1421048 (Refugee)

1421048 (Refugee) [2016] AATA 3881 (17 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1421048
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:David McCulloch
DATE:17 May 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 17 May 2016 at 10:25am

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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant claims to have been born in Myanmar, and stateless, although he arrived in Australia on a Bangladeshi passport, which he claims does not reflect his true citizenship. The key issue in this matter is whether the applicant is a citizen of Bangladesh or born in Myanmar and stateless, as a Rohinga Muslim.
The applicant applied for the visa [in] December 2013 and the delegate refused to grant the visa [in] November 2014.
A Tribunal hearing was scheduled for 11 April 2016. Prior to the scheduled hearing, a request was made for an adjournment based on medical conditions. A Medical Certificate and a psychologist’s report were provided. The Tribunal rescheduled the hearing for 2 May 2016, which was after the date specified in the Medical Certificate that the applicant was unfit. The applicant attended the hearing on that day, but requested a further adjournment of four to five months to finish his psychological counselling. After discussion with the applicant, the Tribunal declined to grant the adjournment. Further details relating to the adjournment requests, the Tribunal’s decision not to grant the second adjournment, the applicant’s psychological conditions, and their impact on the applicant’s capacity to give evidence and his credibility are detailed further below.
The Tribunal hearing on 2 May 2016 was conducted with the assistance of an interpreter in the Bangli and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
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’).
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. The Tribunal has before it DFAT Country Report – Bangladesh, 20 October 2014.
The issue in this case is the credibility of the applicant and whether, on his accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and claims
The applicant entered Australia [in] May 2010 on a Bangladeshi passport in the name of [Name B] born on [date]. He arrived here on a [Student] visa in that name which was valid until [date] June 2011. That visa was cancelled [in] April 2010. The applicant sought a review of the decision to cancel by the Migration Review Tribunal. [In] June 2011 the Tribunal found that it had no jurisdiction in the matter. The applicant, from that point, remained in Australia as an unlawful non-citizen until the current application for a Protection visa was made [in] December 2013.
The applicant claims that his real name is [Mr A], in whose name the Protection visa application was made, born on [date A] in Myanmar. The applicant’s claims for protection are set out in a statement provided as part of the application to the Department which provided as follows (mistakes not corrected):
I am [Mr A] aka [Name B] and I am a Rohingaya Muslim. My father name [sic] is [name], and my mother name is [name] and I had [one] sister named as [name]. By born I am a Rohingaya Muslim and I was born in the, [name] - township, in Arakan Province, country Myanmar (formerly Burma). Our family fled from Myanmar in the year of 1992 and took shelter in south-east part of Bangladesh named Ukiyya, due to persecution by the Myanmar Military and majority Buddhist Community.
I was [age] when my parents fled from Myanmar and took shelter in Ukiyya Bangladesh. We lived nearly 03 years in the Hill of the Ukiyya before my parents intended to migrate to Pakistan. I, my mother and my [sister] always lived in a tiny mud-house in Ukiyya as my father had been working as a [occupation] in Cox's bazar with a Bangladeshi businessman who had [boats]. My father worked in the [workplace] as a [occupation] for the 5 years that time. He also worked 02 years in Cox's bazar as [occupation] before my mother and sister including me moved to Ukiyya, Bangladesh in 1992.
My father had saved money in Bangladesh to go to Pakistan via India while he had been working in Cox's bazar in [workplace]. A lot of Rohingaya Muslims from Myanmar whose [sic] fled from Myanmar and took shelter in Pakistan were living in peace in there and the Pakistani government provided them shelter. My parents decided to flee from Bangladesh and attempted to reach Pakistan via India in the year of 1997. There are some Rohingaya Muslims who helped our community peoples to cross the borders of Bangladesh and India until reach after Pakistan.
In May 2007 my father hired a Microbus to travel to the Chittagong, Bangladesh where the helpers of our family were waiting to receiving us and accompany with us up until we reach in to [sic] [City] Pakistan. Our Microbus had started from Ukiyya in a day of May 2007 but I don't know exact date. At around 11:00pm. our microbus had a head to head collusion with a truck before we reach to the [location] in Chittagong which had turned my life in to a difficult situation.
I did not know anything after the crash. In next day I found myself in to a Hospital [sic]. I was looking for my parents and my sister in the hospital but the doctors told me they had died in the crush. One of the families that help to recued us from the crash is fostered me [sic] and provided shelter and education until I came to Australia. The head of the family who look after me had found some money in my father chest in a cloth belt.
My foster parents were very much helpful to my education and accommodation. They helped me to go to local school providing food, money and accommodation. When I have completed years [number] they helped me to come to Australia by making Bangladeshi travel documents for me though I am not a Bangladeshi. When I came to Australia, I have met with our community peoples in Australia who's also lost their parents. In Australia I feel better than Bangladesh, as no boy hate me calling me as Rohingaya.
I did not concentrate in my study when I came to Australia as a student. I did not even go to my college after arrival in [Australia]. I sent back my passport to my foster parent [sic] and request them to forgive me as I would like to seek asylum in Australia as other Rohigaya Muslim.
I don't have any citizenship of any country in the world and I don't not resident status like others of the Rohingaya Muslim. If I go back to Bangladesh from Australia, the Bangladeshi Police will arrest me in the airport and detain me forever or pushback me back [sic] into Myanmar border near [name] where I would be killed by the Myanmar Boarder Securities Force.
Thereof [sic], I am seeking refugee status and seeking protection visa from Australia Government as a Rohingaya Refugee according to Refugee Convention of the 1951 and Additional Protocol of 1967.
The applicant has provided a photocopy of what is said to be an original, together with a translation, of a Household People’s List issued by Myanmar. It includes the name [Mr A] born on [date A]. It lists a Head of Household, and wife and a [child]. The Tribunal notes that the names listed for the Head of Household and the wife are the names provided in relevant documents as the applicant’s foster parents.
In the application form for the Protection visa, the applicant lists having lived in Bangladesh in [Suburb A] Chittagong from May 1997 until May 2010. He lists having attended [Suburb A] High School from January 1998 until December 2007. He lists having attended [Suburb 1] College from January 2008 until December 2009.
The Departmental file relating to the Protection visa application contains documents concerning the applicant’s application for the Student visa in the name [Name B]. Those forms indicate the applicant living in [Suburb 2], Chittagong. It lists him having completed his HSC at [District 1] College where he commenced in September 2006 until September 2008. It indicates that he obtained his SCC at [name] High School in Chittagong where he commenced in January 2000 until June 2006.
The application form asks for the closest relative in Bangladesh. The applicant lists [name], his [uncle] who lives in [suburb], Noakhali.
Student Visa Financial Guarantee and Acknowledgement forms in respect of the Student visa application have been completed by [Mr H] (‘foster father’) and [Mrs M] (‘foster mother’) who indicate that the applicant is their son in the respective forms. In another form, the foster father lists his occupation as ‘service’ and ‘landlord’. There are bank statements in the name of the foster father. There are a number of Temporary Rent Holder Receipts showing the foster father as proprietor. There is a statement saying that the foster father is a [officer], [name] Bank, Chittagong and providing pay details.
There is a copy of a Board of Intermediate and Secondary Education Transcript of the Secondary School Certificate Examination 2006 in the name of [name].[Name B] It shows the applicant receiving an [achievement] in 7/8 subjects and an [achievement] in the 8^th subject. It names the applicant’s foster parents. There is a copy of a Board of Intermediate and Secondary Education Transcript of the Higher Secondary Certificate Examination 2008 in the name of [name].[Name B] It shows the applicant receiving [achievements]. It indicates the institution as [District 1] College and names the applicant’s foster parents.
A document is provided by [name] Bank Ltd indicating that the applicant’s foster father had been granted a credit facility of 17 laks for the education expenses of his son.
There is a statement from [name] School and College indicating that the applicant’s foster mother had worked as a [occupation] at the school between January 2009 and December 2009.
Relevant documents show the foster father living in [Suburb 2].
Hearing, credibility, findings and assessment
In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal has a number of credibility concerns with the applicant’s claims.
Firstly, the one document that the applicant has provided, which seeks to indicate his status as being born in Myanmar is clearly not genuine. This is because the Household People’s List provided indicates the applicant’s parents as his foster parents, not his natural parents.
In the Tribunal hearing, the applicant indicated that this was because he told his relative who was asked to obtain the document to put his foster parents as his parents. The Tribunal indicated to the applicant that this would suggest that it was not a document genuinely issued by the Myanmar government. The document clearly was not issued at the time of the applicant and his family living in Myanmar.
The applicant indicated that he got the document in this way because it was not otherwise possible to obtain documents to prove that he was from Myanmar. Whilst the Tribunal accepts that this could be the case, the fact that the applicant has been willing to provide to the Department and the Tribunal with what is clearly a fraudulent document is undermining of his claims to be a citizen of Myanmar and a Rohingaya Muslim.
Secondly, the delay by the applicant of three and half years before applying for a Protection visa from arrival in Australia, including two and a half years in which the applicant was an unlawful noncitizen, is not consistent with the applicant holding the claimed fear of returning to Bangladesh (or Myanmar). In the Tribunal hearing, the applicant indicated that he did not know about the option of a Protection visa. The Tribunal finds it difficult to accept that the applicant would not have either heard about the option or made investigations, noting that he has a good level of education and English skills enabling him to study in Australia.
The Tribunal noted that the applicant would have been informed of the ability to claim protection when his Student visa was cancelled. The applicant in response indicated that this was handled by an agent and he was not informed of this option by his agent.
The delay in seeking protection is a very considerable one. The Tribunal considers that the applicant would have had a very strong incentive to apply for a Protection visa very soon after becoming an unlawful noncitizen, if his claims were true. The Tribunal takes the significant delay in making the application for protection as adverse to the truth of the applicant’s claim to fear harm based on being a Rohingaya Muslim from Myanmar.
Thirdly, the fact of the applicant sending his passport back to his foster parents in Bangladesh is not an act consistent with the applicant providing full and truthful evidence of his circumstances.
The applicant had indicated that he had sent his passport back to his foster parents in Bangladesh. The applicant, in the hearing, said that he sent his passport back because he was not a Bangladeshi citizen. The Tribunal explored with the applicant why he would take such a step. If the passport was forged, then the provision of it to the Department or the Tribunal, who could verify this fact, might support the applicant’s claims. The applicant indicated that the passport was not forged, but issued by the Bangladeshi government, but implied that it was based on misinformation.
The Tribunal can see no sensible reason for the applicant sending his passport back to his foster parents in Bangladesh, or otherwise disposing of it, unless there is a lack of genuineness in the applicant’s claims or circumstances. The Tribunal can see no logic to the applicant sending the passport back to his parents because he was not a Bangladeshi citizen. The Tribunal takes the inability of the applicant to provide his passport, and his explanation that he sent it back to his foster parents for the reason claimed, as undermining of his credibility.
Fourthly, the fact of the applicant declining an offer by the Department of an ‘effective protection check’, to be undertaken by DFAT of authorities in Bangladesh, which might have supported his claims, is undermining of the applicant’s claims.
During the interview with the delegate of the Minister, the applicant was asked if he would agree to an effective protection check which involved Australian officials in Bangladesh making discreet enquiries about the applicant and his status. The applicant declined this offer. In the hearing, the Tribunal asked the applicant why he would not agree to such a step given that, if the applicant were not a Bangladeshi citizen, this would be identified, and support the applicant’s claims. In response, the applicant indicated that the Bangladeshi authorities may well provide information that the applicant is a Bangladeshi citizen, but the fact that he is not could become apparent when he returns home, thus putting him at a risk of harm.
The Tribunal does not consider that such an outcome is plausible. If, as the applicant claims, his passport is genuine, but based on false information, and that is not apparent to authorities as part of any effective protection check, the Tribunal sees no basis on which it would become apparent when the applicant entered the country.
The Tribunal does accept that the applicant could have legitimate concerns relating his details being canvassed with Bangladeshi authorities and that this could create a risk for him on return to Bangladesh, whatever the truth of his situation. Nevertheless, if the applicant is not a Bangladeshi citizen, then the Tribunal considers he would have strong incentive to agree to the effective protection check to substantiate this, which would likely overcome any other concerns. This is an issue that supports more substantive credibility concerns.
Fifthly, a person who indicated that they are known to the applicant contacted the Department indicating that the claims by the applicant that he is from Mayanmar are false, and documents he has provided supporting his claims are fake. The Tribunal put the information relating to this issue to the applicant in the hearing pursuant to the procedural requirements of s.424AA of the Act. The Tribunal provided to the applicant a Certificate pursuant to s.440(1) of the Act limiting the ability of the applicant to publish or disclose the information provided.

