1421016 (Refugee)

[2016] AATA 4269

1421016 (Refugee) [2016] AATA 4269 (18 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1421016

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Penelope Hunter

DATE:18 August 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.

Statement made on 18 August 2016 at 3:40pm

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. 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).

2. The applicant who claims to be a citizen of Bangladesh, applied for the visa [in] August 2013 and the delegate refused to grant the visa [in] December 2014.

3. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Although the delegate refused the application as an application for a Protection (Class XA) visa, the effect of r.2.08F is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD) visa.

4. The applicant appeared before the Tribunal on 30 May 2016, 17 June 2016 and 27 July 2016  to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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).

8. 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.

9. 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’).

   Ministerial Direction

10. 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.

    CLAIMS AND EVIDENCE

11. The applicant arrived in Australia by boat [in] December 2012. He claimed to be born on [date] in [location], Jhenaideh District, Bangladesh. He stated that he was a Bangladeshi citizen of Bengali ethnicity and a Sunni Muslim.

12. [In] December 2012, the applicant was interviewed by a representative of the Department, together with a Bengali interpreter. When asked why he left his country of nationality the applicant responded “mainly for economic reasons, not enough income and many members in the family, we are struggling”. It is further recorded that the applicant claimed that he had not been involved or associated with political groups or organisations and was not involved in any activities or protests against the government. He claimed to have left Bangladesh in October 2012 and travelled to [country] on a genuine Bangladeshi passport issued in his own name which he disposed of in [that country].

13. [In] February 2013, the applicant took part in an identity interview with a representative of the Department. It is recorded that he applicant claimed that his family had been involved in a property dispute with relatives and neighbours, that the applicant had been threatened with being killed and for this reason he was forced to leave his family farm.

14. In a statement, dated [in] August 2013, accompanying his claim for protection the applicant sets out the following information;

    (i)He had been an ardent supporter of Jamaat e-Islami (JeI) since his early days at school. In [year] he enrolled in the [Suburb 1] [college] where he studied for [number] years, [grades]. In this period he became actively involved in JeI and attended several meetings organised by the student wing (Islami Chhatra Shibir).

    (ii)After leaving college in [year] he continued to be involved with JeI and became more active. In 2008 prior to the general elections he accompanied a Bangladesh Nationalist Party (BNP) [candidate] and supporters of the BNP as the BNP and JeI party had become allies.

    (iii)One month after the 2008 general election the applicant narrowly escaped being seriously harmed by student members of the Awami League (Chatra League) while he was in [Suburb 1]. Several of his friends who were members of JeI were harmed that day.  

    (iv)Two months after the 2008 general election the applicant was attacked by members of the Chatra League while he was heading to his former college in [Suburb 1]. He was injured by a machete and he has a visible scar close to [an area of his body]. Though this incident was reported to the Bangladeshi police they did not take any action.

    (v)After this incident the applicant kept a low profile and did not engage in political activities for a period of time as he was afraid.

    (vi)Sometime during the last quarter of 2011 the applicant once again got involved with the JeI as he could not contain his true political beliefs and opinions. He felt he could make a difference to the Muslim people in his community by joining the party.

    (vii)In early 2012 he went to visit a politically active JeI friend who was residing in a nearby village of [Village 1]. As he arrived he saw members of the Awami League and BNP clashing. One member of the Awami League was killed that day and there was a large crowd. The applicant was beaten trying to break up the fight.

    (viii)After this incident the applicant did not remain at home as he feared the members of the Awami League would seek revenge.

    (ix)A few days later two Bangladesh police officers came to his residence to search for him. As he was not at home the officers notified his parents that an arrest warrant had been issued and he was wanted with a few others as he was suspected as responsible for the killing of the Awami League member. The police officers assaulted the applicant’s [sibling].

    (x)The applicant relocated to Dhaka to live with his [relative], and then fled the country as he feared that he would eventually be tracked down by the authorities.

    (xi)The case against the applicant continues due to the incident that happened in early 2012.

    (xii)He believes he would be seriously harmed and possibly killed by members of the Awami League as he is a staunch supporter of JeI.

    (xiii)He believes that the Bangladeshi authorities would falsely accuse him of being a party to the murder and hence he was at risk of being executed if convicted of murder.

15. On 14 August 2014, the applicant advised the Department that his parents had recently informed him that the members of the Awami party frequently attend their house looking for the applicant. His parents were harassed by the authorities on a regular basis. The authorities have also physically assaulted his [sibling].

16. The applicant attended an interview with the delegate [in] December 2014. He has provided the Tribunal with a copy of the decision of the delegate dated [in] December 2014. The delegate considered that the claims of the applicant were fabricated and not credible. The delegate did not accept the applicant’s claims that he was involved in JeI or that there was a case against him for the murder of an Awami League supporter.

17. The applicant attended the Tribunal on three occasions to give evidence. On 30 May 2016, the hearing was adjourned at the request of the representative of the applicant due to time constraints. At this hearing the applicant provided to the Tribunal further documents including country information and a copy of the Police First Information Report (FIR) detailing the pending case against the applicant. The Tribunal request that a translation of the FIR be provided by the applicant. The Tribunal hearing resumed on 17 June 2016, the applicant requested additional time to provide a translation of the FIR due to financial constraints. The Tribunal agreed to a further adjournment to enable the applicant to obtain a translation, however the applicant was reminded that a translation of the document was requested by the delegate at his interview [in] December 2014. The Tribunal rescheduled the hearing to 25 July 2016. On 20 June 2016, the applicant requested that the hearing be rescheduled. The Tribunal rescheduled the hearing to 27 July 2016. On 22 July 2016, the applicant’s representative submitted to the Tribunal a translation of the First Information Report. The applicant also made a further request for the Tribunal hearing to be postponed in order to clarify information in the report. The Tribunal declined the request for the adjournment as it was considered that the applicant being in possession of the FIR for several years had had sufficient time to clarify the contents. The Tribunal hearing proceeded on 27 July 2016.

18. At the conclusion of the hearing the applicant requested time to respond in writing to concerns raised by the Tribunal. On 1 August 2016, the Tribunal received from the applicant’s representative a further unsigned statement of the applicant. Where relevant the material contained within is set out below. Also included was a document on the letterhead of the Bangladesh Islami Chhartrashibir.

19. The Tribunal acknowledges the passage of time between the hearing dates, however the Tribunal has listened to a copy of the electronic recordings in the preparation of these reasons.

    FINDINGS AND REASONS

20. The applicant claims that he is a citizen of Bangladesh and has provided the Department with a copy of his birth certificate, National Identity Card and [senior official]’s Certificate. The Tribunal finds that the applicant is a national of Bangladesh. In the absence of any evidence to the contrary the Tribunal also accepts that the applicant does not have a right to enter and reside in any other country. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  The Tribunal also finds that Bangladesh is the applicant’s receiving country for the purpose of s.36(2)(aa).

21. The consideration of the applicant’s claims requires and assessment of the credibility of the applicant as a witness. When assessing credibility, the Tribunal is mindful that it must be sensitive to the difficulties facing refugee applicants and that they should be given the benefit of the doubt when generally credible but unable to substantiate all claims. However the Tribunal is not required to accept uncritically any and all allegations made by the applicant. In addition the Tribunal is not required to have rebutting evidence before it finds that a particular fact or assertion has not been made out. Nor is it obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.

22. The Tribunal has had regard to the above considerations, however in assessing the totality of the applicant’s evidence the Tribunal does not accept that the applicant is a credible witness or that he has difficulties in his home county for the reasons that he has claimed. For the following reasons the Tribunal considers that the decision should be affirmed.

23. Firstly, the Tribunal found that the applicant provided vague, confusing and sometimes contradictory evidence. During the hearings the Tribunal frequently had to repeat its questions and direct him to respond to the questions asked, the applicant would often merely provide evasive responses. For example the applicant would not commit to understanding his original claims or confirm for the Tribunal that he had previously provided true and correct evidence. When asked about the application for protection that was filed, the applicant claimed that he did not have communication with his agent and was not really aware of what was filed, only that he informed his agent about the murder case filed against him in his home country and after that he was not sure what was done and he did not have any communication with the agent as he was in [another state]. The applicant’s attention was drawn to the Protection visa application which was completed in August 2013, he was identified as having sworn the document at [suburb] in [state], and that an interpreter was present who completely interpreted the contents of the documents to him. Once refreshed the applicant claimed that he had fear in his mind and that he could not express 100 per cent what he said. The applicant maintained that he only had one meeting with his former agent. However the delegate records that the applicant’s former agent was present at his interview with the delegate and had made submissions on his behalf. When this was put to the applicant he conceded that his representative was there. His agent also made submissions to the delegate, which were claimed to be on the instructions of the agent before and after his interview. The Tribunal had to ask the applicant three times whether he gave correct information to the delegate. Firstly, he said that when he spoke with the delegate the applicant claimed that he was not very sound mentally so that he could not say many things appropriately. When asked again whether he told the truth to the delegate he claimed he was afraid and forgot many things. He was also asked whether he had been true and honest about the facts of his life with the Department, the applicant considered he may not have managed to express things correctly. The Tribunal put to the applicant that his credibility was an issue. He was offered the opportunity to correct, amend or update any of his previous evidence and he did not wish to alter anything. The applicant was asked whether he had sought any treatment or been diagnosis with any mental condition, he claimed that he had not. The Tribunal was not satisfied that the applicant was being completely candid, rather considered that he was trying to evade being accountable for the information that he had previously supplied in relation to his claims.

24. Secondly, the applicant has given conflicting information about his involvement in politics in Bangladesh. [In] December 2012 the applicant underwent an entry interview with the Department with the assistance of a Bengali interpreter. A record of that interview contained in the Department file.[1]  The applicant was asked with he or members of his family had been involved or associated with political groups or organisations and he responded no. The applicant was also asked whether he was involved in any activities or protests against the government and he again responded no. This information was put to the applicant for comment pursuant to the provisions of s. 424AA of the Act. The applicant elected to comment immediately and responded that he was scared that if he told the truth that the authorities in Australia would send him home. In written submissions provided on 1 August 2016, the applicant claimed his response was misunderstood, delivered or interpreted. The applicant then went on to submit that what he meant to say was that because of the hostile nature of the Awami League government, all other parties kept a very low profile. This submission does not make sense to the Tribunal. The questions asked of the applicant required a yes or no answer. If the applicant wanted to elaborate on his political activity he had the opportunity to do that when he was asked about the reasons why he left his country in his entry interview, which he did not.

    [1] Folios 93 to 106

25. Thirdly, the applicant has changed his claims as to the reason he left Bangladesh. At his initial entry interview with the Department [in] December 2012 the applicant was asked why he left his country and he is recorded as responding that it was “mainly for economic reasons, not enough income and too many members of the family, we are struggling”. This was put to the applicant pursuant to the provisions of s424AA of the Act. Again the applicant responded immediately and told the Tribunal that he said this as he was scared and he wanted to keep things simple. The Tribunal had earlier asked the applicant why he decided to come to Australia from Bangladesh and he gave evidence that it was because he had heard that Australia respected human rights. In his post hearing submission provided to the Tribunal on 1 August 2016, the applicant changed the reason for his response and claimed that he was emotionally and physically exhausted from the boat journey. It is noted that the applicant arrived in Australia [in] December 2012 and not interviewed immediately but [in] December 2012. He submitted that he could not actually remember what he had said to the Department, but by mistake on the advice of his fellow passengers he hid information that would portray him negatively for fear of being returned to Bangladesh. The Tribunal does not accept the applicant’s explanations. It is considered that if the applicant determined to come to Australia because he was concerned about his human rights he would have raised some issues consistent with his subsequent claims. Further, it is considered that if the applicant was genuinely afraid about being returned he would have issues other than economic reasons when asked why he chose Australia as his destination. The Tribunal considers that the failure of the applicant to mention his political activity, when asked directly about such matters and given the opportunity to do so,  or even raise matters consistent with his subsequent claims weigh more in favour of the applicant not being a credible witness and that he has fabricated his claims.

1. Again pursuant to the provisions of s. 424AA of the Act it was put to the applicant that he had provided information in an identity interview with an officer of the Department that his family had been involved in a property dispute with relatives and neighbours, that he had been threatened with being killed and for this reason he was forced to leave his family farm. The applicant again chose to comment immediately and confirmed that he had said this but that it was something that had happened earlier on, it was a common thing in Bangladesh and it was not the reason he had left or feared to return. The Tribunal considers it an example of how the applicant’s claims have evolved with the progression of time and it causes concern about the credibility of the applicant and that of his claims.

2. Fourthly, the evidence of the applicant as to his membership of JeI also caused the Tribunal to have concern. In his written statement the applicant claimed that he became actively involved with the student wing of JeI, the Chhatra Shibir, and that this continued when he left college and he gradually became more involved with the main party. The applicant was asked firstly whether he was a member or a supporter of the Chhatra Shibir, and he responded that he was a supporter definitely and did not have to fill out a form to be a member. The question was repeated and the applicant was again asked whether he was a member or a supporter. He responded that he was both. He was then asked about membership, how he became a member and what level member he was. The applicant again gave evasive responses and claimed that just support was enough in educational institutions for political involvement. The applicant later discussed becoming involved with the mainstream JeI party, as they worked together. Again the applicant was evasive when asked whether he was a member, he claimed that if someone supported the party then they were treated equivalent to being a member. The Tribunal had to again ask the applicant to clarify whether he was a member, he referred to differences with Australian society and maintained that strong supporters were treated like members. It was put to the applicant that there is independent information, some produced by the parties themselves that there are procedures to become members of both the JeI and Chhatra Shibir, and that procedure is documented. For example the process of full membership involves an oath taking ceremony, where members sear not to have any dealings with any organisations against the aims and objectives of the Shibir, conducted by the Central Committee member and that it was religious in nature with participants undertaking ritual purification as if they were going to pray.[2] That to join even as an associate member of the JeI requires the completion of a membership form.[3] To become a full member or Rukon of the JeI, was extremely difficult and that it required passing examination on Islamic texts and observing a strict code of behaviour, having to fill in a daily report card, recording how many times they had prayed in the mosque and how much of the Quran they had read.[4] The applicant then confirmed that this was correct. It was put to the applicant that Tribunal did not accept that the process he had described of being just being a strong supporter and not having to fill out forms was consistent with the country information. The applicant responded that he was not really clear about the process of joining the mainstream party from the Chhatra Shibir; however he then claimed that he had in fact undertaken practises such as prayers, purification activities and reading of the Quran. The Tribunal accepts that the applicant may have undertaken prayers and the reading of the Quran as part of his religious observance; however for the applicant to equate this with party activities was misleading. The Tribunal did not consider the evidence of the applicant as to his membership of the Chhatra Shibir or JeI to be credible.

   [2] Frances Harrison, "Political Islam and the Elections in Bangladesh", New Millennium, 01 June 2013, CIS27813 at page 74

   [3] [4] Frances Harrison, "Political Islam and the Elections in Bangladesh", New Millennium, 01 June 2013, CIS27813 at page 44

3. Fifthly, although the applicant claimed to be strong in support of the Chhatra Shibir and actively involved with the JeI he could only provide very limited information as to what attracted him to the party and was unable to provide examples of any particularly policies aside from the introduction of Sharia law. The applicant was asked about policies in relation to education, health, foreign policy or even small matters in his locality and was unable to identify anything. As a student he claimed that he had the responsibility of talking to people increasing the number of supporters in the party, he would do this weekly. Yet when asked what he would tell people about his party and how he would explain the beliefs and ideology he claimed to have learnt this from books and that he let people know what Islam says and talk about the religion. Again the applicant equated membership of the political party with believing in Islam. According to the Chhatra Shibir, its objectives are to struggle for changing the existing system of education on the basis of Islamic values, and to prepare them to take part in the struggle for establishing Islamic way of life. [5] The Tribunal has also considered the post hearing submission of the applicant received on 2 August 2016, regarding the applicant’s involvement in student politics. The applicant claimed that the student wings of the ruling parties run campuses and residences through crime and violence and that for protection he needed to join a student political wing. The applicant claimed that he never wanted to join in any politics or do anything controversial but as a devout Muslim he chose to join JeI. The Tribunal does not accept the applicant’s contention that JeI was the only party for Muslims and that he was forced to join for protection, it is noted that 90 percent of the population of Bangladesh is Muslim.[6] The applicant’s post hearing submissions are not consistent with his original claims that he was are ardent supporter and that he was actively involved. Overall the Tribunal did consider that the applicant provided credible evidence as to his involvement in the party and his reasons for joining.

   [5]Islamic Chhatra Shibir, South East Asian Terrorism Portal accessed at DFAT Country Information Report – Bangladesh 5 July 2016 at 2.6

4. Having regard to his initial written claims of active involvement because he felt he could make a difference through the party, the applicant was asked what was discussed at meetings he attended and he claimed it was to prepare for elections. He was asked about rallies he joined in and their purpose, and the Tribunal found his responses vague and uninformative. Additionally his evidence was often evasive, for example the Tribunal had to ask him several times where he talked to people about his party as he frequently responded in his area. The Tribunal had to persist in order to get the applicant to identify a precise locality. The Tribunal was not satisfied that the applicant was recounting his actual experiences. The applicant has consistently equated the party with the practice of Islam. He attempted to demonstrate his knowledge of the party by recounting the five fundamental rules of Islam. Yet in the statutory declaration accompanying his application he claimed that he continued his involvement with the party because he could not contain his beliefs or opinions. The applicant when asked by the Tribunal was unaware of the fundamental beliefs of a Jamaat. His response was that Islam means peace and to create a peaceful situation in the party and to establish Islamic rules. According to Jamaat e-Islami Bangladesh, the fundamental beliefs of a Jamaat  are that Allah is only Rob, lawgiver and commander of mankind, only Quran and sunnah are complete code of life for human being, only Muhammad (SAW) is the ideal leader to be followed in all spheres of life, the movement of establishing Islam is the only objective of  life of  a mumin and satisfaction of Allah and salvation in eternal life (Akhirat) are the demand of life of a mumin (believer). [7] The unsatisfactory evidence of the applicant caused the Tribunal to doubt the credibility of the applicant’s claims of support for the JeI.

   [7] >

   Sixthly, further undermining the claims of the applicant of being actively involved with JeI is his evidence that the meetings he attended were that of another party, the Bangladesh Nationalist Party (BNP). His campaigning activity was also for the BNP party member. The applicant claimed that this was due to the fact that the BNP was in coalition with JeI and the applicant was not aware of a local JeI candidate. Although the applicant claimed that the JeI were not active in his locality, he had earlier given evidence that his local chairman was a JeI member. The Tribunal asked the applicant if he could name any other party in the coalition with the BNP and JeI, and his initial answer was non-responsive as he described the major parties in Bangladesh. The Tribunal asked him again and received an evasive response that among other things that he could not recall. The Tribunal persisted and the applicant claimed that there were many parties, about 10 to 12. The BNP formed a four party coalition with Jel.[8] If the applicant was actively campaigning, as he claimed as part of this coalition it is expected that he would be aware of the actual parties he was campaigning for. Furthermore, although the BNP formed a coalition with the Jel and other parties in 2001, they are separate parties with distinct policies and ideologies. The applicant spoke to that earlier when he claimed that JeI was that only party that wanted to establish an Islamic state. The BNP is a secular party. The Tribunal does not accept that a coalition of these parties formed for political expedience in 2001 was equivalent to a merger as was the case presented by the applicant. The applicant claimed that the attendance at BNP meeting and BNP directed activities was the same as JeI prior to his departure from Bangladesh. The unsatisfactory nature of the applicant’s evidence weighs in favour of the conclusion that he has manufactured his evidence about his political involvement with JeI.

   [8] BNP formed a four party alliance with the Jamaat e-Islami, Islami Oikyp Jote and Bangladesh Jatiya Party. Frances Harrison, "Political Islam and the Elections in Bangladesh", New Millennium, 01 June 2013, CIS27813 at page 41

5. Seventhly, as it was the applicant’s evidence that he has spent much of his time campaigning in the 2008 election the applicant was asked whether he voted in the election. The applicant claimed that he did and when asked to clarify who he voted for he claimed it was JeI. It was put to the applicant that this was inconsistent with his evidence that there was no JeI candidate in his locality. The applicant then corrected his evidence and claimed that JeI was the same as BNP due to their coalition. As discussed above the Tribunal does not accept this classification. Pursuant to the provisions of s.424AA the Tribunal put to the applicant that during his interview with the delegate he has stated that he had not voted in the 2008 elections as he was in Dhaka at the time with a relative that was sick, his [relative] and his wife. The applicant chose to respond immediately and claimed that he was under pressure at the time of his interview with the delegate and not well, because the delegate had asked a question he had to say something. The Tribunal does not accept this explanation. The applicant gave detailed evidence about his activity to the delegate at the time of the 2008 election, the applicant had claimed that he had travelled to Dhaka to wait for them to recover. The Tribunal considers that the inconsistencies weigh further in favour of the conclusion that the applicant has manufactured his claims about his political activity.  

6. Eigthly, the applicant was able to demonstrated little insight with respect to political matters reported to be affecting  the JeI prior to his departure from Bangladesh in his evidence to the Tribunal. When asked to comment on these matters the applicant initially could not recall anything. He then commented that some of the leaders also had false cases brought against them. It was put to the applicant that country information records that some leaders of the JeI were indicted before an International Crimes Tribunal for atrocities allegedly committed during the war of independence. The applicant agreed that this was the case. The applicant was asked whether as a JeI supporter he had any view on this, he claimed that he had no idea about the cases. The Tribunal had concerns that the applicant was unable to comment further on this issue when he had submitted material regarding the International Crimes Tribunal for the Tribunal to consider in relation to his applicant at the Tribunal hearing on 31 May 2016. The Tribunal also raised with the applicant that proceedings were commenced in the High Court challenging the legality of the registration of JeI as a political party in 2009.[9] Other than confirming that this also occurred the applicant did not comment further on the information. This lack of insight or ability to address pertinent issues for the JeI by the applicant at the time of the hearing, when the applicant claims to have been a strong supporter, further undermine the credibility of the applicant and that of his claims. In contrast the post hearing submission of August 2016 provided by the applicant discussed in detail these matters, how they affected the party and his political activity. The content detail and tone of the information contained in this submission was not consistent with the applicant’s earlier evidence to the Department or the Tribunal. This inconsistency and shift in the information provided by the applicant demonstrated to the Tribunal that the applicant was prepared to tailor and manufacture information to achieve a positive migration outcome.  

   [9] The High Court banned the JeI as a political party in August 2013, DFAT Country Information Report – Bangladesh 5 July 2016 at 3.51

7. Ninthly, the evidence of the applicant about the injury he sustained from the Awami League in 2008 causes concern for the Tribunal. In his statutory declaration of [August] 2014, the applicant claims that two months after the 2008 election while heading to his former college in [Suburb 1], he was attacked by members of the student wing of the Awami League. The delegate records that the applicant claimed that at this time he was attacked in an unidentified village while participating in a protest arranged by his party. The delegate also records that the applicant claimed that this was not a protest against the government but was related to student politics. To the Tribunal the applicant claimed that at this time he was involved in a protest because the election was not fair, that the protest had been called by the BNP [candidate], and he was protesting with roughly [number] other people. The applicant claimed that the Awami League supporters attacked the protest and that he was stabbed with a knife in the stomach. The evidence of the applicant has constantly shifted in relation to this incident, he has also embellished his description, and this embellishment and changing nature of the evidence undermine the credibility of the applicant and that of his claims. Further the applicant has set out in his statutory declaration [in] August 2014 that although he reported this incident to the police they took no action. The Tribunal asked the applicant if he had sought assistance from the police at this time and he replied that even if he had gone to the police they would not help him. It was put to the applicant that this was inconsistent with his written claim where he stated he had sought assistance. The applicant then claimed that the police were only involved during another incident in 2012, when he was going door to door. When the Tribunal pressed the inconsistency the applicant changed his evidence and said that he did attend the police station in February 2009 and he had tried to file a complaint with other political colleges. Due to the changing nature of the applicant’s evidence the Tribunal does not accept as credible his claim that he was attacked and injured by the Awami League or that he was involved in any political activity at this time.

8. Tenthly, the applicant’s description of a clash he became involved in during 2012 has also changed with each telling by the applicant. In his statutory declaration [in] August 2014 the applicant set out that early in 2012 he went to visit a friend who was politically active, as he arrived he saw members of the Awami League and BNP clashing, that there was a large crowd and he tried to break up the fight. The delegate records that the applicant again claimed that this incident occurred in early 2012, however now he was participating in a demonstration, the purpose of which he could not recall. In contrast, in his evidence to the Tribunal the applicant claimed that this incident now took place [in] August 2012, it was not a protest or a demonstration but his party was just going door to door trying to get people involved for the upcoming election. The applicant provided a fourth version in his post hearing submission of 1 August 2016 and claimed that he was protesting with student wing leaders of the JeI and they were raising slogans about the government actions of putting JeI leaders in jail. The timing of the event and the reason for the applicant being in [Village 1] has altered each time the applicant has recounted the incident. This adds to the conclusion of the Tribunal that the applicant is not a credible witness.

9. Additionally, the applicant has embellished his evidence of the altercation with the Awami League. In his statutory declaration of August 2014 it was described as a clash. As was put to the applicant for comment pursuant to s. 424AA of the Act, in interview with the delegate the applicant claimed that there was foul language, people would get fired up, he was standing at the front with his supporters, and people were just hitting each other with stick and whatever they had in their hands. To the Tribunal the applicant claimed his group had been in the village for about an hour, when at 9 am the activists and supporters of the Awami League attacked them. He claimed that the Awami League were prepared and they had sticks, spears and machetes. He was at the back of his group and did not participate in the fight, when he saw that it was going unfavourably for his party he decided to flee. The nature of the conflict, the implements involved and the position of the applicant at the time in his group has also shifted. From a casual observer who happened upon the demonstration, the applicant went to the front of the group in evidence before the delegate, to at the rear where he could flee in his evidence before the Tribunal. When this was put to the applicant at the hearing he attempted to argue that what he meant was that he was at the back of the front row of his group. The Tribunal finds this explanation illogical. The applicant offered up a further explanation in his written submission and claimed that he was in the front of the rally but in the third or fourth row. In this submission he set out that one man died somehow, that no one on his side did this and he might have gotten hurt in some scuffling. However in his evidence to the Tribunal on 30 May 2016 the applicant claimed that he had witnessed the attack on the victim that he has seen him lying on the ground with blood coming out of his head. Overall the Tribunal was not satisfied that the applicant was describing an event that he actually experienced and the numerous material inconsistencies about the timing, the reason for the applicant being there, and events that transpired, weigh in favour of a finding that the applicant is not a credible witness and he has manufactured his claim about being involved in a demonstration, clash or attack in which an Awami League supporter was killed.

1. Eleven, the applicant has consistently varied his evidence regarding events following this incident in 2012. The applicant told the Tribunal that he returned home for two weeks and when police came to look for him at his home a neighbor warned him and he left the house. He claimed that the police used abusive language to his parents but there was no violence. This is inconsistent with the information contained in the applicant’s statutory declaration [in] August 2012, in which he stated that he did not remain at home because he feared that members of the Awami League would take revenge and that it was a couple of days later that the police came looking for him, at which time they physically assaulted his [sibling]. When this inconsistency was put to the applicant at the Tribunal hearing he changed his evidence, he claimed that actually what he meant was that although he returned to his home he did not stay all the time at his house but with neighbours and although there was no violence at his house when speaking with his parents, he now remembered that outside his house [one sibling] was assaulted by the police. In his post hearing submission of 1 August 2016 the applicant claimed that what he meant was that he did not leave his home or country, that he was still visiting his home secretly. The Tribunal does not accept this explanation and considers that the applicant’s inconsistent evidence regarding this event weighs in favour of a finding that the applicant was not credible and he has fabricated his claim regarding involvement in an incident in 2012 which resulted in the death of an Awami League supporter and charges by the police.

2. Twleve, the applicant has also added to his claims of what happened once he travelled to Dhaka and departed Bangladesh. The applicant told the Tribunal that while in hiding at the house of his [relative] in Dhaka, after he had only been there for a week the army cadres came to look for him. Due to this enquiry his [relative] asked him to leave. Additionally prior to his departure from Bangladesh the applicant told the Tribunal that the army cadres searched his family home. It was put to the applicant pursuant to the provisions of s. 424AA of the Act that there was no record of him previously providing information that the army was searching for him prior to his departure from Bangladesh, or that they had come looking for him in Dhaka. The applicant declined to comment and requested the opportunity to respond in writing. The Tribunal also put to the applicant that he in December 2014 information had previously been provided by his agent to the Department that he had instructed that the police were looking for him at that time and his [sibling] had been assaulted. Again the applicant declined to comment and asked to respond in writing. The applicant did not address these matters in his post hearing submission. Overall, the constantly shifting claims of the applicant about events follow the death of the Awami League supporter, and the inability of the applicant to explain inconsistencies further weighs in favour of the conclusion that the applicant is not a credible witness and has manufactured his claims.

3. Thirteen, the Tribunal has considered the supporting documents submitted by the applicant in the form of the FIR. The contents are consistent with the applicant’s claim that he is named in the document together with [number] other individuals, following an incident at [Village 1] in which a [man] was killed. However it claims that the attack took place at the victim’s house, that the applicant’s group was armed and had the pre-planned intention of the murder of the victim. It does not refer in any way to a political motive or political activity between different parties. It was put to the applicant for comment that if there were [number] Awami League members present, as the applicant had claimed, that it was unusual there were not a large number of witnesses recorded in the complaint.  The applicant claimed that this was just the way that the Awami League had falsely reported it. The Tribunal also had concerns about the authenticity of the document. The Tribunal raised this as an issue with the applicant and discussed with him country information that indicates that there is a significant prevalence of fraudulent documents in Bangladesh and that there is no difficulty in anyone obtaining these documents.[10] In his post hearing submission of 1 August 2016, the applicant maintained that the FIR was genuine. The Tribunal also raised with the applicant the absence of any other corroborative news reports or documents given that there are [number] other persons named in the FIR. It also appeared to the Tribunal that the applicant has tailored his evidence to fit some of the information contained within the report, and this accounts for the shifting evidence of the applicant about the date of the incident in 2012, from early in the year to [a date in] August 2012 to match the report, as well as the introduction of numerous weapons used by the assailants as described by the applicant at the Tribunal hearing. The applicant was unable to provide a meaningful response to these concerns at the hearing. The applicant once more tailored his evidence in his post hearing submission and was provided some information about the fate of some of his colleagues. Additionally the applicant has provided a letter that is purportedly from the Bangladesh Chhatra Shibir. The Tribunal is unable to identify the author of the document and the content is poorly written in English. In summary the letter appears to recommend that the applicant not return to the country. When considering the weight to give this document the Tribunal is mindful of the fact that the applicant had previously told the Tribunal that he was no longer involved with politics in Bangladesh as it had ruined his life. However when questioned by the Tribunal about the lack of corroborative documents he was able to produce such material within days to of the hearing. Overall given these issues and the numerous concerns about the applicant’s credibility, the Tribunal is not satisfied that either document is authentic and gives them no weight.

   [10] DFAT Country Information Report – Bangladesh at 5.24, 5.27 and 5.28

4. The Tribunal has considered the claims of the applicant individually and cumulatively, due to the above numerous inconsistencies, shifting claims, the lack of credible and non-persuasive evidence by the applicant, the Tribunal is not satisfied that he is a witness of truth. The Tribunal has fundamental concerns about most aspects of the applicant’s claims. The Tribunal concludes that he fabricated his material claims in order to create a profile for himself for the purposes of obtaining a Protection visa.

5. The Tribunal does not accept that the applicant was a supporter or member or in any way associated with of the Chhatra Shibir or the Jamaat e-Islami. It follows that the Tribunal does not accept the applicant’s claims that flow from that. It is not accepted that he attended party meetings, recruited members for the parties or was involved in protests or demonstrations. It is not accepted that he was injured by the Awami League a couple of months after the 2008 elections or that he was involved in an incident in 2012 in which a member of the Awami League was killed.

6. The Tribunal does not accept that the applicant has a false case against him or any case against him. The Tribunal does not accept that the police or the army are looking for the applicant in relation to this incident.

7. The Tribunal does not accept that the applicant’s home has been searched by the army, that police have spoken harshly to his family, or that any members of his family have been assaulted or otherwise harmed by the authorities in Bangladesh.

8. The Tribunal does not accept  that the applicant was politically active and that he was or is of adverse interest to the Awami League, its members or supporters

9. The Tribunal has considered the claim by the applicant that his family was involved in a property dispute with relatives and neighbours, that he had been threatened with being killed. The applicant gave evidence to the Tribunal that this was not an issue and due to the changing nature of the claims of the applicant and the multiple concerns of the Tribunal in relation to the applicant’s credibility the Tribunal does not accept this claim. It therefore does not accept that that he was at risk of harm or of being killed by friends or neighbours. 

10. The Tribunal does not accept that the applicant is or was of adverse interest to the Bangladeshi authorities, including the police or the army.

11. The Tribunal accepts that the applicant does not wish to return to Bangladesh and that it is financially better for his family for him to remain in Australia.

12. The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm due to for the reasons he has claimed if he returns to Bangladesh now or in the reasonably foreseeable future.

13. The Tribunal finds that there is not a real chance that the applicant will suffer persecution on the ground of his actual or imputed political opinion or any other Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future.

    Complementary Protection

14. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa).

15. The Tribunal finds the applicant is not a witness of truth and it is not satisfied the applicant’s claims are credible. The Tribunal does not accept that the applicant was a supporter or member of the JeI or Chhatra Shibir, that he attended party meetings, recruited members for his party or that he was involved in any rallies, protests or demonstrations. The Tribunal does not accept the applicant was involved in a demonstration, rally or event in which a member of the rival Awami League was killed or that there is a police investigation and proceedings in relation to this incident. The Tribunal does not accept that the police, the army, the Awami League or the government of Bangladesh is looking for the applicant or that he  has a political profile that would put him at risk if he were to return to Bangladesh. 

16. The Tribunal does not accept the applicant was of adverse interest to the police, the army, Awami League or its members or supporters at the time he left Bangladesh. The Tribunal does not accept that the applicant was involved in a property dispute or that friends and relatives of his family wished to harm him. The Tribunal does not accept the applicant was or is of adverse interest to anyone in Bangladesh.

17. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied there is a real risk the applicant will suffer significant harm for any of the reasons he has claimed, if he were returned to Bangladesh, now or in the reasonably foreseeable future.

    Conclusion

18. 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).

19. 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).

20. 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

21. The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.]

    Penelope Hunter
    Member