1421186 (Refugee)

1421186 (Refugee) [2016] AATA 4486 (21 September 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1421186
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Linda Symons
DATE:21 September 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 21 September 2016 at 5:08pm
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia by boat [in] December 2012. He was detained and subsequently issued with a Bridging visa [in] February 2013. This visa expired [in] April 2013 and he thereafter became an unlawful non-citizen. [In] June 2013, he was granted a further Bridging visa.
The applicant applied to the Department of Immigration and Border Protection (the Department) for the Protection visa [in] April 2013 and the delegate refused to grant the visa [in] December 2014. On 24 December 2014, he applied to the Tribunal for review of the decision.
The applicant appeared before the Tribunal on 31 May 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant was represented in relation to the review by his registered migration agent.
The issues that arise on review are whether Australia has protection obligations to the applicant under the Refugees Convention or under the complementary protection criterion.
RELEVANT LAW
The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
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’).
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The applicant’s claims in his visa application are summarised as follows:
·He is a citizen of Bangladesh. He is a Muslim.
·He was born on [date] in the village of [home village] in the district of Narayangan. He lived at home with his parents and brother. He has [a sibling] who works in [Country 1].
·He completed school in [year]. He thereafter worked in a [service] business on an irregular basis. He did not have a secure job since leaving school.
·For the past [time period] he was involved in politics with the Awami League (AL). They paid him some money when he did political work in his village and the local area. The AL paid for the repair of roads and basic infrastructure and provided funds to people who had problems. He liked the work for the first 7 or 8 months but did not like the work thereafter. Only one tenth of the money went to the community and the rest was taken dishonestly to enrich local members of the AL.
·Members of the AL were also involved in the rape of local girls, alcohol, drug trafficking and kidnapping. There were about 16 members of the AL in his Police Station area and they seemed to be involved in criminal activities including murder.
·In July 2012, a person named [Mr A], who was not involved in politics, was murdered by a person named [Mr B]. He did not say anything because he could have been murdered as well. From October 2012, he decided to leave the AL and join the Bangladesh Nationalist Party (BNP).
·[One day in] October 2012, four members of the AL approached him when he was on the street and beat him on the head with a large wooden stick. He went to hospital to receive treatment. His father wanted him to go to the Police but he was afraid to do so. He knew the Police could not do anything and he could have a bigger problem.
·On the night of [a date in] November 2012, he and his brother were in their room, which was separated from the rest of the house, when five people knocked on the door. His brother looked through a peephole in the door and saw people standing there with a big knife. He escaped through a small window at the back of the room and went to a village named [Village 1] which was two or three villages away from his own. He stayed there with a friend for five days.
·When his younger brother opened the door, the men hit him and asked him where he had gone. He returned to his village after five days and had no problems for the next two days. The group of men then returned and knocked on his parents’ room and asked them where he had gone. He was in his room at the time and was able to leave and go to [Village 1].
·He telephoned his father the following morning and his father asked him to return home. His father told him it was too dangerous for him to remain in their village and he should go to Chittagong to the house of a friend of his [other sibling]. After he left, his father went to the Police but the Police refused to accept his report as they were involved with the AL.
·He stayed in Chittagong for [number] days from [a date in] November 2012. His father told him it was not safe for him to stay there and he needed to leave Bangladesh. His father paid an agent in Chittagong for him to leave Bangladesh and travel to Australia.
·He fears returning to Bangladesh because he fears serious harm from the members of the AL in his area because he has knowledge of the crimes they commit. They would want to silence him and he believes they will carry out the threats they have already made towards him. He has already been injured by them and he believes they came to his house to kill him.
·He does not believe the Police will help him. They are corrupt and are paid off by the AL.
·At the end of February 2013, his father told him that the shop belonging to the younger brother of one of the sixteen AL members was damaged and the Police went to his house asking about his whereabouts. He is being blamed for the damage to the shop and a Warrant has been issued against him.
·He does not believe he can safely relocate anywhere in Bangladesh. The AL is very powerful and they can find him anywhere in the country.
The applicant has provided to the Department copies of a Character Certificate dated [in] January 2013, a Bangladeshi Birth Certificate dated [in] January 2013, a complaint and other documents in relation to a robbery in Bangladesh.
The applicant attended an interview with the Department [in] October 2014. During the interview, he re-iterated and expanded on his written claims and made new claims. He stated that he worked for the AL from some time in [specified time] to October 2012. In July 2012, one of his associates named [Mr B] murdered another associate named [Mr A] over a [debt]. He did not witness the murder but [associated] with the murderer and the victim before the murder and knew the motive for the murder. He left the AL in October 2012 and joined the BNP in the same month. He has been falsely implicated in two crimes since his departure from Bangladesh; the vandalism of a shop and the later disappearance of the owner of that shop. His brother is also implicated in the disappearance of the shop owner. His brother is now missing.
[In] November 2014, the applicant’s migration agent provided the Department with written submissions in response to concerns raised by the delegate. [In] December 2014, the Department refused the application for a Protection visa.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated [in] December 2014. On 30 May 2016, the applicant’s migration agent lodged with the Tribunal a Statutory Declaration by the applicant dated 26 May 2016, pre-hearing submissions dated 30 May 2016 and country information from the International Crisis Group (Political Conflict, Extremism and Criminal Justice in Bangladesh, 11 April 2016). On 14 June 2016, the Tribunal received post hearing submissions from the applicant’s migration agent.

Nationality

The Tribunal finds that the applicant is a citizen of Bangladesh based on his Bangladeshi Birth Certificate, his evidence and his fluency in the Bengali language and will assess his claims on this basis. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than his country of nationality.
Does Australia have protection obligations to the applicant under the Refugees Convention?
The applicant gave evidence to the Tribunal that his migration agent prepared his application for a Protection visa based on his instructions. He stated that his instructions were true and correct.
During the hearing, the Tribunal discussed with the applicant his background, his family, his employment, his involvement in politics, his knowledge of the AL, his reasons for leaving Bangladesh and why he fears returning to Bangladesh. The Tribunal found aspects of his evidence to be vague, implausible, inconsistent and unconvincing. The Tribunal has concerns in relation to his credibility and the veracity of his claims. The Tribunal's concerns are noted below.
In his application for a Protection visa filed [in] April 2013, the applicant claimed that he was involved in politics with the AL for [time period]. He was interviewed by the Department [in] December 2012 and during that interview he claimed that he was involved with the AL for [a shorter time period]. He was interviewed by the Department again [in] September 2014 and during that interview he claimed that he was involved with the AL for [a longer time period]. During his hearing before the Tribunal, he claimed that he was involved with the AL from [time range] to October 2012. The Tribunal put this inconsistent information to the applicant, pursuant to s.424AA of the Act, and noted that they raised concerns in relation to the credibility of his claims of his involvement with the AL.
The applicant requested and was granted additional time to respond to this information. Following the hearing, the Tribunal received post-hearing submissions from his migration agent who submitted that the disparity between the time periods is not so far outside the normal range of variation as to justify an inference that the applicant’s account should be disbelieved, that the entry interview was conducted in a manner that was rushed and did not provide the applicant with an opportunity to properly reflect on his experiences before expressing his recollection of them and the interview with the Department [in] September 2014 was also conducted in a manner that was rushed.
The Tribunal does not accept that the difference between [the shorter time period] and [the longer time period] is not far outside the normal range of variation. Whilst these inconsistencies in the applicant’s evidence may not be significant of itself, when considered in the context of all the other concerns the Tribunal has in relation to the applicant’s credibility, they raise concerns in relation to the veracity of his claims.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated [in] December 2014. It indicates that during his interview with the Department [in] October 2014 he stated that he liked the ideologies of the AL and when asked to describe some of the ideologies and policies he favoured, he did not respond. It indicates that instead he stated that he admired the party leaders, the party’s role in the War of Independence and the party’s support of International Criminal Tribunals. During the hearing, the Tribunal asked the applicant about the policies of the AL. He responded that during the 2008 election they had one main policy to protect democracy, socialism, religion and nationalism. He stated that they want to introduce a digital system to Bangladesh by 2021. When asked about the AL’s economic policies, he responded that they wanted economic development in the country. When asked to be more specific, he responded by increasing income and trade. When asked how they proposed doing that, he responded through a budget and development works.
If the applicant had been a member of the AL (JL) for [the longer time period], attended meetings and rallies and had daily contact with [Mr C], the [Leader Position 1] of the AL in the [Region 1] region, as claimed, the Tribunal would expect him to have had some knowledge of the AL’s policies and ideologies when interviewed [in] October 2014 particularly as he claimed to like the ideologies of the AL and because that interview was closer in time to when he was an active member of the Jubo League (JL).[1] He was unable to refer to their policies during that interview. However, during the hearing which was much later in time to when he was in the AL (JL), he was able to describe the fundamental principles of the AL.[2] When asked for details in relation to the AL’s economic policies, he gave a vague response and was unable to demonstrate an understanding of the economic policies. The Tribunal is of the view that he had studied the fundamental principles of the AL in preparation for the hearing with a view to enhance his claims to have been a member of the AL (JL) and had little or no knowledge of the policies of the AL.
[1] The youth wing of the AL. (Jubo League gets new committee, The Daily Star, 13 September 2012. ( The Constitution of the Bangladesh Awami League. (>
The applicant was initially interviewed by the Department [in] December 2012. During that interview, he was asked about his employment in Bangladesh. He responded that he never worked in Bangladesh. He stated that his father supported him and gave him money for his living expenses. In his Statutory Declaration dated [in] April 2013, setting out his statement of claims, he claimed that he undertook political work for the AL, worked in his village and local area and was paid for doing this work. He claimed that he did this job for [time period], it was a good job for the first 7 or 8 months but he later did not like the work. The Tribunal put this inconsistent information to the applicant, pursuant to s.424AA of the Act, and noted that the inconsistencies in his evidence in relation to his employment raised concerns in relation to the credibility of his claim that he worked for the JL or the AL.
The applicant responded that he initially did [an occupation 1] job but did not consider that a job because it did not give him a regular income. He stated that when he was asked whether he did any other work he did not understand the question. He stated he did not think that the work he did for the JL was a job and that is why he did not mention it. In his Statutory Declaration dated 26 May 2016, he stated that when he joined the JL he was part of a small group of [number] people who worked together to administer the AL’s relief and construction activities in the region.
In his Statutory Declaration dated 26 May 2016, the applicant stated that when he joined the JL he was introduced to [Mr C] who was the [Leader Position 1] of the AL in the [Region 1]. He stated that he had daily contact with [Mr C] as he reported to him to update him on their progress and obtain instructions on their daily activities. He also stated that he was paid a monthly income of approximately [amount range] taka per month and sometimes received over [the larger amount] taka per month if there was a large construction or multiple projects in a month. He stated that if he organized rallies he received an additional payment totalling [higher range] taka per month.
In post-hearing submissions, the applicant’s migration agent submitted that the applicant drew a distinction between steady, long term and full time formal employment and an activity that attracts remuneration. He submitted that this caused confusion during the hearing. He submitted that the Tribunal should not draw an adverse inference from an apparent inconsistency in the evidence as there appears to have been a genuine misunderstanding on the part of the applicant as to the meaning of the question put to him at the interview [in] December 2012. Whilst this is a possible explanation for the inconsistencies in the applicant’s evidence, it is not consistent with the applicant’s own evidence.
In view of the applicant’s evidence to the Tribunal that he did not consider the [occupation 1] job to be a job because it did not give him a regular income, the Tribunal would expect him to consider his work for the JL to be a job as, on his evidence, he attended work every day, reported his progress to [Mr C] on a daily basis and received a regular monthly income for his work. However, the Tribunal is prepared to give him the benefit of the doubt in relation to this issue.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated [in] December 2014. It indicates that during his interview with the Department [in] September 2014, he stated that he was paid between [different range] taka per month for the work he did for the JL and was paid a further [amount] taka per month for attendance at party rallies and meetings totalling [a larger total] taka per month. These figures are not consistent with his evidence in his Statutory Declaration dated 26 May 2016 in which he stated that he was paid approximately [amount range] taka per month and sometimes received over [the larger amount] taka per month if there was a large construction or multiple projects in a month although he did state that the amounts fluctuated.
Of greater concern to the Tribunal is the fact that during his interview with the Department the applicant claimed that he was paid for attending party rallies and meeting but in his Statutory Declaration [in] May 2012 he stated that he was paid for organizing rallies. During the hearing, the Tribunal asked him a number of questions in relation to what he did as a member of the JL and he did not mention organizing rallies. He gave evidence to the Tribunal that he was paid to attend party meetings. The Tribunal finds it implausible that, as a member of the JL and/or AL, the applicant was paid money to attend party meetings. The inconsistency in his evidence in relation to whether he was paid for attending party rallies and meetings or whether he was paid for organizing rallies raises further concerns in relation to his credibility and the veracity of his claims.

In his application for a Protection visa, the applicant claimed that in July 2012 a person named [Mr A] was murdered by a person named [Mr B]. He claimed that he did not say anything as he could have been murdered as well. During the hearing, he gave evidence that he, [Mr A], [Mr B] and [Friend A] were friends. He stated that after [Mr A’s] death [Friend A] told him that [Mr B] had killed [Mr A]. He stated that [Mr B] had found out what [Friend A] had told him and threatened [Friend A]. He stated that [Friend A] advised him to keep quiet and he did so as he took the threat seriously. He stated that his relationship with [Mr B] subsequently deteriorated and [Mr B] used to get annoyed with him if he asked him anything. He stated that this incident was one reason why he left the JL and the other was that he did not like the behaviour of the other members of the JL who were stealing AL money and were involved in kidnapping and rape.
The applicant gave evidence to the Tribunal that he joined the JL in [specified time] and left in October 2012. Despite his evidence to the Tribunal that he did not like the behaviour of the other members of the JL and what they were involved in, he did not leave the JL until October 2012 about [time period] later. The Tribunal would expect that if the murder of [Mr A] and his knowledge of his murderer’s identity was one of the two main reasons why he left Bangladesh, he would have said so at the earliest opportunity when he was asked why he left Bangladesh. He was interviewed by the Department [in] December 2012 and was asked why he left Bangladesh. In his response, he spoke about political issues but made no mention of [Mr A’s] death or his fears for his safety because he was aware of his murder’s identity. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that it would expect him to have mentioned this if it was one of the two main reasons why he left Bangladesh and its concerns that his failure to mention this raised concerns in relation to the credibility of this claim.
The applicant requested and was granted additional time to respond to this information. Following the hearing, the Tribunal received post-hearing submissions from his migration agent who submitted that the audio recording of the interview [in] December 2012 indicates that the applicant’s response to the question ‘why did you leave your country of nationality (country of residence)’ lasted 10 minutes suggesting that the opportunity to go into detail was limited. He also submitted that the space on the form for his answer consisted of no more than half a page, suggesting that the answer to the question was not intended to be comprehensive. He further submitted that the second last line of the text indicates that he responded ‘I stop participating and I know information about…’, was apparently consistent with his later claims as it confirmed that he had incriminating information on the people to whom he was referring even if he failed to fully articulate the nature of this information.
The Tribunal has considered these submissions and rejects them for the following reasons. Firstly, whilst the applicant’s response to the question lasted 10 minutes it does not follow that his response was limited to 10 minutes. The Tribunal is of the view that in 10 minutes he would have had plenty of time to mention his two main reasons for leaving Bangladesh without having to go into great detail even taking into account his level of education, cultural factors, him speaking through an interpreter and that he was probably nervous and anxious.
Secondly, whilst the space on the form for the applicant’s response may have been half a page suggesting that the answer to the question was not intended to be comprehensive, the Tribunal would expect the applicant to give his main reasons for leaving Bangladesh in brief and provide the details at a later date. However, he made no mention of [Mr A’s] death and his subsequent fears. Thirdly, the applicant’s response on the second last line of the text referred to in paragraph 33 above needs to be considered in context. It was given in the context of him stating that he had stopped participating in politics and was at risk because he knew information about what the group involved in politics was up to.
The applicant confirmed this during the hearing, when he stated that he was at risk because he knew that they were stealing money that was intended for development work and were involved in kidnapping and rape. Therefore, the Tribunal does not accept the submission that the unfinished sentence is “apparently consistent with the applicant’s later claims” in relation to [Mr A’s] murder.
In his application for a Protection visa, the applicant claimed that in October 2012, he decided to leave the AL and join the BNP. During the hearing, he gave evidence that he joined the BNP in mid-October 2012. He gave evidence that he spoke to a BNP leader, told him the problems he was having and was told that if he joined the BNP they would protect him and provide him with some spending money.
The Tribunal finds it implausible that, having been a member of the JL for several years, he would have left the JL and immediately joined their main opposing party[3] thus making himself a target for retaliation by the JL and the AL. The Tribunal also finds it implausible that the BNP would have offered to protect him when they were an opposition party and not the party in government and when, according to the applicant, the Police are involved with the AL, are corrupt and paid off by the AL. The Tribunal also find it implausible that the BNP leader would have offered to provide him with spending money when the BNP was not the party in government and did not have access to government funds. The Tribunal asked the applicant why he did not go to a city like Dhaka or Chittagong to seek employment if he needed a job. He responded that he did not know that there were jobs available for him in those locations. The Tribunal finds this response to be disingenuous and implausible.
[3] List of political parties in Bangladesh, Revolvy.
The Tribunal raised this as an issue with the applicant. He responded that he did not join the BNP immediately thereafter. He stated that he started thinking of leaving the JL and joining the BNP after [Mr A’s] murder and then spoke to a BNP leader. In post hearing submissions, the applicant’s migration agent referred to paragraph 37 of the applicant’s Statutory Declaration dated 26 May 2016 in which he stated “although I was scared of leaving the JL after this incident, I made the decision to leave and join the BNP. I had no other financial option and I thought that perhaps the BNP could protect me from the JL if I was a member of the BNP party. A few days after the incident, I joined the BNP.” He submitted that the applicant’s explanation is not implausible when viewed in the context of the marginal economic activity with which he had previously supported himself.
The applicant’s oral evidence to the Tribunal is inconsistent with his written evidence. In his Statutory Declaration dated 26 May 2016, he stated that a few days after the incident ([Mr A’s] murder) he joined the BNP. In his visa application, he stated that [Mr A] was killed in July 2012. In his oral evidence to the Tribunal, he stated that he joined the BNP in October 2012. This is considerably longer than a few days after [Mr A’s] murder. These inconsistencies in his evidence raise further concerns in relation to his credibility and the veracity of his claims.
In his visa application, the applicant claimed that on the night of [a date in] November 2012 he and his brother were in their room, which was separated from the rest of the house, when five people knocked on the door. He claimed that his brother looked through a peephole in the door and saw people standing there with a big knife. He claimed that he escaped through a small window at the back of the room and went to a village named [Village 1] which was two or three villages away from his own. He claimed that his brother opened the door, the men hit him and asked him where he had gone. He claimed that he stayed in [Village 1] with a friend for five days.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated [in] December 2014. It indicates that during his interview with the Department [in] September 2014, the applicant gave a different version of this incident. He stated that he escaped through the back door of the house. He also stated that the assailants hit his brother with hockey sticks and stabbed him with a knife.
During the hearing, the Tribunal discussed this incident with the applicant. He gave evidence that there was a knock on his bedroom door at about 1am or 1.30am. He stated that he woke up and was scared. He stated that he asked his brother to look through the keyhole and his brother saw 4 to 5 people armed with hockey sticks and a sword. He stated that his brother whispered to him to leave the area and he exited through the back door. He stated that he went to the village of [Village 1] where he stayed at a friend’s house. He stated that he contacted his family the following morning and his father told him that his brother had opened the front door and the masked men asked his brother where he was and his brother responded that he did not know. He stated that they pushed his brother and hit him with a hockey stick on his arm and leg.
There are several inconsistencies in the applicant’s evidence in relation to whether the people were armed with a big knife or hockey sticks or a sword; whether he escaped through a small window or the back door of the house and whether his brother was hit by the men or hit with hockey sticks and stabbed with a knife or hit with a hockey stick on his arm and leg. When the Tribunal raised as an issue with the applicant the many inconsistencies in his evidence and its concerns about the credibility of his claims, he responded that this incident happened a long time ago, he forgets dates and his is forgetful. The Tribunal does not accept this explanation. The Tribunal is of the view that this would have been a significant event in his life which contributed to him leaving Bangladesh and it is unlikely that he would have forgotten important details of this incident.
In his visa application, the applicant claimed that at the end of February 2013, his father told him that the shop belonging to the younger brother of one of the sixteen AL members was damaged, the Police went to his house asking about his whereabouts, he is being blamed for the damage to the shop and a Warrant has been issued against him. The applicant has filed with the Tribunal a copy of the Department’s decision record dated [in] December 2014. In indicates that during his interview with the Department [in] September 2014, the applicant stated that the shop belonging to the younger brother of one of the sixteen AL members was robbed (not damaged) in May or June 2013 and the shop owner went missing a couple of months later (July or August 2013). If the shop was damaged in May or June 2013, the applicant’s father could not have informed him of this incident at the end of February 2013.
During the hearing, the applicant stated that there was an argument, some people damaged the shop and goods and took money. He stated that a complaint was made to the Police, the perpetrators’ names were given to the Police and his name was included. He stated that there was a Court case and the Court found that he was involved in this incident. He stated that the Court issued a Warrant against him. He stated that the Police visited his home, asked his father if he knew a person by that name and his father responded that that was his son’s name. He stated that they asked his father where he was and his father responded that he did not know. He stated that the Police told his father that they were looking for him and handed his father the Warrant. He stated that he provided a copy of this Warrant to the Department.
The applicant gave evidence to the Tribunal that about 1 ½ to 2 months after this incident the shopkeeper was kidnapped and another complaint was made against unknown people. He stated that both he and his brother were accused of being involved in the kidnapping. He stated that the Police informed his father of this incident, told him his sons were two of the accused and again provided him with a document. He stated that he has provided this document to the Department as well. When asked whether these documents are authentic, he responded that these documents were given to his father by the Police and the Police told his father that they came from the Court.
The applicant has provided two documents to the Department and two documents to the Tribunal together with English translations. None of these documents is a Warrant. The two documents provided to the Department are very poorly translated into English and difficult to make sense of. The two documents provided to the Tribunal have better quality English translations. The first document is titled ‘Charge Sheet’ and has two dates on it; [one in] April 2013 and [the other in] February 2013. It was signed by the officer in charge at [a named Police Station in] Narayanganj [later in] April 2013. It names four accused including the applicant. It describes an incident [in] February 2013 where there was a violent altercation in the bazaar between a shopkeeper and several other people. It refers to the accused entering the shop and stealing cash of about [one amount] taka and goods valued at about [a different] taka.
The second document provided to the Tribunal is also a Charge Sheet and is dated both [in] May 2013 and [in] March 2013. It was signed by the [Senior Officer 1] at [the named Police Station in] Narayanganj on [a date in] May 2013. It names five accused including the applicant and his brother. It describes an incident [in] March 2013 where the same shopkeeper was abducted from the shop by unknown persons wearing masks. It refers to two other shopkeepers approaching them but being threatened with weapons while they plundered the shop. It refers to them taking about [larger amount] taka in cash and goods worth about [even larger amount] taka.
The Tribunal has a number of concerns about the authenticity of these documents. Firstly, the two documents are both Charge Sheets and are in the same format. However, the first document is [Form Number A] and [Form Number B]. The second document is [Form Number C] and [Form Number D]. The Tribunal finds it implausible that the same form, used for the same purpose, from the same Police Station and used within a month of each other would have different [specified form] numbers and [other different form] numbers.
Secondly, it is clear from the applicant’s evidence during the hearing that the two documents he refers to as ‘Warrants’ are the two Charge Sheets that he provided to the Department and the Tribunal. If the first Charge Sheet was not signed by the officer in charge at [the named Police Station in] Narayanganj until [later in] April 2013, this document could not have been given by the Police to the applicant’s father and his father tell him about it at the end of February 2013 as claimed.
Thirdly, the applicant gave evidence to the Tribunal that the Police handed the two Warrants to his father, on separate occasions, and told him that they came from the Court. The documents that have been provided to the Department and the Tribunal are not Warrants but Charge Sheets. Further, they have not been issued by the Court but by the officer in charge of [the named Police Station in] Narayanganj, in the case of the first document and by the [Senior Officer 1] at [the named Police Station in] Narayanganj, in the case of the second document.
Fourthly, the applicant made no mention of the kidnapping incident and him being charged in relation to this incident in his visa application. This claim was made for the first time during his interview with the Department [in] September 2014. The documents indicate that this incident took place [in] March 2013 and he filed his visa application [in] April 2013. The applicant’s evidence to the Tribunal was that he has telephone contact with his family in Bangladesh once or twice a week and in cases of sickness or an emergency, every day. The Tribunal would therefore expect his father to have informed him of the kidnapping of the shopkeeper shortly after it occurred. The Tribunal would also expect that if he referred to the first incident in his visa application he would also have referred to the second incident in his visa application.
Fifthly, the Tribunal would expect that if these two documents were given to the applicant’s father at the times he claims, he would have obtained copies of these documents and provided them to his migration agent who could have then lodged them with the Department in the first half of 2013. However, he did not provide the documents to the Department until [in] September 2014.
The Tribunal raised as an issue with the applicant its concerns in relation to the authenticity of these documents. The Tribunal also discussed with him country information on Bangladesh which indicates that that there is a significant prevalence of fraudulent documents in Bangladesh and that there is no difficulty at all for anyone to obtain these documents.[4] He responded in words to the effect ‘how am I going to prove the authenticity of these documents?’
[4] CX316824: "BGD103532.E Bangladesh Reports of fraudulent documents", Canada: Immigration and Refugee Board of Canada (IRB), 20 September 2010, (Opens in a new window)
During the hearing, the applicant gave evidence that his migration agent prepared his application for a Protection visa based on his instructions. He stated that his instructions were true and correct. Question 66 on the Application for a Protection visa refers to details of any convictions, charges, investigations or crimes committed. The first part of that question asks ‘please give details of any crime or offence that you have been convicted of’. The second part of that question asks ‘please give details of any criminal investigation you are the subject of that you are aware of’ is. The third part of that question asks ‘please give details of any criminal charges currently pending against you’. The applicant responded ‘N/A’ in relation to each of these questions. Based on his own evidence in his visa application, the applicant was clearly aware of at least the first incident involving the damage to the shop, that he was named as one of the perpetrators, that the Police were investigating this crime and went to his house asking about his whereabouts and that a “Warrant” had been issued against him. This tends to indicate that he was aware that he was the subject of a criminal investigation and that there was a criminal charge pending against him.
The Tribunal raised this as an issue with the applicant. The Tribunal noted that this could lead it to the conclusion that he answered these questions truthfully and that his claims in relation to being falsely charged and warrants issued against him to be fabricated. He responded that he always said the Police were looking for him and questioned when he said they were not looking for him. In post hearing submissions, the applicant’s migration agent submitted that the applicant responded to this question in his visa application [in] March 2013. He stated that his statement of claims was made [in] April 2013, after he had signed the visa application [in] March 2013. He stated that the Charge Sheets are dated [in] April 2013 and [in] May 2013 and therefore there was no reason to expect that the applicant could have indicated that he was aware that criminal charges had been laid against him.

The Tribunal has considered this submission. However, it only addresses one of the questions in question 66 of the visa application and does not address the question in relation to being the subject of a criminal investigation. Whilst the applicant’s statement of claims may have been dated [in] April 2013, in that statement of claims he claimed that at the end of February 2013 his father informed him that the shop of the younger brother of one of the 16 JL members was damaged, that he was being blamed for the damage to the shop, that the Police went to his house asking for his whereabouts and that a Warrant had been issued against him. He also gave evidence to the Tribunal that he had telephone contact with his family in Bangladesh once or twice a week and in cases of sickness or an emergency, every day. He would therefore have been aware on [that date in] March 2013, when he signed his visa application, that he was the subject of a criminal investigation. However, he responded ‘N/A’ to that question. This raises further concerns in relation to the applicant’s credibility and the veracity of his claims.
In his Statutory Declaration dated 26 May 2016, the applicant made a new claim that he would face problems if he returned to Bangladesh because he did not have a passport. During the hearing, the Tribunal discussed this claim with the applicant. He responded that it is not a problem and if he is asked questions he just has to tell them. His migration agent submitted that the applicant is not claiming a well-founded fear of persecution because he has no passport or left Bangladesh illegally. The Tribunal will therefore disregard this claim.
The Tribunal has had regard to the country information on Bangladesh provided by the applicant as well as other relevant country information on Bangladesh. The Tribunal has also had regard to the DFAT Country Information Report on Bangladesh and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility.
Findings
Having considered all the applicant’s claims, all the evidence and the submissions, the Tribunal finds that the applicant is not a reliable or credible witness. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.
The Tribunal accepts that the applicant was born on [date] in [home village in] Narayanganj District in Bangladesh. The Tribunal accepts that he is of Bengali ethnicity and is a Muslim. The Tribunal accepts that he has parents and [two siblings]. The Tribunal accepts that his older [sibling] lives and works in [Country 1]. The Tribunal accepts that he had [number] years of schooling in Bangladesh and completed school in [year]. The Tribunal accepts that he worked in a [service] business between [year] and 2010 but that it did not provide him with a regular income. The Tribunal accepts that he primarily relied on his parents for his financial support. The Tribunal accepts that he is single.
The Tribunal accepts that the applicant obtained a passport in 2006 in the hope that he would get an opportunity to go to another country. The Tribunal accepts that his [sibling] tried to obtain a visa for him to work in [Country 1] but was unable to do so. The Tribunal accepts that he left Bangladesh in November 2012 to travel to Australia. The Tribunal accepts that he arrived in Australia by boat [in] December 2012.
The Tribunal does not accept that the applicant was a supporter or a member of the JL or the AL or that he was involved in politics with the AL. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal does not accept that he was a member or supporter of the BNP. The Tribunal does not accept that [Mr A] was murdered by [Mr B] in July 2012. It follows that the Tribunal does not accept any of his claims that flow from that.
The Tribunal does not accept that the applicant or his younger brother have been implicated in any criminal offences, been the subject of criminal investigations, been charged with criminal offences, had cases against him or them go before the Court and Warrants issued against him or his younger brother. The Tribunal does not accept that the Charge Sheets provided by the applicant to the Department and the Tribunal are authentic documents. The Tribunal does not accept that his younger brother has been missing since 2014.
The Tribunal does not accept that the applicant was or is of adverse interest to the JL or the AL. The Tribunal does not accept that the applicant was or is of adverse interest to the Bangladeshi Police, Bangladeshi Courts or any other Bangladeshi authority.
The Tribunal does not accept that the applicant left Bangladesh for any of the reasons claimed. The Tribunal does not accept that he fears returning to Bangladesh for any of the reasons claimed.
The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of his actual or imputed political opinion or any other Refugee Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Refugee Convention reason. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
The Tribunal has rejected the entirety of the applicant’s material claims on the basis that they were fabricated for the purpose of obtaining a Protection visa. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Bangladesh now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.

Linda Symons
Member

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1421186 (Refugee) [2016] AATA 4486

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[2016] AATA 4486

21 September 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction