant concerns about these claims, as a whole.

    §  The applicant characterised his village as a BNP stronghold, where BNP cadres act with virtual impunity, targeting AL members and activists (although the Tribunal has already rejected the applicant’s claim above that he is an AL member or activist). However, he also stated that in his village of about [number people], there were some [number] AL supporters. As discussed at the hearing, the AL forms the national government and won the applicant’s seat of Comilla-7 in the 2008 parliamentary elections. Given the AL’s record of strong action against its political opponents, and the demographics of the applicant’s area, it is difficult to believe that there is an enclave where local BNP cadres act with virtual immunity. Even if there were a local BNP strongman who intimidates local AL supporters – who, by the applicant’s own account, still make up about a third of the village inhabitants – it seems highly unusual that he could carry out murders and disappearances without attracting attention from AL leaders and officials, and from the media.

    §  The applicant’s account of his and others’ conduct in response to the alleged BNP violence and threats is also problematic. For instance, he claims that following the verbal threats from BNP cadres (in late 2008 and early 2009), he and his father merely avoided contact with them. Despite the alleged murder of an AL friend in the village some time in 2009, the applicant remained working there as [an occupation] for up to two years, without any apparent consequences. The applicant’s account of the precautions that he took was, in the Tribunal’s view, unpersuasive. He appeared to be addressing the Tribunal’s concerns, in an ad hoc way, rather than recounting his actual lived experiences.

    §  The Tribunal’s enquiries about the peripheral aspects of these claims – such as requests for protection from the authorities and/or the ruling AL party; whether the murders attracted media attention; and the consequences for the applicant and his friends/family – yielded very little.

    -   For instance, although the applicant claimed that his political friend [Mr A] was murdered in 2009, he did not know of any press coverage of the murder. It was only when pressed as to whether he, [Mr A]’s family or other local AL supporters had sought protection and justice, that he mentioned that [Mr A]’s mother reported it to the police, but they ‘took no action’. In response to the Tribunal’s observation that, even after the alleged murder, the applicant had stayed working in the small village for another year or two (from 2009 to 2011), he commented vaguely that he used to take a different route to work, and avoid the BNP people.

    -   In a similar vein, the applicant claimed that BNP cadres associated with the local BNP Chairman abducted his father, and demanded Tk [amount][8] ransom; and that eventually village elders managed to negotiate his release, on the understanding that he would eventually pay up. At the hearing, the applicant added that the kidnappers threatened to kill his father, unless he left the BNP (thereby adding a political dimension to this claim that had not been clearly stated previously), and that it was his mother who sought the intervention of the village elders. The applicant claimed that his father has since disappeared. When asked about any efforts to locate him – for instance, with the assistance of the AL, village elders, the Bangladeshi authorities, or others – the applicant replied that there have been no efforts. It was after the Tribunal’s expressed its surprise that he added that he did indeed ask some AL party colleagues if they knew where his father was. The applicant said that he did not want to further actions, for fear of BNP retribution. The Tribunal disbelieves this account, and the applicant’s explanation. In its view, the applicant had not turned his mind to this aspect of his claims, and it raises doubts about their truthfulness.

    §  Another recurrent concern is that the applicant’s narrative of these incidents included details that could only be known by an eyewitness – for instance, the father’s abduction of his father at 4pm, by four BNP members (one of them being the son of the local BNP chairman); and the mistreatment, discussions and threats that took place in the chairman’s home. When asked at the hearing for the source of these details, the applicant replied vaguely that villagers saw what happened, but were too afraid to intervene or seek help. The Tribunal is not satisfied that this explains the detail that the applicant was able to provide, in various locations. The applicant said that his father returned home that night, but did not indicate that he had a chance to brief the family on what had happened. In sum, the Tribunal is concerned that the applicant’s claims are not based on what he saw or what he heard from others, but rather that they have been devised for the purpose of establishing a basis for protection. The unusual detail that he provides on these incidents, contrasted with his vague responses when asked about peripheral detail, causes the Tribunal to doubt that they occurred at all.    

    [8] Approximately $A [amount] at current exchange rates

1. The abduction of the applicant’s father, the ransom demands and his unexplained disappearance are critical to this case, as the applicant claims that this made him realise that his life was in danger throughout Bangladesh. This prompted him to flee. As noted above, the lack of context and detail for this and other claims causes some doubts. The detailed exchange at the Tribunal hearing revealed other loose ends.

   §  For instance, the applicant told the Tribunal that his mother and siblings left their village to live in Chandpur, her home area, even before the applicant went to Narayanganj (hence around 2010 or 2011). It is far from clear then, why the applicant’s father remained in the home village.

   §  Also puzzlingly, the applicant said that he was actually at home when his father was released from captivity, returned home and then disappeared from their lives. Asked why he was in the village – given that he had allegedly ‘relocated’ to Narayanganj for his safety – the applicant said that his father had been unwell, perhaps linked with the political pressure that he had been under, and he had returned to the village to see him.

   §  Oddly, after initially telling the Tribunal that his mother and siblings moved to Chandpur sometime previously (the applicant thought that it had been prior to his move to Narayanganj), the applicant then said that it occurred after his father’s disappearance.

   §  Given that his father’s disappearance (allegedly) triggered the applicant’s decision to leave Bangladesh, and that he funded his travel by mortgaging the family home, the Tribunal asked for details. The applicant said that the family organised the mortgage after his father’s disappearance. His [brother] negotiated it. The applicant was not sure whether or not his [brother] had to return to the village for this purpose. The Tribunal finds that the applicant’s changeable evidence about when his family moved to Chandpur, and when they took out a mortgage on their home to fund his travel abroad, casts further doubt on his narrative, including the abduction and later disappearance of his father.       

2. The Tribunal’s concerns about the truthfulness of these claims are extensive. They include the inconsistency between his portrayal of political and security conditions in his local area – where he claims a local BNP union chairman and his henchmen carry out murders, extortion and threats against AL supporters without interference from AL leaders or the Bangladesh authorities at more senior levels (such as thana or upazila) – and country information. They also include changes, gaps and anomalies in the applicant’s own claims and evidence.

3. The Tribunal accepts that politics in Bangladesh, including at a local level, is marked by corruption and violence. It is prepared to accept that there is a BNP chairman in the applicant’s union; that he exercises favouritism towards political friends; and that he sidelines or even intimidates AL supporters. However, the Tribunal does not accept the applicant’s claims that the BNP chairman and his activists targeted the applicant and his family. The Tribunal does not accept the following:

   §  The applicant and his father were subject to ongoing threats by BNP activists; they feared for their lives; and they continued to live in the village, but took care to avoid the BNP people.

   §  The applicant’s father was subject to death threats and other intimidation, upon demand that he join the BNP.

   §  The applicant’s friend and political colleague, [Mr A], was murdered in 2009.

   §  The applicant’s father disappeared after being released by BNP, for his safety, and has not been heard of since. (The Tribunal finds that, if the applicant has in fact not been in contact with his father, it is for unrelated reasons.)

   §  [Mr A]’s brother, [Mr D], was murdered in the second half of 2014; that [Mr D] told the applicant that BNP activists were continuing to ask after him (the applicant); and that the applicant infers that [Mr D]’s murder signals the BNP’s ongoing adverse interest in him.

   §  The applicant and his father have required, but been unable to obtain, police protection in their union, due to political, financial or other corrupt behaviour by the local BNP. Given the absence of detailed, consistent evidence about the applicant’s efforts to obtain protection from other sources – like the AL or the Bangladeshi authorities in other locations or at more senior level – the Tribunal concludes that the applicant did not seek State protection because he did not require it.

4. The applicant claimed that his family left the village for his mother’s home, after taking out a mortgage on their home. His account of this - the timing, how it meshed with his father’s disappearance, the role of his [brother] in arranging the mortgage, the alleged transfer of the debt from one person to the next, and the lack of documentation in relation to the property - was muddled. The Tribunal formed the view that there exists a mortgage or rental arrangement of some kind, and the family still has the property in the village. However, the applicant evidently had trouble sequencing this with other aspects of his protection claims – his travel (to Narayanganj, and later Australia), his family’s move to Chandpur, and the alleged abduction and later disappearance of his father. The Tribunal therefore does not accept that the BNP has illegally occupied the property, and that the applicant’s family has no power to assert their rights.

5. The Tribunal accepts (albeit with reservations) that the applicant to work in Naranganj in 2011, but it finds that he did so for reasons unrelated to his protection claims. Similarly, it accepts that his mother and siblings now live in Chandpur, her home area. However, it does not accept that they moved there, or that the applicant’s father is missing, for any reasons related to his protection claims.

6. The Tribunal does not accept that BNP activists in the applicant’s village or union had an adverse interest in him, either personally or due to his association with his father, while he lived in the village, or after he moved to Narayanganj, or after he left Bangladesh.

   Claims based on work as an imam

7. The applicant has consistently claimed to have worked as an imam in a mosque in Narayanganj District, from about 2010 or 2011, until his departure from Bangladesh in late 2012. His attendance at a religious school [could] be consistent with this. However, several aspects remain puzzling. For instance, it is not clear how he applied and qualified for a position as the sole imam at the mosque, given his only work experience to date had been as a farmer and [an occupation]. It is also not clear why, if he was ‘relocating’ to another place in Bangladesh due to the BNP’s dominance and oppression in his home area, his father and other family members stayed there until much later.

8. The Tribunal explored with the applicant whether he had any correspondence, photographs or other evidence to support his claimed work as an imam. He replied briefly that he did not, and that he does not now have any contact with people from that mosque.

9. The Tribunal accepts that the applicant worked as an imam in Narayanganj District from about 2011 to late 2012. It does so with considerable reservations, as it does not consider that the applicant has attempted to give a full and frank account of his activities during this period, and he has resolved inconsistencies in his oral evidence (such as when the family mortgaged their home to pay for his overseas travel).

10. For the reasons stated above, the Tribunal does not accept that the applicant moved to Narayanganj to flee danger in his home area. Rather, it finds that he took up the position for unrelated reasons.

11. As noted in the delegate’s decision record, which was attached to the review application, the applicant did not raise any protection claims based on his work as an imam until late in his Department interview. At the Tribunal hearing, the applicant claimed (in the context of discussing his possible relocation in Bangladesh) that it was unsafe for him even outside his village. As an imam, the police could see his clothing and beard, and mistakenly assume that he was a JI or Islamic Chhatra Shibir (the JI’s student wing) supporter, and give chase. Asked whether this had happened to him in the past, the applicant said that when the police saw him, they would start beating him up even before asking questions. This did not happen all the time, just some of the time.

12. The Tribunal is concerned that the applicant introduced these claims as an afterthought only. Furthermore, it found his evidence to be vague and improvised. As discussed at hearing, it has found no country information to indicate that imams in Bangladesh, or persons with beards and traditional Muslim clothing, are assumed by the Bangladeshi authorities to be JI, and beaten up without being questioned.

13. The Tribunal does not accept that the applicant, while working as an imam, or while appearing in public with a beard and Muslim clothing on other occasions, attracted the adverse attention of the police or other authorities, and was harassed or beaten up. It also does not accept that the applicant had a genuine fear of such treatment while working as an imam in Narayanganj, or while out in public generally.

    Departure from Bangladesh

14. The Tribunal accepts on the limited available evidence (and despite some reservations about his activities from 2011 on) that the applicant departed Bangladesh without a travel document or visas, and that he did so illegally from a place that is not a recognised departure point.

15. In light of the above assessment, the Tribunal does not accept that the applicant fled Bangladesh in response to politically motivated threats from the BNP, JI, the Bangladeshi police (or other authorities) or anyone else. The Tribunal finds that he left Bangladesh for other, unrelated reasons.

    Events following the applicant’s departure

16. As noted above, the Tribunal does not accept that an AL friend of the applicant’s, [Mr D], was murdered in mid-2014, or that this signals the BNP’s ongoing adverse interest in the applicant. The Tribunal also does not accept that there have been any other developments relevant to the applicant’s protection claims, since he departed Bangladesh in late 2012.  

    Summary of findings

17. The Tribunal accepts that the applicant is a supporter of the AL, who and a devout Muslim, who worked for several years as an imam in Narayanganj before coming to Australia. It also accepts that the applicant lived in a village whose union chairman was a BNP politician. It is possible that the applicant and his family experienced some pressure or minor harassment, and that they witnessed the union chairman and others act corruptly to favour his political cronies.

18. The Tribunal does not accept that the applicant was a member of the AL, engaged in any organisational or other support work for the party, or that the BNP or others perceived him as having any political profile. The Tribunal also does not accept that the applicant has any profile or imputed political opinion as a result of his father’s political stance, or that of any family member. The Tribunal does not accept that a close political friend in the village was murdered in 2009; or that this friend’s brother was murdered, after BNP people had questioned him about the applicant.