The information was information provided to the Department, as recorded, [in] September 2014. The person who contacted the Department, anomomously, indicated that the applicant came to Australia in 2010 as a student. That visa was cancelled. The applicant sought a review by the Migration Review Tribunal that they did not accept. He became illegal. He was working cash in hand. The person indicated that he met the applicant at the [workplace] in [suburb], where he is a [occupation]. At the time of contact, the applicant was working at a [business] in [a different suburb] where he was [occupation]. The applicant did not have work rights in Australia. It was indicated that because the applicant came from Chittagong, which is close to Myanmar, he is fluent in the Myanmar language. This person indicated that the applicant’s father worked for a Bangladesh bank. It was indicated that the applicant brought a fake birth certificate from Myanmar to prove that he is a refugee from there.
In response, the applicant indicated that he never told anyone about his situation. The Tribunal pointed out to the applicant that he clearly did provide information about himself given the level of detail that this person has provided about the applicant, consistent with his claims. The applicant did not otherwise comment on the information.
When the Tribunal asked the applicant (prior to giving details of the information) whether he had worked at the [workplace], the applicant said that he may have. When the Tribunal asked the applicant whether he had worked at the [business], specifically named, in [a different suburb], he could not remember working at that specific [business], but said that he did work in [that suburb]. When asked if the applicant worked as a [occupation], he said that the nearest he has worked as a [occupation] was using a [equipment].
It is clear from the level of detail provided by this person to the Department, that he knows the applicant, and that the applicant has outlined to this person the broad nature of his claims for protection. In terms of the assertion that the claim that the applicant is from Myanmar is false, the Tribunal is not in a position to question the person who has provided this information to the Department as to the applicant telling him that his claims are false. Because of this, the Tribunal limits the adverse weight given to this information. Nevertheless, the fact of this information does serve to reinforce other more significant credibility concerns identified in this decision that the applicant is not being truthful.
Sixthly, the applicant has not had any significant involvement with the Rohingaya community in Australia. In the Tribunal hearing, the applicant said that he had a little but not much involvement with the Rohingaya community in Australia. No supporting information has been provided from Rohingayas in Australia or Rohingaya groups attesting to the applicant being part of the community. In the Tribunal hearing, the applicant said Rohingayas live in a different area which is why he does not have much to do with them.
The Tribunal considers that if the applicant were a Rohingaya Muslim and had travelled to a strange country then it might be logical for him to seek to connect with the community in Australia. The fact that he has not done so is not determinative that applicant is not a Rohingaya Muslim, noting in particular that the applicant was young when he claims to have been adopted by foster parents, and may have had little involvement with this community. It is one limited factor, however, that the Tribunal considers buttresses other more significant credibility concerns.
Seventhly, the applicant has not given consistent information concerning the schools that he attended in Bangladesh. The Tribunal notes that there are differences in the schools claimed to have been attended by the applicant, as between his Protection visa application and Student visa application. The applicant had previously indicated that the Student visa application was based on information put together by an agent. The Tribunal accepts this is plausible, and that the educational details for this purpose might have been manufactured to bolster the chance of a successful outcome. This Tribunal does not draw adverse inference from the difference in the schools claimed to have been attended by the applicant from these two sources.
However, the applicant did not provide consistent information in the hearing as to the schools that he attended, in comparison with information contained in the Protection visa application form. In the Tribunal hearing, the applicant indicated that he firstly attended a school in [Suburb 3], and then in [Suburb A] from years 4-12. He was asked if he attended any other schools or colleges, and he said that he did not. It was pointed out to the applicant that after attending the school in [Suburb A] his Protection visa application indicated he attended [Suburb 1] College. The applicant indicated in response that this was connected with the school in [Suburb 3]. The Tribunal notes that this explanation does not make sense because [Suburb 3] was claimed to be attended by the applicant prior to [Suburb A], not before.
Eighthly, the applicant either did not know, or failed to be able to recall, key details relating to his foster father and where he had lived.
Early in the hearing, the Tribunal asked the applicant what his foster father did for work, and the applicant said he did not know. When pressed, the applicant said that he was in business but he had no further details. The Tribunal pointed out to the applicant that it had difficulty accepting, given he had been with his foster father since he was quite young, that he would not know what he did for work. Later in the hearing, when the Tribunal explored with the applicant difficulties based on his psychological issues, the applicant indicated that he could not in fact remember what his father did due to his psychological issues. There was a shift therefore in the applicant initially saying that he did not know what his father did to him saying that he did not remember.
In the hearing, when the Tribunal asked the applicant what district he lived in with his foster parents, he indicated Chittagong. When asked what part of Chittagong, he said that he did not know. When asked if his foster father had more than one home (as indicated by the applicant in the interview with the delegate of the Minister), the applicant indicated that he did not know. Later in the hearing, he indicated that he did not know these issues because of his psychological issues.
Issues relating to psychological conditions, adjournment requests and impact on capacity to give evidence and credibility
Prior to the first scheduled hearing, the applicant provided a Medical Certificate indicating that the he was unfit for school for three weeks from [date] April 2016 to [date] April 2016. The applicant sent an email to the Tribunal saying that he was happy to attend the hearing but asked for consideration to be given additional time so he can ‘pull himself together’.
Also provided was a report from [name], Registered Psychologist, dated [in] March 2016. It recites the applicant’s background in Bangladesh and his study difficulties in Australia. During his studies the applicant was stressed and depressed and could not think straight. It indicates that the applicant did not tell his foster parents about his study difficulties and that his father had lost his good job in a bank and was unable to pay him. He worked in casual jobs to pay for rent and food. He became stressed and depressed from 2011 until 2013. The applicant pulled himself together enough in December 2013 to seek advice about a Protection visa. The applicant reported to the psychologist that he is not in a position to attend before the Tribunal at this time and requests a little more time to get himself together. [Detail deleted]. It is advised that it would be helpful for the applicant to have ongoing professional counselling to help him get back on his feet. It requests that consideration be given on compassionate grounds to allow more time to for the applicant to prepare himself for the Tribunal interview.
The applicant attended the Tribunal hearing on 2 May 2016 and indicated that he had been told by the Tribunal that he should make any additional request for an adjournment at the hearing. The applicant indicated that he needed time to progress with four to five counselling sessions before he would be in a position to give evidence. He indicated that this was likely to take four to five months. The applicant did not provide the Tribunal at the hearing any further medical reports to indicate specific incapacity on the day of the hearing.
The applicant indicated that the difficulties stem from uncertainty about his position in Australia and the difficulties faced in Bangladesh in relation to the death of his parents.
The Tribunal indicated that it was not inclined to grant the second adjournment requested.
The Tribunal declined to grant the adjournment for the following reasons. The Tribunal had scheduled the second hearing following the timeframe in which the prior Medical Certificate had indicated that the applicant was unfit. No additional medical opinion had been provided at the time of the second hearing that the applicant was not in a position to give evidence at the second scheduled hearing. The earlier psychologist’s opinion provided no timeframe for an adjournment. In using expressions that it would be ‘helpful’ for the applicant to have more time to give evidence to ‘get back on his feet’, it did not suggest an acute level of impairment or incapacity suffered by the applicant in term of not being able to appear before the Tribunal. It more suggested to the Tribunal that there would be some challenges in the applicant giving evidence. The applicant himself had indicated a tentative preparedness to give evidence if necessary in his email to the Tribunal in advance of the first scheduled hearing but that more time would have been preferable.
In making this decision, the Tribunal noted to the applicant that, as the hearing progressed, if he felt particular difficulties in giving evidence then he should let the Tribunal know. The Tribunal was conscious, as the hearing progressed, in monitoring the applicant’s capacity to understand questions and respond to them.
Although the applicant did not indicate concerns during the course of the hearing, at the end of the hearing, when the Tribunal put to the applicant his inability to recall key issues such as the occupation of his father or where he lived in Chittagong, the applicant indicated that this was due to his memory difficulties due to psychological issues. The Tribunal asked the applicant when these memory difficulties surfaced. He indicated that they began about a year after the applicant arrived in Australia. The Tribunal noted to the applicant that he had made fairly detailed claims as part of the Protection visa application (after this point in time). There did not seem to be a difficulty in recollecting at that point in time. The Tribunal also notes that in the interview with the delegate of the Minister the applicant answered detailed questions including concerning his family’s accident, where his parents lived, and schools he attended.
The Tribunal notes that in the hearing the applicant paused for significant periods after some questions were asked, without answering. However, when the Tribunal asked the applicant at various points whether he understood the questions were being asked, he indicated that he did. The applicant did respond the concerns that were put to him concerning his evidence.
The Tribunal asked the applicant if he was working. The applicant indicated that he was working [occupation]. The Tribunal asked the applicant about the fact that he was in a sufficiently stable condition to work but not in a position to give evidence to the Tribunal. The applicant indicated that [occupation] is a simple task. The Tribunal acknowledges that his work tasks and giving evidence to the Tribunal are different in scope. It accepts the much greater anxiety that would attend giving evidence to the Tribunal.
At the end of the hearing, the applicant asked whether he would be given the opportunity to give further evidence after he had had further treatment. The Tribunal indicated that it would reflect on this.
On reflection, the Tribunal has decided not to convene another hearing in four to five months when the applicant has completed his course of treatment. The Tribunal is not satisfied that the applicant did not understand questions that were asked of him or that he was unable to make arguments and respond to issues of concern put to the applicant by the Tribunal.
In terms of the applicant’s complete inability to recall some key issues, the Tribunal has some degree of scepticism as to whether the failure of the applicant to recall the employment of his father, or what district he lived in is explicable as a result of stress, depression, and anxiety, which the Tribunal accepts the applicant has been diagnosed with. The Tribunal notes the fact that the applicant provided detailed factual claims as part of his application for Protection and responded to questions of the delegate of the Minister in reasonable detail. The applicant is well enough to work, albeit in a job requiring little mental skill. The Tribunal has some suspicion that the applicant’s lack of recall either demonstrates a lack of candour or is an exaggerated attempt to demonstrate to the Tribunal mental incapacity.
Even if the Tribunal were not to draw any adverse inference from the failure of the applicant to remember these key issues, the Tribunal considers that the cumulative impact of the other deficiencies in his evidence are sufficient in themselves to cause the Tribunal not accept the applicant’s claim to be a Rohingaya Muslim. The Tribunal does not accept that the other deficiencies identified in evidence given by the applicant in the hearing on these issues are a product anxiety, stress or depression in the hearing. The Tribunal is not satisfied that the applicant lacked the capacity to respond to these issues of concern as put to the applicant in the hearing.
Conclusions on credibility and findings
Considering the cumulative impact of the eight areas of concern identified with the applicant’s credibility, the Tribunal is not satisfied that the applicant has been a truthful witness in relation his key claims. As indicated above, the Tribunal remains of the view even if it was to make allowances for the applicant’s complete inability to recall the details outlined in the last two issues.
The Tribunal does not accept that the applicant is a Rohingaya Muslim and was born in Myanmar, and whose family fled to Bangladesh when he was young. The Tribunal does not accept that the applicant’s family were killed in a car accident in 1997 when they were seeking to travel to Pakistan. The Tribunal does not accept that the applicant was cared for by foster parents. The Tribunal does not accept that the applicant’s birth name is [Mr A]. The Tribunal finds that the applicant’s birth name is [Name B] and that he is a Bangladeshi citizen. The Tribunal does not accept that the applicant is stateless.
Assessment
Accordingly, the applicant’s claims are assessed against Bangladesh.
As the Tribunal is not satisfied that the applicant is a Rohingaya Muslim, it is not satisfied that he faces a real chance of serious or significant harm in Bangladesh as a result of being a Rohingaya Muslim. The Tribunal is not satisfied that the applicant would be sent to Myanmar because that is where he was born, and thus he does not face a real chance of serious or significant harm on that basis. The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm due to being stateless.
The Tribunal is not satisfied that claims of harm are made on any other grounds.
In summary, in relation to the Refugees Convention criterion the Tribunal is not satisfied that there is a well-founded fear of the applicant being persecuted for a Convention reason for the reasons claimed, or for any other reason.
In summary, in relation to the complementary protection criterion, 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 for any of the reasons claimed, or for any other reason.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
David McCulloch
Member

[2016] AATA 3881

17 May 2016

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing