1500449 (Refugee)

[2016] AATA 3968

1500449 (Refugee) [2016] AATA 3968 (8 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500449

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Penelope Hunter

DATE:8 June 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 08 June 2016 at 9:21am

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

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

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

4. The applicant appeared before the Tribunal on 28 April 2016 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

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

   RELEVANT LAW

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

7. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

8. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

9. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

   Ministerial Direction

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    INFORMATION BEFORE THE TRIBUNAL

11. The Tribunal has before it a copy of the Department file, including his entry interview, a recording of his interview with the delegate, information submitted by the applicant, the information referred to in the delegate’s decision as well as a range of country information from other sources.

12. The applicant arrived in Australia by boat [in] May 2013. He did not have a passport and has presented to the Department a copy of his birth certificate and a letter from his Union Chairman as proof of his identity.  He states that he was born on [date], in [his home village], Comilla District, Bangladesh. He has never married and was educated up to year [number] and completed his schooling in [year].  In a statement accompany his application for protection he set out the following details about his claim for protection;

    • His family had a farm on which they grew [crops] and raised [animals].
    • He had his own business as a shopkeeper.
    • His brother was a member of the BNP and as a supporter he sometimes attended meetings. Additionally he encouraged people to vote for the BNP, he placed posters around the village and helped at party meetings and events. He supported the BNP as they helped the poor people in his village
    • His problems started 3 or 4 months before he left Bangladesh in March 2013. At the beginning of the year approximately 5 or 6 men came from the Awami League to his shop to extort [amount] taka from him. If he did not pay them he would be beaten or killed.  The applicant was given three days to come up with the money.
    • Two days later the men returned to the shop asking for money again. He called his brother to the shop and when he refused to pay the men beat the applicant and his brother.
    • They reported the incident to the village leader, who called everyone together and told the men it was not possible for the applicant to pay so much money.  The men did not accept the village leader’s advice.
    • The applicant sought advice from the village Chairman but he was not able to help them.
    • He departed Bangladesh [in] March 2013.
    • The applicant and his brother left their village. After the applicant left the Awami League members who he fought with came to his house asking his parents about his whereabouts.
    • The applicant has been told not to return to Bangladesh. He fears that he will be killed or seriously harmed as the criminals are Awami League members and he did not pay them.
    • The authorities in Bangladesh may protect him if he pays and they will not accept his complaint against the men as it involves Awami League members and they are in power.
    • He could not relocate as Awami League members are everywhere.

13. The applicant attended an interview with a delegate of the Minister [in] September 2014. The applicant has provided the Tribunal with a copy of the decision of the delegate. The Tribunal has listened to a copy of the recording of the applicant’s interview with the delegate and is satisfied that the decision of the delegate contains an accurate summary of the information provided by the applicant. In refusing the applicant’s claim for protection the delegate did not find the applicant to be a witness of truth and considered that he had fabricated his claims to enhance his prospects of success.

14. Prior to the hearing the agent for the applicant provided submissions dated 22 April 2016. It was submitted that the essential and significant reason for the applicant’s fear of persecution was because of his;

    Political Opinion

    ·The applicant was a BNP supporter and his brother was [a senior official] of the BNP in their village

    ·He would be targeted for extortion by the Awami League because of his brother’s support of the BNP and will be subject to physical harm for refusing to pay the extortion money

    Imputed Political Opinion

    ·The applicant, as a person of a wealthy family, will be targeted for persecution as a means to pressure the applicant and his family to join the Awami League.

    ·The applicant would be perceived as opposing the Awami League for refusing to pay the extortion money and refusing to join the Awami League.

15. At the hearing on 28 April 2016, the Tribunal discussed with the applicant his background, family, employment history, his political involvement with the BNP and his claims for protection. Where relevant the Tribunal has set out the information below.

    FINDINGS AND REASONS

16. On the basis of the applicant’s consistent information provided to the Department and the Tribunal about where he was born and citizenship of Bangladesh, and the copy of his birth certificate provided to the Department and Tribunal, the Tribunal finds that the applicant is a citizen of Bangladesh.  There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Bangladesh.  Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicant is a national of Bangladesh, the Tribunal also finds that Bangladesh is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

17. The applicant’s evidence on central aspects of his claims was variously vague, unsubstantiated, as well as often inconsistent with his earlier evidence. For reasons outlined below the Tribunal is not satisfied that critical aspects of the applicant’s claims are credible and finds that the decision should be affirmed

18. Firstly, the Tribunal is not satisfied as to the applicant’s claimed involvement with the BNP given his work commitments. The applicant has variously claimed that he was a store owner and that he worked in his family store. The Tribunal notes this discrepancy as consistent with the applicant’s general pattern of inflating his claims. It is however accepted that he worked in a store in Bangladesh. He claimed to be the main person who worked in the store and his brother worked occasionally. The store was open every day from 8 am to [late in the evening] except for Fridays [in specified afternoon hours] when it closed for prayer. The applicant also worked on his father’s farm. He would work on the farm after morning prayer at 6 am, then he would travel the distance by bike for [number] minutes to open the shop around 8 am. At times he would return home to the farm at lunch to do more work and if anything urgent happened he would shut up his shop for a short period. The applicant also claimed that he was able to assist his brother with the BNP sometimes twice a week.  In the Tribunal’s view it would not have been possible that the applicant provide the support he claimed for the BNP such as providing furniture for meetings, rallies and events, transporting people, distributing posters and talking to people about joining the party. The Tribunal does not consider plausible that the applicant be able to perform the jobs as a store owner, and running the family farm together we political involvement at the same time. It is also not credible that the applicant would provide support for the party in the form of talking and encouraging people to join the party and yet not be a member himself.

19. Secondly the Tribunal has difficulty accepting the applicant’s evidence about the claims of extortion. The applicant’s evidence as to the actual demands lacked any contextual detail. The applicant’s initial evidence about this matter, provided as a lengthy monologue without interruption from the Tribunal, glossed over important events and made no reference to any Awami League connection from the men attempting to extort money from the applicant. The manner of presentation of the evidence by the applicant appeared to be rehearsed and the Tribunal was not satisfied that the applicant was recalling events that he actually experienced. Also when discussing the attempts that he made to resolve the matter with the village leader and later the village chairman the applicant referred only to the monetary demands and any political demands or that the applicant and his brother change political parties.

20. Further to the claims of extortion, the applicant claimed that it was common for men to demand money from shopkeepers. However he also stated that his family was not initially concerned about the demand as this was the first time that such demands had been made at the store, although they had been operating the store for as long as the applicant could remember. The demand itself was considerably high, [amount] taka, from a shop that sold [specified products]. The applicant claimed that the threat was made by 15 to 20 men, and that they stayed in his store for roughly 10 minutes and only he was at the store. When questioned about the incident he only was able to provide a general description of events, even though he was asked directly what the men had said. Although the men were in his store for 10 minutes he recalled only a few lines of conversation and they lacked the detail expected of someone recalling a personal experience. In his entry interview of [May] 2013, the applicant set out that 6-7 men came to his store and that he called his brother who came and told the men that they would not give the money. When discrepancies with the entry interview were put to the applicant at the hearing it was suggested that the applicant’s comments may have been taken out of context. The Tribunal is not satisfied that the applicant was able to explain the many inconsistencies.

21. Also with respect to the claim of extortion, the Tribunal  has difficulties with the applicant’s evidence as to how his family reacted to the extortion attempt and proposed to deal with the matter. The applicant told the Tribunal that the threat was not taken seriously, although the men had given him some days to pay it was not intended to comply with the demand. As the matter was not taken seriously it was not reported to authorities and the applicant and his family did not seek any other assistance with the problem. The Tribunal finds this lack of care and planning implausible. Particularly when it is variously claimed by the applicant that the men were powerful, the consequences of the men returning for payment was violence, that threats were made to kill the applicant and that the applicant and his brother were forced to go into hiding.

22. Thirdly, the Tribunal considers unsatisfactory the inconsistencies and additions to the applicant’s evidence of the second visit from the Awami League men demanding money at the shop. The applicant has given inconsistent evidence about whether his brother was present at this time. It is recorded that at the time of his entry interview the applicant has stated that the men demanded the money within 2 days and that 2 days later when they came back his brother was at the shop and called the applicant. The applicant has changed the order of events and told the Tribunal that he was at the shop and called his brother. Further, that the men had given him 3 days to come up with the money and they came back within 2 days. When questioned further about this incident, the applicant told the Tribunal that his brother was at Comilla about [distance] away by bike. He claimed that the men just waited at the store for the applicant’s brother to come. When asked for further details about what the men said or what else happened during this period the applicant did not provide any further information to add contextual details and persuade the Tribunal that this event actually occurred. Instead he claimed that they moved out the front of the store and waited. Furthermore, if it was the original plan of the applicant not to pay the money and he had taken no steps to comply with the demands for extortion the Tribunal finds it difficult to understand why the men stood around and waited for his brother to appear. The applicant did not claim that he asked the men to wait for his brother. Whether the men had returned within 2 or 3 days on the applicant’s evidence his response was not going to change, it was not proposed to pay the money. Overall the Tribunal finds the applicant’s evidence as to what transpired implausible and this together with the initial discrepancies combine to reflect poorly on the reliability of the applicant’s evidence.

