1421395 (Refugee)

[2016] AATA 3923

1421395 (Refugee) [2016] AATA 3923 (30 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1421395

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Paul Millar

DATE:30 May 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 30 May 2016 at 3:39pm

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).  The applicant, who the Tribunal finds to be a citizen of Bangladesh, applied for the visa [in] August 2013 and the delegate refused to grant the visa [in] December 2014.[1] The applicant appeared before the Tribunal on 20 May 2016 by way of video conference 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 representative attended the hearing.

   [1] The Tribunal’s finding as to citizenship is based on his ‘nationality / character certificate’ which appears on the department file at folio 23.

2. 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, as the delegate’s decision was made after 16 December 2014, the effect of r.2.08F is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD) visa.

   RELEVANT LAW

3. 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.

4. 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).

5. 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.

6. 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’).

7. 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 (‘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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[2]

   [2] In this respect, the Tribunal has taken account of DFAT Country Report Bangladesh dated 20 October 2014.

   FINDINGS

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.  According to his evidence to the department and the Tribunal, the applicant claimed protection on the ground that the Awami League will harm him because of his and his [brother’s] involvement with the Bangladesh Nationalist Party (‘the BNP’).[3]  The Tribunal holds the following concerns about the applicant’s credibility.

   Credibility concerns

   Inconsistent evidence about the political activities undertaken by the applicant and his [brother]

   [3] The applicant's evidence to the department and the Tribunal comprised his evidence at an interview with an officer of the department held in May 2013 for which there is a written record on the department file; his evidence in his statutory declaration made [in] July 2013; his evidence at his interview with the delegate for which there is an audio recording on the department file and to which the Tribunal has listened and the applicant's evidence at the Tribunal hearing.

9. To the Tribunal, the applicant said that his [brother] used to live with him and the rest of the family in the native village where he operated a [service] business.  His [brother] began involvement with the BNP in 2003.  His activities at that time were to call people together for the party, erecting stages for gatherings and going door to door and telling people in the area to support and vote for the party.  His brother had a position like ‘president’ for the BNP in the applicant’s native village.  When party representatives would come to the village they would give the applicant’s [brother] instructions about work to be done including [projects].  Over the years from 2003 the Awami League would approach the applicant’s brother on the street carrying hockey sticks and threaten him to stop his activities or there would be consequences.

10. After the Awami League came to power in elections held in late 2008, these incidents were more frequent and the applicant’s [brother] was beaten by them a few times.  His injuries were such that the family had to take him to hospital for treatment.  The Awami League tried to block him from doing party work.  In fear for his safety, the applicant’s [brother] stopped living in the family home in the native village and went to live in the home of his [relatives] about two and a half hours’ journey by bus.  His wife and children joined him there not long after in early 2009.  From this time the applicant’s [brother] would return to the family home in the native village now and again to see them.  He would come at night and leave early the next morning.     

11. When asked by the Tribunal what political activities his [brother] undertook for the party once the Awami League came to power, the applicant said that there were no activities from that time because they were not allowed.  Instead, his [brother] would keep in contact with party leaders and whenever there were party protests, marches or rallies in the village he would organise for men to participate in them but he never went in them himself.  That was because he was afraid that if he did he would be assaulted by the Awami League members.  However, when senior party leaders came to the native village to hold meetings the applicant’s [brother] would attend them.

12. The Tribunal asked the applicant about his own activities for the BNP.  In his responses, the applicant said that he became involved with the party because of his [brother].  He began doing this in 2008 and he attended a number of party rallies when his [brother] told him to, the last one being in August 2012.  His [siblings] went along to some of those rallies with him.  He said that after the elections were held in December 2008 and the Awami League came to power he was not as much involved.  When asked what his activities were from that time, he referred to the rallies, meetings and going door to door to homes in the village telling people to vote for the party.

13. The Tribunal asked the applicant when he ceased that particular activity.  He said that he kept doing that canvassing work after the last rally he attended in August 2012.  From late 2012 people from the Awami League began to threaten the applicant asking him why he was going from door to door telling people to vote for the BNP.  They would ask him what his problem was and threaten to beat him if he continued.  On one occasion, in January 2013, a group of Awami League supporters approached him on the street carrying sticks, slapped him and again told him to cease his activities.  The applicant was not put off by those threats and he continued to do the door-to-door canvassing work for the BNP. 

14. However, in January 2013, a large number of people from the Awami League entered the family home carrying weapons and asking for the [brother]’s whereabouts.  While they were looking for him, the applicant told the Tribunal that a large number of them had come to the home on this occasion not just to locate the [brother] but because the applicant would not stop his canvassing work for the party.  He said that this was the first time people from the Awami League had ever gone to his family home and they came because he had become ‘seriously involved’ in his canvassing work causing he and his [brother] to become the enemies of the Awami League.   

15. All family members at home at the time were beaten but the applicant sustained a cut to his [body] for which he had to remain in hospital for one month.  He ceased his political activities.  Following that visit from the Awami League, the applicant’s [brother] never returned to the family home to visit.  However, approximately [number] days after the applicant was discharged from hospital and returned to the family home, about 20 men from the Awami League entered the home looking for the applicant’s [brother].  On this occasion they said that if they did not find the [brother] they would kill the applicant.  Again, they assaulted all family members present at the time. 

16. One month after this visit these people again came to the family home knocking on the door and demanding entry.  The applicant’s parents told him that he should flee from the home because of his own political activities and the applicant escaped from the house through the back door.  He telephoned his brother who told him to go to the home of a friend in Chittagong where he remained for one night during which time his brother had contacted an agent who was able to have the applicant leave Bangladesh illegally by boat the following day.  People from the Awami League have continued to visit the family home once per month or every two months making threats and causing trouble.

17. The Tribunal understood the applicant’s evidence about his [brother]’s involvement in the BNP to be as follows.  His [brother] was very active in the party from 2003 but reduced those activities once the Awami League came to power following elections held in late 2008.  This was because from that time they began to, more frequently, threaten him and they also beat him on a few occasions for which he needed medical treatment.  For his safety, from that time, he stopped living in the family home and lived elsewhere with his [relatives].  In fear for his safety, he only returned to see his family at night and did not stay. 

18. His activities were also reduced from late 2008 because the party was not allowed to operate and while he maintained contact with party leaders and did attend meetings in the native village when senior party leaders went there, he did not himself attend any protests or rallies (again for his own safety).  This evidence was inconsistent with the evidence the applicant gave in his statutory declaration made [in] July 2013 with respect to his [brother]’s involvement in the BNP.  In this declaration, the applicant said that his [brother] had been a supporter of the party since 2003.  After giving that evidence, in his declaration the applicant stated as follows (verbatim):

    “In about 2008, he became the provincial leader for the BNP.  He was very active in the party.  He gave speeches during party meetings, canvassed votes etc.”

19. Further, in his declaration, the applicant conveys the impression that it was not until after the first visit to the family home by the Awami League in January 2013, that his brother actually stopped living there and went into hiding at the home of his [relatives].  In this respect, in his declaration the applicant said that when that visit was made his brother was not home at that time, but, after the incident, he did not ‘return to [the] home’ because he was afraid that the Awami League members would come back and harm him.  In his declaration, the applicant said that, instead, his brother ‘fled to the home of his [relatives], and has been living there in hiding ever since’.  

20. The Tribunal put to the applicant that its impression from this evidence was that from 2008 his brother became a party leader and became very active in the party undertaking a range of activities.  According to this evidence, his [brother] lived at the family home up until the first visit from the Awami League in January 2013 and did not go into hiding at the home of his [relatives] until that time.  The Tribunal put to the applicant that this was inconsistent with his account to the Tribunal that, from 2008, after the Awami League came to power, his brother reduced his activities and was living covertly at the home of his [relatives]. 

21. In response to this discrepancy, the applicant said that his [brother] would come and go from the family home and in January 2013 the Awami League people came to the family home and beat him.  The applicant then attempted to change his account and said that in fact from 2008 his brother reduced his [service] business work not his political activities.  The Tribunal rejects that response because the applicant was very clear in his initial evidence that his brother virtually went into hiding after the Awami League came to power at the end of 2008, the applicant stating that his brother was too afraid to take part in protests and marches in fear of being harmed. 

22. At the hearing, the representative submitted that the applicant may not have known what activities his [brother] was undertaking after he went into hiding in early 2009.  He submitted that it was possible that his [brother] was still undertaking political activities.  The applicant himself said that after going into hiding his brother still attended party meetings in the native village when senior leaders went there.  However, it was also his initial evidence that his brother, otherwise, very much reduced his political activities.  What concerns the Tribunal, is not precisely what activities his brother was undertaking after going into hiding, but, the applicant’s inconsistent evidence as to his understanding and knowledge of that.

23. The Tribunal then put to the applicant that it understood his evidence to the Tribunal about his own political involvement to be that from 2008 he got involved with the party but once the elections were held in December 2008, elections his party lost, he was not as much involved.  That involvement was going to some rallies and meetings and then canvassing work door-to-door soliciting votes for the party.  It was that latter work that led to him receiving threats from the Awami League and because he continued that canvassing work, finally, in January 2013, for the first time, people from the Awami League came to the family home.

24. The Tribunal put to the applicant that this was not consistent with his evidence in his statutory declaration about this.  In his declaration, the applicant did say that he got involved from 2008 attending some meetings, demonstrations and ‘from time to time as required’ canvassing votes.  However, the applicant made no mention of receiving threats from the Awami League himself because of that work and made no claim in his declaration that the Awami League came to the family home for the first time in January 2013 for any reason other than their interest in his [brother]. 

25. In response to these discrepancies, the applicant said that he told the delegate that he was threatened because they could not locate his [brother].  He claimed that he told the delegate that he supported the party and was beaten for that reason but perhaps the interpreter did not explain that.  At the hearing, the representative submitted that the applicant’s education was limited and he would only give evidence according to the questions that he was asked.  The representative submitted that the delegate focused on certain issues but not so much about the applicant’s own involvement and harm he suffered for that reason.  It was submitted that the applicant was very much guided by the delegate through this interview.

26. The Tribunal has made allowance for those matters, but, what concerns the Tribunal, is that, in his statutory declaration, the applicant did not advance important claims, to the effect that because of his own political activities he was threatened by the Awami League and this was a reason they came to the family home in July 2013 apart from their interest in his [brother].  In his statutory declaration, the applicant said that he was providing a summary of his protection claims and not an exhaustive statement.  The Tribunal also acknowledges those comments, but, the Tribunal considers that, if the applicant was relating a truthful account, he would have mentioned in this declaration these important claims.

27. At the end of the declaration, the applicant broadly expressed a fear of harm based on his and his brother’s involvement with the BNP.  However, the Tribunal still remains concerned that in that part of the declaration where relating an account of his own political activities he did not say he got threats from the Awami League.  In that part of the declaration where relating his account of the people from that party coming to his home from January 2013 he said nothing about those visits being because of him.

    The applicant’s movements following the visits to the family home by the Awami League

28. To the Tribunal, the applicant said that after the first visit to the family home by the men from the Awami League in January 2013 he spoke to his brother and told him about that.  His brother told him to be patient and that he would speak to party leaders and see what could be done.  When asked if his [brother] told him that he should flee from the family home given that one reason the visit occurred was because of the applicant’s own political activities, the applicant said that his [brother] just said that he would try to arrange something.  When the Tribunal asked the applicant what that was, he said that his brother told him that he would send him to another country and try to contact an agent about that.

1. The Tribunal asked the applicant why he actually remained living at the family home once discharged from hospital and after the first visit from the Awami League in January 2013.  In response, the applicant said that this was because his brother told him to be patient and he would arrange something.  The Tribunal asked the applicant why he did not flee from his family home after the second visit from the Awami League.  In response, the applicant said that when they came on that occasion he was sick and lying in bed.  He then repeated his evidence that the men told him the next time they would kill him.

2. When again asked why he did not flee from the family home after that second visit, he said that he telephoned his [brother] who again just told him to be patient while he tried to arrange something.  The Tribunal had difficulty accepting that the applicant would not have sought to live in some other part of Bangladesh after the first visit in January 2013 (and also after the second visit when he was told that next time they would kill him).  His account that following the first visit to the family home by the Awami League in January 2013, he continued to stay at the family home, but, within a day of the third visit, some two and a half months later, departed from Bangladesh, did not bear the ring of truth.   

3. When these concerns were explored with him at the hearing, the applicant said that following the first visit to the family home by the Awami League, he could not really live anywhere else.  His brother was just telling him to see how things went.  Only after the third visit was he able to leave.  At the hearing, the representative submitted that after the first visit nobody knew that the Awami League would come back.  It was submitted that the Tribunal should consider the applicant’s decision to remain in the family home from his perspective at that time.  Further, he had been injured from the first visit and had to go to hospital. To the delegate, the representative submitted that the applicant could not live anywhere else in Bangladesh because he would be located by the Awami League and would continue his political activities.  The applicant made similar claims in his statutory declaration.

4. The Tribunal has considered these claims and submissions but is not persuaded by them.  The Tribunal does not accept that it was only after the third visit that the applicant was able to leave his home.  After that first visit the applicant would have well appreciated that there was a strong chance that the Awami League people would return to the family home and he was at heightened risk because his brother was not staying there anymore and the applicant himself had been previously threatened because of his own activities. 

5. While the applicant received treatment in hospital after the first visit, the Tribunal is still sceptical of his evidence that he simply returned home and was willing to remain there notwithstanding the risk he was in.  The Tribunal can acknowledge a risk of him being found in another part of the Bangladesh.  However, as stated above, the Tribunal is sceptical of the applicant’s evidence about still living at his home two and a half months after the first visit but then very quickly leaving the country after the third visit.

   Conclusions on credibility

6. At the beginning of the hearing, the Tribunal advised the applicant that a purpose of the questions it would be asking him was to assess his credibility.  The Tribunal advised him that although the delegate believed that he had supported the BNP, the Tribunal would have to determine for itself whether or not his account of his and his brother’s involvement with the BNP and the harm he claims ensued from that, was credible.  Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.

7. Accordingly, the Tribunal disbelieves the applicant’s evidence that his brother, the applicant himself and other family members supported, undertook activities for and were involved with the BNP; that the applicant or any member of his family were ever threatened or harmed in Bangladesh by people from the Awami League and that people from that party ever came to the applicant’s house at any time in Bangladesh.  The Tribunal also disbelieves claims the applicant made at the Tribunal hearing that eight months earlier the family lost contact with his [brother] and that nine months before the hearing one of his [siblings] left Bangladesh for his safety and went to live in [another country] (because the Awami League kept coming to look for the [brother]). 

8. In reaching these findings, the Tribunal took into account the applicant’s submission and that of his representative at the interview with the delegate and to the Tribunal, that the applicant had a low level of education.  Even making allowance for that factor, the Tribunal still does not accept that, if the applicant was telling the truth, he would omit important evidence from his statutory declaration.  The Tribunal still remains concerned by the applicant’s account of remaining at his home after the first visit by the Awami League.  The Tribunal is satisfied that its concerns about his credibility have not arisen because of his level of education. 

9. There is no credible evidence that the applicant or any member of his family suffered harm in Bangladesh and there is no credible evidence that anyone in Bangladesh seeks to harm them.  There is no credible evidence as to why the applicant left Bangladesh and why he does not want to return there.  At the interview with the delegate, the representative submitted that on return to Bangladesh, because he left the country illegally, the authorities there would want to know why the applicant left the country and will be suspicious of him.  It was submitted that there is no country information about how the government in Bangladesh treats returnees.  It was submitted that on arrival or when the applicant returned to his local area, the authorities there will think he went to Australia for economic reasons and so they will demand money from him.

10. Available country information indicates that if a person leaves or attempts to leave Bangladesh without a valid passport they may face imprisonment or a fine, but, DFAT is not aware of these penalties being enforced.[4]  Available country information also indicates that thousands of Bangladeshis enter and leave their country every day and people who return there voluntarily or involuntarily are unlikely to face adverse attention (and that would include failed asylum seekers).[5]  The Tribunal put to the applicant that in the light of this country information the risk of him suffering serious harm because he left Bangladesh illegally, came to Australia and sought asylum was remote.  In response, the applicant said that he did not know about these matters.  He said that the only ground on which he is afraid to return to Bangladesh is his fear of the Awami League because of his and his [brother]’s involvement with the BNP and the harm that he claims ensued from that involvement.

    [4] DFAT Country Report Bangladesh 20 October 2014 at 5.28.

    [5] DFAT Country Report Bangladesh 20 October 2014 at 5.30.

11. For the reasons given above, the Tribunal disbelieves the applicant’s evidence about that.  Although country information indicates that the risk of serious harm for leaving Bangladesh illegally is remote and although the applicant did not claim to fear harm on the basis of leaving the country illegally, because he is not a witness of truth, the Tribunal finds that it has no credible evidence as to the manner in which the applicant departed from Bangladesh.  At the interview with the delegate, the representative submitted that the Awami League committed abuses and, in the decision to refuse the application, the delegate set out country information about political violence in Bangladesh.

12. The Tribunal has no credible evidence that the applicant was involved with any political party in Bangladesh and the risk of him suffering serious harm due to political violence is remote.  His claims that he is of adverse interest to the Awami League are not credible.  By letter dated [in] November 2014 the representative made submissions to the effect that the documents the applicant produced from Bangladesh regarding his identity were genuine.[6] The Tribunal does not take issue with that statement but documents regarding his identity do not corroborate his protection claims which the Tribunal finds to be false.  In this letter, the representative also referred to the prevalence of corruption in Bangladesh but there is no credible evidence that the applicant suffered harm in Bangladesh on that ground.

    [6] This was in reference to the ‘nationality / character’ certificate at folio 23 of the department file.

13. The Tribunal has also considered that information in the light of the claim the representative made to the delegate about officials on arrival or in the applicant’s local area believing that he went to Australia for economic reasons and so trying to extort money from him.  The Tribunal finds that claim highly speculative and not substantiated by any country information.  Contrary to the representative’s submission that there was no country information on the matter, the Tribunal’s source of country information is to the effect that returnees do not face adverse attention on their return to Bangladesh. The Tribunal understands that to include the risk of being the victim of corruption.  Accordingly, the Tribunal rejects this submission from the representative. 

14. For the sake of completeness, the Tribunal also records that at his interview with an officer of the department held in May 2013 applicant was asked whether he was in a particular social group to which he was recorded as saying he was in a [particular] club related to ‘political things’ and sports.  Because the applicant is not a witness of truth it disbelieves that claim.  For all of the reasons given above, the Tribunal finds that there is not a real chance that the applicant will suffer serious harm in Bangladesh and he does not hold a well founded fear of persecution based on any convention ground. 

    Complementary protection

15. With respect to the complementary protection criterion, for the same reasons the Tribunal finds that there is not a real chance that the applicant will suffer serious harm in Bangladesh, it also finds that there is not a real risk that he will suffer significant harm.  The Tribunal repeats its finding that the applicant is not a witness of truth and the account of events on which his protection claims are based is false.  There is no credible evidence that the applicant suffered harm in Bangladesh and there is no credible evidence that anyone in Bangladesh seeks to harm him.  There is no credible evidence as to why he left Bangladesh and why he does not want to return there.  In those circumstances, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to the receiving country, Bangladesh, there is a real risk that he will suffer significant harm.

    CONCLUSIONS

16. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

17. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

18. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

19. The Tribunal 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.    

    Paul Millar
    Member