1500177 (Refugee)

[2016] AATA 3816

1500177 (Refugee) [2016] AATA 3816 (28 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500177

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Frances Simmons

DATE:28 April 2016

PLACE OF DECISION:  Sydney

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

STATEMENT MADE ON 28 APRIL 2016 AT 5:07PM

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

APPLICATION FOR REVIEW

1. The applicant in this case is [an age] year old citizen of Bangladesh. [In] May 2013 he was granted an Australian [temporary] visa. He arrived in Australia [in] June 2013 travelling on a passport issued in his own name. He speaks Bengali and English. He applied for a protection visa [in] June 2014 and the delegate of the Minister for Immigration refused to grant the protection visa [in] December 2014. The delegate did not accept that the applicant’s claims were credible. 

2. The applicant claims that he fled Bangladesh because he was in danger from supporters of the ruling Awami League (AL). He claims that he has suffered physical and mental harm because of his political involvement with the Bangladesh Nationalist Party ( BNP) and that, when he was in Bangladesh, he was assaulted, harassed, threatened, and forced to quit various jobs because of pressure from AL activists. He claims that, if he returns to Bangladesh, he will be persecuted because of his involvement with the BNP.

3. The applicant appeared before the Tribunal on 19 April 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 issues in this case are whether there is a real chance that the applicant will suffer serious harm on return to Bangladesh for a Convention reason or whether 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 he will subject to significant harm.

   RELEVANT LAW

4. The criteria for a protection visa are set out in s.36 of the Migration Act 1958 (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

5. 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).

6. 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.

7. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

8. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

9. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

10. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

11. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

12. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

13. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

14. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

15. 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’).

16. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

17. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

18. 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. To the extent that it is relevant in assessing the applicant’s claims, I have had regard to the DFAT country information report on Bangladesh dated 20 October 2014.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. I have considered the evidence that the applicant has provided to the Department and the Tribunal.

    Application to the Department

    Written statement of claims

20. What follows is a summary of the eight page written statement which accompanied the applicant’s protection visa application.

21. The applicant was an activist of the BNP and he participated in ‘all activities’ against the AL. As a result, he was targeted by AL activists and their hooligans. His life was at risk.  After he was granted a [temporary] visa enabling him to travel to Australia, he left Bangladesh to save his life. After the AL came to power, BNP leaders and activists are being targeted, arrested and detained and many are abducted. He cannot return to Bangladesh as his life would be at risk. He suffered harm ‘physically and mentally’ as a result of his political connections with the BNP. This has affected his mental state. He was persecuted by AL thugs and authorities.

22. The applicant’s involvement in the BNP dates back to 2001, the year in which the BNP won power, when he was a student, and he joined Jatiyatabadi Chattra Dal, the student wing of BNP, in August 2001. He was a general member of the BNP. He used to participate in all activities of Chattra Dal and participated in their meetings and campaigns. When he was at college he was responsible for distributing leaflets, hanging posters etc. Eventually the applicant obtained the position of member of the executive committee of Jatiyotrabadi Chattra Dal, [his first] college branch. He worked among people in his area to increase the awareness of BNP politics, their goals and achievements.  He was admitted into [a second] college and he continued his activities in that college. After completing his studies in [that second] college he enrolled in [a third] college in 2006 and studied there until 2008. During that time the AL started a movement against the BNP government and, as an activist of Chattra Dal, he participated in BNP activities. He was also engaged in local student politics.

23. When the AL came to power they started to target the BNP leaders and workers. The applicant was known to everyone in his area, including AL thugs, for his involvement in BNP politics for a long time. During that time he was studying a [course] in [subject] in [a fourth college]. At that time he was away from politics for a while for the safety of his life and a career. When he completed his degree in [subject], he obtained a job at a [workplace]. He was forced to leave this job due to ‘conflicting situations with a few AL activists in [the workplace]’. He was doing well at another job at a NGO until AL activists acted against him and management forced him to leave. He commenced employment as [an Occupation 1] in January 2013 but his political opponents did not leave him alone. He faced threats every day from AL activists within and outside the organisation. He was physically abused a few times prior to his departure from Bangladesh.

24. The applicant was encouraged by his fellow political activists to join Jatiyabadi Jubo Dal and he participated in Jatiyatabadi Jubo Dal [Location 1] branch in August 2010. He names the president of the Branch and claims that he participated in all activities of the BNP at his instruction. As a local leader of Jubo Dal, he was involved in promoting the agenda of the BNP to people in his area. He helped the BNP by organising meetings, demonstrations, distributing leaflets and encouraging people in his area to participate in anti-government protests movements and hartals. Activists of the AL warned him a few times not to participate in any anti-government activities. Because of his strong belief and commitments to the principles of his party, he never paid attention. He was verbally and physically assaulted by the AL thugs a few times.

25. [In] October 2012 he was returning home from work when a group of AL thugs stopped him and threatened to kill him if he continued his participation in anti-government activities. [In] December 2012 he was coming home from a meeting held in Chittagong city with some of his fellow political activists when a group of people attacked them. The applicant and other activists were ‘severely injured’. He was absent from work for a few days. After his release from hospital he returned to work. He had to respond to the direction of the party. When the BNP was organising movements against the AL government, claiming election under caretaker government he had to participate in the movement. The BNP organised a meeting in June 2012 in [a location in] Chittagong. The applicant was among a group of BNP supporters who were attacked by a group of AL thugs on the way to the meeting. He was treated by local doctor at the time. After a few days he recovered from the injury.

26. In the meantime the AL government declared that the forthcoming parliamentary election will not be held under a caretaker government. As a result, the BNP instructed him to act against the AL to oust them from power. The AL activists tried to resist their activities. [In January] 2013 he was attacked by AL thugs again on his way to home from the party office. He was severely injured at that time and admitted to hospital before being released after a few days. His life was at risk and, after he brought this matter to the attention of his parents and the leaders of the BNP, they all advised him to leave Bangladesh

27. The applicant claims that, since AL came to power in 2009, BNP leaders and supporters have suffered discrimination in their everyday life. Many BNP leaders and workers are being arrested, abducted, detained and targeted by members of the police and AL activists. The AL held a fake election in January 2014. The BNP did not participate in the election in protest and the AL came to power. Since that time BNP leaders and workers have been targeted. Fellow activists have suffered discrimination. His family members are also living in fear.

28. In Australia he is safe and he has found employment. However, he has continued his relationship with his party. He has come to know from his family members and fellow political activists that AL thugs have been looking for him and come to his home a few times in search of him. He will be in danger if he returns to Bangladesh. He has been warned by family and friends not to go back at this stage. He fears that he will be targeted as part of a government crackdown on people active against them.

    Interview with the delegate and the delegate’s decision

29. The applicant was interviewed about his claims by the delegate [in] December 2014. The interview was conducted in English. I have listened to an audio recording of this interview. During the interview the applicant reiterated his claims that he was a BNP supporter and that he joined the BNP as a student. The delegate’s decision records that the delegate did not accept that the applicant is a member or supporter of the BNP in Bangladesh. The delegate noted that, even if it were accepted that the applicant was a supporter of the BNP, the delegate was of the view that he was a rank and file supporter with no profile. The delegate did not accept that the applicant was ever attacked by supporters of the AL, or anyone else, on account of his political opinion. The delegate was concerned by the applicant’s delay in applying for a protection visa after he arrived in Australia. The delegate also considered the applicant’s delay in departing Bangladesh after the grant of his Australian visa was an indication that he did not fear for his safety.  The delegate refused to grant the applicant a protection visa.

    Application for review

30. The applicant provided a copy of the delegate’s decision with his application for review.

31. At the hearing the applicant provided the following documents:

    a.   A statutory declaration dated 15 April 2016 which can be summarised as follows:

    i.The statement attached to his protection visa application was true.

    ii.His thoughts were scattered at the interview with the delegate.

    iii.He has been through a lot and is suffering from trauma.

    iv.If further documents are required from his party in Bangladesh, he could provide them.

    v.The political situation in Bangladesh is unstable and it would be very risky for him to return.

    b.   Submissions in support of his application, dated 15 April 2016, which essentially reiterate, with minor variations, his written claims for protection and provide comments about why he travelled to Australia, the timing of his departure from Bangladesh and the timing of his application for a protection visa.  Annexed to the submissions are:

    i.A letter stating he was an honest and active member of the party. The letterhead, which is in Bengali, is apparently from the BNP youth wing. The letter is dated [in] October 2015 and the signature is illegible.

    ii.A discharge certificate from a hospital in Bangladesh which indicates that the applicant was hospitalised [in] January 2013 and had a CT scan and two x-rays.  Some of the handwriting is illegible.

32. The applicant confirmed that he spoke English and Bengali. He understands the documents which he has submitted. I note that the applicant’s evidence indicates that the written submissions were prepared with the assistance of a lawyer by the name of [Mr A]. I noted he didn’t have a migration agent representing him before the Tribunal, and asked if he knew whether [Mr A] was a registered a migration agent. The applicant stated he was not paying [Mr A], who he said was well known to him.

33. The applicant also presented a new passport which he obtained in [2015] in Australia. He had no problems getting this passport.

34. When asked where he was living before he left Bangladesh, he gave evidence he was living in [Location 1] in Chittagong with his family: his parents and his siblings. His family are still living at this address. The applicant told the Tribunal that the last job he had before he left Bangladesh was [an Occupation 1]; he had this job for around six months. He said he was paid about [amount] takka a month (this is equivalent to roughly [amount] Australian dollars).  Since arriving in Australia he has found work here. Previously, when he was in Bangladesh, he also had a job at an NGO and a [workplace].

1. During the hearing the applicant was asked about his claims for protection. He reiterated that he ‘was in trouble because of his political opinion’ and that he hoped he would remain in politics and help the people; but this didn’t happen. He told the Tribunal that he was afraid that those who supported the AL would kill him. When asked whether he was a member of the BNP, he said that he joined the Jubo Dal in 2010. He gave evidence that he joined the student wing of the BNP (the Chhatra Dal) in 2001 and his problems began around 2010 after he became involved in the youth wing of the party, the Jubo Dal.

2. During the hearing I put to the applicant that I had doubts about whether he was ever a BNP activist and that he would be motivated to be active in support of the BNP if he returned to Bangladesh. Where relevant, the applicant’s evidence is discussed further below in the Assessment of Claims and Evidence. During the hearing, the applicant was also advised that I understood that he was claiming that he would be harmed by supporters of the AL if he returned to Bangladesh because of his support for the BNP. He was asked whether there were other reasons that he was afraid of returning to Bangladesh. He was replied no, just the political reason.

   ASSESSMENT OF CLAIMS AND EVIDENCE

3. On the evidence before me, I accept that the applicant is a national of Bangladesh. Therefore for the purposes of s.36(2)(a) I accept that Bangladesh is the country of nationality and for the purposes of s.36(2)(aa) I accept that Bangladesh is the receiving country.

   Credibility assessment

4. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters.  In assessing the credibility of the applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims and I have had regard to the guidance provided by the UNHCR about this issue. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[1]  However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]

   [1] MIMA v Rajalingam (1999) 93 FCR 220

   [2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547

5. The Tribunal has issued guidelines on the assessment of credibility in protection visa cases, which state, in part:

   … The rejection of some of the evidence on account of a lack of credibility may not lead to a rejection of an applicant’s claim for a protection visa. For example, when assessing an applicant’s claims as to whether they meet the definition of refugee, if an applicant is disbelieved as to his or her claims, the tribunal must still consider whether, on any other basis asserted, a well-founded fear of persecution exists. However, the tribunal does not need rebutting evidence before it can lawfully find that a particular factual assertion made by an applicant is not made out.

   The tribunal considers all the material before it and is not restricted to claims and evidence considered by the primary decision-maker. If the review applicant raises new claims or presents material for the first time to the tribunal, the tribunal will consider the credibility of what has been provided, including any reasons for why it was not provided earlier in the application process. There may be good reasons why new information or claims are presented by applicants at a later stage in the application process. These reasons may include stress, anxiety, inadequate immigration advice and uncertainty about the relevance of certain information to an applicant’s claims [footnotes omitted].

6. For all the reasons that follow, I do not accept that the applicant is a credible witness. I do not accept that the applicant was ever actively involved in the BNP as claimed. I do not accept that he was ever a member or supporter of the BNP as claimed or that left Bangladesh in 2013 because he had been targeted by members of the AL because of his involvement in the BNP. In summary, the applicant’s evidence about his involvement in political activism was vague and, in some respects, lacked the same detail as his written claims. Nor did I find persuasive his evidence about his involvement in political activism and his evidence about BNP’s performance in his local area in the 2008 national elections was confused and contradictory. Also troubling: inconsistencies between his written claims and his oral evidence to the Tribunal, the timing of his departure from Bangladesh, and his failure to reasonably account for his delay – of almost a year – in applying for protection. My concerns are set out in detail below. 

7. I acknowledge that the political environment in Bangladesh is volatile and often violent. Following the violent and widely criticised 2014 election, which was boycotted by the BNP, Bangladesh has headed in an ‘authoritarian direction’. [3] In October 2014 DFAT has reported that opposition party members who are engaged in protest face a low risk of being arrested, although opposition leaders or members with high profile may face a higher risk of arrest when engaged in political protests.[4] In August 2015 a Bangladeshi ‘national legal aid and human rights organization’, Ain o Salish Kendra (ASK), reported:

   Political tension and violent acts continued in the early days of 2015. From 6 January 2015 there had been non-stop blockades all over the country by Bangladesh Nationalist Party (BNP) led 20-party alliance and continued till the second week of April 2015. According to estimates by newspapers, during the 55 days of blockades (until 1 March 2015) 60 persons have been killed in petrol bombs and fire. No one including women, children and the elderly have been spared from bomb and cocktail attacks and there were cases where vehicle fleets under police protection have come under attack, people have been burnt near the police station, and cars have been burnt in front of the police. But only in a very few cases the police were able to catch these miscreants red-handed.[5]

   [3] Human Rights Watch, World Report 2016, Bangladesh, < >

   [4] DFAT Country Report - Bangladesh, 20 October 2014, [3.55].

   [5] Ain o Salish Kendra (ASK) 2015, ‘Bangladesh: Failing to Fulfil Its Commitments’ < [119-138] at [124] at ‘1.3 General Human Rights Situation in 2015’, in The Asian NGO Network on National Human Rights Institutions (ANNI) 2015, 2015 ANNI Report on the Performance and Establishment of National Human Rights Institutions in Asia (Bangkok: Asian Forum for Human Rights and Development (FORUM-ASIA) Secretariat of ANNI, 31 August 2015 [document created 18 September 2015]) < <CISNET Library CISEC96CF13376>.

8. Both the BNP and the AL have active student wings (Jatiyatabadi Chhatra Dal for BNP and Bangladesh Chhatra League for the AL), whose members are often implicated in violent attacks and clashes.[6]  However, as I discussed with the applicant at the hearing, with respect to the situation of supporters and members of members of the BNP, DFAT considers:

   supporters or members of political parties in Bangladesh are not at risk of being arrested or living in fear of violence on a day-to-day basis due to their political affiliations... Opposition party members engaged in protests face a low risk of being arrested.[7]

   [6] Human Rights Watch, Democracy in the Crossfire: Opposition Violence and Government Abuses in the 2014 Pre- and Post- Election Period in Bangladesh, April 2014.

   [7] DFAT Country Report - Bangladesh, 20 October 2014, p.23, paragraph 3.55.

9. At the hearing I put to the applicant that it was not clear from his evidence why AL supporters would want to target him in such an aggressive and sustained manner.  The applicant responded that he personally tried to get people involved in protesting activities. He said that he did many things so that the local people can engage in protesting against the government and this was not acceptable to his opponents. He also gave evidence that no-one is safe from the grass roots level up to the chairman of the party. If he went back, they would attack him or kill him because the general situation has been deteriorating. Everyone who is trying to organise a meeting or a protest is being arrested or sometimes killed. He claimed that the situation in Bangladesh was extremely bad – people were being arrested, murdered and raped and the AL are staying in power by force -- and did not permit him to return.

10. I acknowledge that BNP leaders and activists in Bangladesh operate in fraught and, often dangerous environment. However, for all the reasons that follow, I consider that the applicant’s claims that he was active in support of the BNP (including by attending protests or processions or organising people to join BNP processions or meetings or as a position holder or [other position] for the BNP student groups) lack credibility.

11. Despite telling the Tribunal that he voted for the BNP in 2008 national elections, the applicant’s evidence about what constituency he voted in and which candidate was ultimately successful was confused and contradictory, and I became concerned that the applicant was changing his evidence in an attempt to respond to the Tribunal’s concerns. After initially telling the applicant that he voted in [Constituency 1], when asked who he voted for he said the BNP candidate. When asked if he remembered the BNP candidate, he told the Tribunal he voted in [Constituency 2], not [Constituency 1]. He said that he had said [Constituency 1] earlier because his union council[8] used to be included in [Constituency 1] but then it was added to [Constituency 2]. When asked who he voted for in [Constituency 2], he named a candidate with the surname [name]. He told the Tribunal that the AL was successful in [Constituency 2] but he then said another candidate from [another party], who he named, won. The applicant confirmed a [member of the other party] was elected from [Constituency 2] in 2008. It was put to him that the BNP [candidate] was the successful candidate in [Constituency 2] in 2008. [9]  The applicant questioned whether this person participated in the 2008 elections and I put to him that, according to amardesh online, the BNP [candidate] was the successful candidate in [Constituency 2] in 2008. The applicant then said he was in [Constituency 3]. It happened eight years ago.

    [8] Union councils are local government units in Bangladesh

    [9] [Information deleted].

12. I put to the applicant that, if he was a BNP supporter, and he voted for the BNP candidate, he might remember who the BNP candidate was. He said it was complex. He referred to being in [Constituency 1] and then [Constituency 3]. He claimed that because of the long time that had passed, he forgets whether [Constituency 1] was added to [2 or 3]. I noted that he had said that a BNP candidate was a person by the name of [name] in [Constituency 2]. He said the correct name, but he made a mistake with the number: the name was ok – this person was a candidate in [Constituency 3]. The Tribunal notes that the successful candidate in [Constituency 3] was [name], of the [other party]. [10]  When asked if he recalled who was the current Member of Parliament in [Constituency 3], he said yes. Asked who, there was a pause and he asked for a little bit of time as he was trying to remember. He then named a person but, as I put to him, the name he provided was differed from the country information I had, which was that the current Member of Parliament [Constituency 3] was a [different name].[11] The applicant’s evidence shifted again and he claimed that now he was in [Constituency 1], having previously been in [Constituency 3] in 2008.

    [10] [Information deleted].

    [11] [Information deleted].

13. I acknowledge that the 2008 elections occurred some time ago and it can be difficult to remember details from years ago and that is possible that constituency borders may shift over time. However, I was concerned by the way the applicant’s evidence about which constituency he voted in changed multiple times over the course of the hearing and I have difficulty accepting that if the applicant was actively involved in the BNP as he has claimed that his evidence about where he voted and what candidate was successful in his constituency in the 2008 national elections would be so confused. Overall, I do not accept that the applicant has adequately explained his confused and contradictory evidence about what constituency he voted for in the 2008 national elections and which candidate was successful in his area. I consider that his confused and unconvincing evidence casts doubt upon his claim to be a politically active person who voted for, and supported the BNP, in the 2008 national elections. Further, I consider that the way the applicant’s evidence changed in response to the Tribunal’s concerns suggests that he is prepared to shift his evidence in response to the Tribunal’s concerns. This raises questions about his reliability as witness.

14. I did not find the applicant’s evidence about his involvement in the BNP to be otherwise persuasive. The applicant was able to recall when the BNP lost power in 2006 and that the AL came to power following national elections, in 2008, and that the BNP boycotted the most recent national elections, held on 5 January 2014. He could describe the BNP flag. However, overall I found his evidence about his involvement in the BNP lacked persuasive detail. For example, when asked whether he ever had any special position or role in BNP or whether he was a supporter, he claimed he was an executive member. Asked, what this meant practically, he said that he was in the committee like the president and the secretary. When asked what he actually did in this role, he said that he would talk about organising rallies and what matters needed to be [raised]. When asked how he supported the BNP in 2008 when the national elections occurred, the applicant said while he was [studying] he was involved in BNP politics.  He was asked again what he did to support the BNP in 2008 when the national elections occurred. I noted that political activists normally support their parties around such times and I asked whether he did anything (other than vote) for the BNP in 2008 national elections. The applicant said he voted, he asked other people to vote, he participated in rallies and meetings and he put posters on the walls. However, as noted above, his evidence about where he voted and what candidate was successful in his constituency in Chittagong was confused and contradictory. When asked how many seats the BNP won in 2008 election, he said less than 50, maybe 39. The Tribunal noted the BNP won 30 seats.[12]

    [12] >

    I was also concerned that aspects of the applicant’s evidence were inconsistent with his written claims and that, in certain respects, his oral evidence lacked the same detail as his written claims. For example, when asked how many times he needed medical treatment for injuries he sustained as a result of being assaulted by supporters of the AL the applicant said that this had occurred two or three times. Asked to clarify whether he needed medical treatment on two or three occasions, he indicated he was unsure and could not remember exactly.  Asked about the first time on which he needed to get medical treatment as a result of being assaulted by supporters of AL, he said December 2012, and then recounted an incident that he said occurred between October and December 2012 in which he was beaten when there was a clash between BNP supporters and AL supporters when they were going to a rally at a venue, which he named, in Chittagong. After discussing the injuries the applicant sustained in this incident (he said they were ‘not much’ – he received a pain killers and a bandage from a local physician), the applicant was asked about the events which he claims led to his hospitalisation [in] January 2013.  The applicant’s evidence about where he was coming from when he was attacked by AL supporters (he said that he was on his way home from work), was, as I put to him, different from his written claims in which he said he was attacked on the way home from the ‘party office’. He responded by saying that there are three incidents, it could be the middle one. I put to him that I thought he had been referring to the incident [in] January 2013, and he responded that he thought that he was referring to the previous incident.

15. In my assessment, the applicant’s evidence about the problems he has had at work because of his claimed involvement in the BNP shifted over the course of the hearing and I became concerned that the applicant was struggling to recall events that are mentioned in his written testimony but which never actually happened to him. At the hearing the applicant reiterated, in general terms, his claims that he had problems at work because of his involvement with the BNP. He complained the manager of a [workplace] where he was working giving his larger workloads than other colleagues and of being teased.  Asked whether he had any other problems at work because of his involvement with the BNP, he said that he was under mental pressure and this is why he had to change jobs one after another. He also referred to resigning from a job because the manager was strongly involved in the AL and somehow he had got the information that the applicant was involved the BNP. When asked whether he had to quit the last job he had in Bangladesh, which was as [an Occupation 1], he said that when he got the Australian visa, he decided to give up the job, it was not for any political reason and he confirmed that he did not have to quit his last job because of his political reasons.   I noted that, in his written submissions, it says that he worked as a [Occupation 1] and he was forced to give that job up due to political reasons. I put to him that he told the Tribunal  he worked as [an Occupation 1] for six months before he left Bangladesh and he had earlier given evidence that he didn’t have to leave his job as [an Occupation 1] for political reasons although he had problems  at other jobs for political reasons. He said this is correct. He was asked about the reference in his written submissions to giving up his job as [an Occupation 1] for political reasons. The applicant’s evidence then shifted and he gave evidence that he was having trouble travelling to and from his place of work because people threatened him on the way.  

16. Furthermore, the timing of the applicant’s departure from Bangladesh casts doubt on his claims that he fled Bangladesh to avoid persecution, and his evidence in response to the Tribunal’s concerns about this issue lacked plausibility. As I put to the applicant, he was granted a [temporary] [in] May 2013, but he remained in Bangladesh for some time, because he did not arrive in Australia until [a date in] June 2013. I asked why, if he felt his life was in danger, he did not leave Bangladesh as soon as he got his Australian visa. The applicant said that after the injury which he received, he was mentally upset and he did not have the courage to make movements like purchasing tickets. He also received threats that, if they found him, they would attack him. He said that, somehow, they became aware he had obtained an Australian visa, so their intention was to stop his departure from the country.

1. However, I found the applicant’s evidence that AL supporters wanted to stop him leaving Bangladesh improbable and unconvincing. I asked the applicant why, if he was their political opponent, the AL supporters would have wanted to stop him leaving country. He responded that they preferred killing people, to letting people out. However, as I put to him, it is also difficult to understand why, if people were threatening to harm – even kill –him that he would not have wanted to leave the country as quickly as possible, particularly as his protection visa application indicates that he always lived at the same address. He responded by referring to having lived in different places while he was studying. I reminded him that he told me that, before he left Bangladesh, he was living with his parents and siblings. I noted that he told me that the supporters of AL didn’t just want him to leave the country, they wanted to harm him. He said yes, they would prefer to kill him or injure him, they didn’t like him going to Australia as Australia is a developed country.

2. I note that, in the written submissions which were submitted to the Tribunal, the applicant said that he came to Australia more than a month after his visa granted. He states that, after his visa was granted he was ‘ready to come to Australia’, but it took some time to arrange his finances as he ‘was forced to leave job several times … and was not able to save a lot of money due to that situation’.  This explanation for the time that elapsed between the grant of his [temporary] visa and his travel to Australia is different from the explanation provided at the Tribunal hearing. I do not find either explanation to be credible.

3. I have formed the view that the applicant is a person who is willing to embroider and change his evidence in an attempt to respond to the Tribunal’s concerns.  For example, towards the end of the hearing the applicant was asked when the supporters of the AL found out where he lived and he told the Tribunal they lived in the same locality and so they knew where he lived, and most of the threats which he received were from people who lived in his locality.  I put to the applicant that it seemed rather strange that the AL supporters knew where he lived when he was in Bangladesh and they wanted to harm him and stop him leaving the country, they never actually went to his house in Bangladesh. The applicant then said that he was not staying in his home for a month -- after obtaining a visa he moved into another place. Asked whether he had ever said this before, he gave evidence that he had not. I do not accept that the applicant moved residence after he obtained an Australian visa and so avoided the AL supporters. I find his evidence to the tribunal about this issue contradicts his earlier evidence to the Tribunal that he was living with his family before he left Bangladesh.

4. I did not find the applicant’s evidence that AL supporters had visited his family home looking for him to be persuasive. When asked when the AL supporters went to his family home in search of him, he said that he couldn’t remember the dates they visited his home. He estimated that they visited his family home roughly one and half months after his departure date and then again five or six months after he had left the country. He said that they were not aware that he had left the country. They couldn’t see him and so they were interested and they went to find out where he was. Asked how many times they had been to his family home since he left country, he said probably twice. It was noted that he had previously indicated that the AL supporters had somehow become aware that he had an Australian visa and he was asked whether he thought the AL supporters might have put two and two together and assumed that he left the country. He responded that because they were watching whether he was leaving his home, they couldn’t see him for a long time and after that they decided to check by going into his home.

5. According to his written statement, the applicant’s family is living in fear but, on the evidence before me, I am not satisfied that this is the case. At the start of the hearing, when asked if there was any new information he wanted to provide, the applicant stated that his [brother] is being tortured, they are looking for the applicant and coming to his family members and asking where he is. He stated that his [brother] was tortured or assaulted. Asked who assaulted his [brother], he then said he was not assaulted but he had received threats. I observed that the torture had a particular meaning to the Tribunal and I asked what he meant when he said his brother was tortured.  He said the present situation is serious for him and his family and it existed because of his involvement in the BNP. When asked if his brother had been physically harmed, he said no. When it was put to him that it didn’t sound like his brother had been tortured, he said that he had been verbally tortured, he had been threatened. Later in the hearing, the applicant reiterated his claims that his [brother] had been threatened. He also claimed that once, his brother was picked up by the police. When asked what this had to do with him, he said those were his opponents acting against him and the police are in favour of the AL. However, as I put to the applicant, on one view the fact that his family members remain living at his family home suggests that they are not experiencing any difficulties living there. The applicant replied that his family were not facing much difficulty but they were being threatened because of his involvement in politics. However, for all the reasons above, I have significant concerns about the credibility of the applicant’s claims that he was a BNP activist and, on the evidence before me, I am not persuaded that his family members have ever been threatened as claimed.  

6. My concerns about the credibility of the applicant’s claims are reinforced by the fact that he did not apply for a protection visa until almost a year after he first arrived in Australia. Before the delegate, the applicant addressed his delay in applying for a protection visa by saying that initially he wanted to return to Bangladesh, but the situation with BNP supporters was deteriorating on a daily basis. As I put to the applicant, he arrived in Australia [in] June 2013 but he did not apply for a protection visa until [June] 2014. When he was asked why, if he was afraid of being targeted by the AL, he did not apply for a protection visa at an earlier point in time, he sought to explain his delay in applying for protection by stating that he was waiting to see the outcome of the elections and if BNP came to power he would return. I note that, as these elections occurred in January 2014, this still does not adequately explain why he waited until June 2014 to apply for a protection visa. This explanation also differs somewhat the explanation he provided in written submissions to Tribunal, in which he states that he was ready to go back to Bangladesh, but he was warned

   by my peers in the political group and my family members that the Awami thugs are in search of me to cause damage they always keep an eye on my family to cause significant damage to my family. So I changed my mind and decided to seek protection from the Australian Government and that [is] the reason I couldn’t lode my refugee application after my arrival.

7. I am not persuaded by any of the explanations that the applicant has provided for his delay in applying for a protection visa. I do not accept that he has adequately explained why he did not apply for a protection visa at an earlier point in time.

8. I do not accept that the applicant’s case is assisted by the documentation he submitted to the Tribunal. At the hearing I asked the applicant why he did not provide the letter concerning his involvement to the BNP and the hospital discharge certificate to the Department. He responded that, when he came to Australia he tried to communicate with the leaders at the BNP office he used to go to but, at that time, many of them were in jail or in hiding and the office was locked up for a period of time due to pressure from AL. Asked whether the situation had improved by October 2015 (the date of the letter), the applicant said overall the situation has not improved but he was able to communicate with a person who was released from jail. I put to the applicant I couldn’t see the name of the person who signed the letter and I passed it to the interpreter (noting the name might be in Bengali). The interpreter advised there is no name, only a reference to a BNP [office bearer] Jatioyabidal in Chittagong. At the hearing the applicant advised that when he went to hospital [in] January 2013 he had a CT scan and x-rays. He advised that he did not have any broken bones. So far as the writing on the hospital discharge form is legible, it is consistent with his oral evidence. However, as I put to him, even if it were accepted that he was in hospital, it was not clear from the discharge certificate why he was in hospital. He replied that he was injured and he went to the hospital.

9. In my assessment, the documentation which the applicant has provided does not overcome my significant concerns about the credibility of his claims. As I put to the applicant, the country information which is available to the Tribunal indicates that fraudulent documentation is easy to obtain in Bangladesh. [13] In these circumstances, I consider that the documents he has submitted to the Tribunal can be given little weight. The applicant has maintained the documents he has provided are genuine. However, having regard to the available country information and the timing of the production of the documents, I give the documents little weight. The documents do not overcome my significant concerns about the credibility of his claims.

   [13] DFAT Country Report - Bangladesh, 20 October 2014, p.23-24; see also Canada: Immigration and Refugee Board of Canada, Bangladesh: Reports of fraudulent documents (2011-2015), 20 August 2015, BGD105263.E, available at: >

   For all the reasons that are set out above, I have reached the conclusion that the applicant’s claims are not credible. I am not satisfied that he was ever actively involved in the BNP as claimed and, because I do not accept that he is now, or was ever a BNP activist or supporter, I do not accept that he was ever targeted by supporters of the AL as claimed. I do not accept that he was involved in the Chattra Dal or the Jubo Dal or that he ever held any position in the youth or student wings of the BNP or that he was ever a member or supporter of the BNP as claimed. I do not accept that he ever participated in meetings of the BNP (including its student wing), rallies, protests and other public political activity. I do not accept that the applicant has maintained relationships with BNP party members in Bangladesh while in Australia because I do not accept these relationships exist. On the evidence before me, I do not accept that the applicant was a supporter of the BNP when he was in Bangladesh and I reject, in their entirety, his claims to have experienced harm in the past for this reason. For the reasons set out above, I do not accept that he was ever an active BNP member, as claimed, and I do not accept that he would be motivated to be active in support of the BNP if he returned to Bangladesh now, or in the reasonably foreseeable future. 

10. On the evidence before me, and having regard to my assessment of the applicant’s credibility, I do not accept that he is of any adverse interest to members of the AL or to the authorities or to any other persons or groups in Bangladesh because of his political involvement in the BNP.  Because I do not accept that the applicant was a BNP activist, I do not accept that he was ever forced to resign from any job which he held because of pressure from AL activists or because he was involved in the BNP or for a combination of these reasons. I do not accept that the applicant was ever threatened, assaulted, attacked by AL activists as claimed. Specifically, I do not accept that he was threatened by AL supporters [in] October 2012, or assaulted by AL supporters [in] December 2012 or June 2012, or attacked by AL supporters [in] January 2013 or that he ever moved house to avoid threats from the AL. While it is possible the applicant may have been hospitalised [in] January 2013, on the evidence before me, I am not prepared to accept that he was hospitalised because he was attacked and assaulted by AL supporters. 

11. Because I do not accept that the applicant ever attracted the adverse attention of AL supporters, I do not accept that AL supporters have ever visited his family home looking for him, or that his family have been harassed or threatened to reveal his whereabouts, or that his [brother] has been targeted or mistreated in any way because of the applicant’s claimed involvement with the BNP or that his family has been monitored or threatened. While it is possible that his brother may have had an encounter with the police, on the evidence before me, I do not accept that such an event was linked in any way to the applicant’s claimed political profile. I do not accept the applicant was ever a BNP activist of any type and I reject in their entirety his claims that the AL have targeted him, and his claims that the AL supporters have visited his family home and threatened his family members.

12. On the evidence before me and, having regard to my findings of fact, I do not accept that there is real chance that the applicant will face serious harm for the reasons he has claimed. I do not accept that he has a well-founded fear of being persecuted for his political opinion (actual or imputed) or any of the other Convention reasons if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act. Further, having regard to my findings of fact, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Bangladesh, there is a real risk that he will suffer significant harm for any of the reasons claimed.

    CONCLUSION

100. 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).

101. 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).

102. 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

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

Frances Simmons
Member