19. The Tribunal accepts that the applicant worked as an imam in Narayanganj for almost two years, but it does not accept that his work as an imam or his appearance (with a beard and traditional Muslim clothing) led the Bangladesh authorities or anyone to presume that he was a JI supporter or sympathiser, or to target and mistreat him.

20. The Tribunal does not accept that he and his father were subject to credible, serious threats from BNP activists (although there may have been some minor harassment or insults, and some demands for protection money); that BNP people murdered a political friend (‘similar’ to the applicant) in 2009; that the applicant’s father was abducted and held for ransom; that his father was released only after village elders intervened; that he has a substantial ransom sum to pay; that the applicant’s father disappeared after his release, due to BNP threats; or that his father’s whereabouts remain unknown, as a result of such political/criminal targeting.

21. The Tribunal does not accept that BNP activists were looking for the applicant, with a view to harm him – while he was still living in the village, after he left to work as an imam in Narayanganj, or any time after his departure. It finds that the applicant left Bangladesh for reasons unrelated to his protection claims.

22. The Tribunal accepts that the applicant left Bangladesh illegally; that he does not have a Bangladeshi passport; and that he would need to approach the Bangladeshi authorities to obtain a travel document if he were to return home.

    ASSESSMENT: REFUGEE CRITERION

23. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct if he returns to Bangladesh, and relevant country information, whether he has a well-founded fear of Convention-related persecution, now or in the reasonable foreseeable future.

24. The Tribunal has considered, but does not accept, that the applicant was unable to stay in his home village because of the threats from BNP people. Although it accepts that his mother and siblings – and possibly his father – now live in another location, the Tribunal does not accept the applicant’s claim that he or they fled the village for their safety. The Tribunal also does not accept that the BNP has illegally occupied the family home, although it may be subject to a mortgage or rental agreement. The upshot is that it is difficult to determine whether the applicant will in fact return to his village, although the Tribunal is satisfied that there are no past events or threats that would prevent him from doing so. The Tribunal therefore assesses his protection claims in relation to his home area, in Chandina upazila.

    Political claims

25. For the reasons stated above, the Tribunal accepts that the applicant supports the AL, and that he has in the past been involved in some AL activities. The Tribunal accepts that the local BNP chairman and his offsiders may favour their political friends and harass opponents, including AL supporters, to a minor extent. However, it does not accept that the applicant has suffered serious harm in the past, serious harassment, death threats, the murder of two political friends (in 2009 and 2014, with psychological impact on the applicant himself), the abduction and attempted extortion of his father, his father’s disappearance (for his own safety), the dislocation of his family to another area, and/or the de facto loss of the family home to illegal BNP occupants. The Tribunal has rejected all associated claims, too.

26. The Tribunal accepts that the applicant would likely return to his village in Chandina Upazila, where the family still owns their own home, although there is some uncertainty about this given the family’s current location. The Tribunal accepts that the applicant will continue to support the AL if he does so, and that there remains a strong (though not overwhelming) BNP presence in their union (that is, in the applicant’s village and some neighbouring villages).

27. The Tribunal does not accept that the applicant has suffered serious harm for reasons of his political activities in the past, including any threats or physical harm, psychological harm, or needing to take precautions, such as refraining from political activity.

28. Country information, including the Department of Foreign Affairs and Trade July 2015 Country Report – Bangladesh, indicates that there are high levels of political violence in Bangladesh. Of particular concern is violence exerted by the ruling party, which typically controls all public institutions, against opponents. There are also incidents of intra-party violence, including within factions of the AL.

29. Given the Tribunal’s findings that the applicant supports the ruling party, and that his involvement is very low key, and also given its assessment of his past experiences in Bangladesh (in Chandina Upazila, the Tribunal finds that there is no real chance of him being subject to serious harm amounting to persecution, from the local BNP chairman, activists or officials. The Tribunal finds that he does not have a well-founded fear of persecution for reason of his political opinion.

30. The applicant’s original statement of claims posited that he also fears persecution for reason of his membership of a particular social group, ‘individuals who have held information (the witnessing of corruption) adverse to the interests of the BNP in Bangladesh’. Neither the applicant nor his representative pursued this claim. The Tribunal accepts that the applicant may have witnessed some corruption in the past, as it is a widespread problem in Bangladesh, but given its findings above – that he did not have any profile, and that he did not leave his home area to escape persecution or other adverse attention, the Tribunal does not accept that he holds any information that would motivate local BNP officials (or others) to pursue him. It finds that there is no real chance of BNP figures, or others, seriously harming him due to his possession of any such knowledge. It is therefore not necessary for the Tribunal to assess further whether there exists such a particular social group, and whether the applicant is a member of it. 

31. In sum, the Tribunal does not accept that the applicant faces a real chance of harm at the hands of local BNP officials due to his low-level support for the ruling AL, or for any associated political reason.

    Imam in Bangladesh

32. The applicant did not claim to fear persecution as an imam until late in his Department interview. The submission of 17 December 2015 claims that there is a real chance of the Bangladeshi authorities persecuting him as an imam, namely for reason of his membership of a particular social group ‘imams in Bangladesh’, or for his imputed political opinion, associated with the JI. The submission refers to a report of rising tension in Bangladesh following the death sentence against a well-known cleric and former JI leader, in February 2013.[9]  

    [9] Walls Street Journal blog, Syed Zain Al-Mahmood: War Crimes Trial Verdicts Put Bangladesh on Edge, February 5, 2013, 

33. Although the applicant claimed to have been targeted in his home village and in Narayanganj, as the authorities suspected him of being a JI supporter due to his work as an imam, and his traditional Muslim appearance, the Tribunal does not accept that he suffered any such harm. Furthermore, the report that the applicant’s representative forward points to JI’s rising anger against the death sentences, directed in part against ‘clerics’. Neither this report, nor general country information, indicates that imams in Bangladesh, or people who dress as conservative Muslims (with a beard and traditional garb, for instance), are assumed to be supporters of JI, or there facing a real chance of being targeted by the authorities.

34. The Tribunal is not satisfied that there is a real chance of the Bangladeshi authorities, or members of the general public, perceiving the applicant to be a JI supporter or activist, for reason of his past work as an imam, or in the event that he again takes up a position as an imam. The Tribunal is not satisfied that there is a real chance of the applicant suffering serious harm amounting to persecution for any associated Convention reason.  

    Relocation

35. The Tribunal discussed with the applicant whether, if he had a well-founded fear of persecution for a Convention reason in his home village, relocation within Bangladesh would be a safe and reasonable option, in the sense of ‘practicable’ in his personal circumstances. The applicant reiterated that his village is too dangerous, and that elsewhere in Bangladesh, the AL and the police might mistake him for a JI or ICS activist, because of his work as an imam and his appearance. The Tribunal has considered, and rejected, each of these above, as a basis for any well-founded fear of persecution.  Given its finds that the applicant does not have a well-founded fear of Convention-related persecution in his home village, it follows that the Tribunal does not need to consider whether relocation is an appropriate option for him.  

    Failed asylum seeker

1. The submission of 17 December 2015 refers to press reports in which Prime Minister Sheikh Hasina is quoted as saying that illegal emigrants are ‘mentally sick’, and calling for their (unspecified) punishment.[10]  It contends that the applicant faces a real chance of harm, due to his membership of a particular social group ‘failed asylum seekers’ and that, in light of country information about poor prison conditions in Bangladesh, any imprisonment ‘will amount to persecution’.

   [10] The reference given is Sydney Morning Herald, Bangladesh PM Sheikh Hasina slams starving migrants as ‘mentally sick’,

2. The Tribunal has accepted above that the applicant left Bangladesh illegally, without a passport, and that the Bangladeshi authorities would likely come to know that he is a failed asylum seeker, if he were to apply for a travel document to enable his return.

3. At the hearing, the Tribunal discussed with the applicant country information concerning the treatment of returnees (including those who departed illegally and who are known or believed to have sought asylum abroad). It drew on DFAT”s July 2016 guidance:

   5.21 Bangladesh accepts both voluntary and involuntary returnees. IOM’s Assisted Voluntary Returns and Repatriation (AVRR) program provides assistance to Bangladeshi returnees in cooperation with the returning country and the Government of Bangladesh. DFAT understands that recent returnees from the United Kingdom have not been subjected to any adverse attention by the authorities or others. Although Bangladesh agreed to accept a number of Rohingya returnees during the Andaman Sea crisis in May 2015, Bangladeshi authorities have generally insisted on verifying the identity and Bangladeshi citizenship of returnees (including Rohingyas) before authorising their return.

   5.22 DFAT assesses that most returnees, including asylum seekers, are not subjected to adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia.

4. The Tribunal summarised that – irrespective of any statements that the Bangladeshi Prime Minister may have made about asylum seekers or any official positions on illegal departures – it is not aware of any instances where Bangladeshis returning to the country being punished for reason of having departed illegally or having sought asylum abroad. It also drew on DFAT’s July 2016 Country Report, which states: ‘A significant number of Bangladeshis continue to seek higher wages overseas: as of early 2016, there were an estimated 8.6 million Bangladeshi migrants worldwide. Bangladesh received over USD 13 billion in remittances in 2015, which accounted for approximately 12 per cent of gross domestic product (GDP).’ These workers include persons who hold valid visas or are subject to work contracts, visa over-stayers and illegal emigrants.

5. The Tribunal is confident that, if the Bangladeshi authorities were punishing Bangladeshis who departed illegally or who sought asylum abroad, this would generate reports in Bangladesh and abroad.  

6. In sum, the Tribunal accepts that the applicant departed Bangladesh illegally and that the Bangladeshi authorities would become aware of his circumstances if he were to return there as a failed asylum seeker. It is not satisfied that the applicant faces a real chance of harm amounting to persecution because of the circumstances of his departure or of his return. It follows that the Tribunal is not satisfied that this gives rise to a well-founded fear of persecution on the basis of political opinion (actual or imputed), or any associated particular social group. The Tribunal does not accept that the applicant’s past support for the AL or his past work as an imam, or any other factors, would establish him as a person of interest to the Bangladeshi authorities, such that they might scrutinise or take an adverse interest in him on his return.

   Conclusion

7. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. For the reasons set out above, it does not accept that if the applicant returns to Bangladesh now or in the foreseeable future that there is a real chance he will face serious harm for reasons of his past association with the AL in his home village, his family’s support for the party, his past work as an imam, his having sought protection in Australia, or for any other reason. The Tribunal does not accept that he has a well-founded fear of persecution for reasons of political opinion or for any other Convention-related reason (including his claimed membership of particular social groups).

8. The Tribunal finds that the applicant does not have a well-founded fear of persecution for reasons of political opinion or for any other Convention related reason, now or in the reasonably foreseeable future, if he returns to Bangladesh. It is therefore not satisfied that he meets s.36(2)(a).

   ASSESSMENT: COMPLEMENTARY PROTECTION

9. The Tribunal has considered whether on the evidence before it, there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh.

10. Neither the applicant nor his representative raised any additional factual claims that relate to his eligibility for complementary protection. The submission of 17 December 2015 summarises the law relating to complementary protection, but does not identify any further bases on which the applicant claims to require it. 

11. The above findings of fact – that the applicant supports the AL, but did not have any more extensive profile (personally or through his family), and that he worked for about two years as an imam in Narayanganj – do not, in the Tribunals view, give rise to substantial grounds for believing that there is a real risk that he will suffer significant harm

12. The applicant’s submissions and oral evidence raised at least an implied claim about general conditions in Bangladesh, such as political violence and corruption. Country information indicates that there are generally high levels of political violence in Bangladesh, both between and within the major parties. However, the findings above that the applicant’s political interests involve only a general preference for the AL, and that he has no other current or future profile,  indicate that he does not face a real risk of significant harm arising from these circumstances.

13. The applicant also alluded indirectly to concerns about corruption and criminality. Country information also indicates high levels of corruption and criminal activity in Bangladesh. The Tribunal accepts that the applicant might have witnessed or experienced some corruption, particularly if living in a BNP-dominated village and union. However, it is not satisfied that this has in the past, or will in the reasonably foreseeable future, result in significant harm being inflicted on him. Furthermore, in the Tribunal’s view, these relate to the general security situation in Bangladesh, and associated economic concerns. Under s.36(2B)(c) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the lack of general security and instability that the applicant alluded to is faced by the population generally and not by him personally.

14. For the above reasons, the Tribunal is not satisfied that the applicant’s circumstances give rise to a real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. 

15. 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: s.36(2)(aa).

    Overall conclusion

16. 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).

17. 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).

18. 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

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

    James Silva
    Member

    
    

    ATTACHMENT A: 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.