23. The Tribunal had to press the applicant for details of how the fight broke out with the men inside his store. As distinct from his written claims which lists 6 to 7 men, the applicant told the Tribunal 4 -5 men originally came to his store to demand monies. He also claimed that other Awami League men joined in and he and his brother were being assaulted by 10 to 15 men. The applicant told the Tribunal that he was punched in the face and back and that he continues to have [a specified symptom]. The applicant claimed that he had to have [specified treatment] by a medical professional. He claimed to have sought treatment from a medical professional at the bazaar where the store was situated after the attack and three days later attended hospital. His brother was also required to attend hospital for some stitches but did not stay overnight. Although the applicant had previously claimed he was beaten, this evidence to the Tribunal was the first occasion that the applicant had described physical injuries and the need for he and his brother to seek medical attention. The applicant’s explanation for this difference was that he had not specifically been asked questions about medical treatment. This ignored the central concern of the Tribunal that the applicant had not previously provided a description of experiencing harm in the manner he claimed at the Tribunal hearing. It is considered that if the applicant had previously experienced physical harm and required medical treatment as claimed he would have raised the matter from the first instance and certainly at the time of his statement of claims, particularly when the protection visa application forms ask about previous harm. This addition by the applicant further raised concerns about the credibility of his claims.

24. Fourthly, the Tribunal found the applicant’s claims about what happened following the assault at the store with the men of the Awami League inconsistent and contradictory. The applicant claimed that his father attended and told the men who assaulted the applicant and his brother that reconciliation was required. When asked for further details the applicant told the Tribunal that he rang his father after the incident and he came by auto rickshaw. The applicant was unable to satisfactorily explain why the men waited around for his father to arrive. Also the readiness to participate in a process of reconciliation with the village leader the Tribunal considers irreconcilable with the consistent claim that the Awami men intended to kill the applicant and his brother and that they both needed to flee and go into hiding. The applicant also provided only general details of what took place during the process of reconciliation with the village leader and the Chairmen. Again there was only a quick narrative of each event and no description of the discourse. Furthermore the discussion was only around one issue, that the applicant and his family could not afford to pay [amount] taka at once and the Awami men would not accept a smaller about. There was no detail about the applicant and his brother changing political allegiance which the applicant had earlier claimed would alleviate the need for payment. The Tribunal also found the applicant’s evidence as to whether the Awami men participated in discussions with the Chairman inconsistent. He suggested that they presented the same position to the Chairman, yet then applicant claimed that he was the only one who went to the Chairman. Once more the Tribunal did not accept the applicant’s evidence as to these incidents to be reliable or plausible.

1. Fifthly, the applicant told the Tribunal that he cannot return to Bangladesh because he did not pay the money demanded by the Awami League and had a fight and for this reason that they wish to kill him. It has been submitted that as he was a member of a wealthy family he was targeted. However no claims for payment have been made against his parents or his family. The applicant has claimed that this was because his parents were old and not involved in politics. The Tribunal does not accept this explanation as satisfactory, the applicant claimed that it was a family business, and also that his father instigated negotiations with the Awami League men to negotiate a lesser payment or staggered payment. The applicant reported that the Awami League men came looking for him at his parents, however the Tribunal considers that fact that no further monetary demands had been made upon his parents is inconsistent with his central claim that the Awami League will continue to pursue him because he did not pay them. As to the applicant fighting the Awami League men, it was his evidence that they attacked him and his brother.  The Tribunal have also considered the late claim by the applicant that when his brother returned from [another country] he was pulled out of a rickshaw because the applicant and his other brother supported the BNP.  This information was delivered almost as an afterthought by the applicant after the Tribunal asked him several times if anything happened to his family. The Tribunal is not satisfied as to the credibility of this claim and when considered with the totality of the applicant’s evidence finds it to be a further example of the applicant embellishing his evidence.

2. Sixthly, the applicant’s evidence has also varied as to whether he went into hiding with relatives or friends. In his entry interview he claimed he was staying at a friend’s house during the night. He told the delegate that he was staying with [Relative A]. The Tribunal did not find convincing the explanation of the applicant that it was both as he did not wish to be a burden on his family. His evidence as to his experiences has shifted.  The Tribunal considers that this reflects poorly on the applicant’s credibility and the reliability of his evidence.

3. Seventhly, also casting doubt on the credibility of the applicant’s claims is the different information that he has provided as to the fate of his brother. In his entry interview of [May] 2013, the applicant did not advise that his brother was missing. This is despite being clearly asked whether this was the case. Again, the Tribunal is mindful of the circumstances in which the entry interview took place, not long after the applicant’s arrival in Australia and it is acknowledged that a recording of the interview has not been provided by the Department. Yet the claim that his brother is missing is not a marginal or unimportant matter and is central to his claim to fear harm in Bangladesh. It is expected that the applicant would have advised that his brother was missing if directly asked. This further raises doubt as to the credibility of the applicant and his claims.

4. Eighthly, there is the delay in the claim by the applicant that his brother was a [senior official] of the BNP. This was a claim that was not raised by the applicant until his interview with the delegate. The position of his brother in the BNP is also not a marginal or unimportant matter, it is significant to his claim to have been persecuted by associates of the Awami League. The applicant’s explanation that he was not asked about the position of his party earlier on does not explain this omission. Particularly when at his entry interview the applicant was asked about his political involvement and that of his family and he describes both himself and his brother as only a supporter of the BNP.

5. The Tribunal questioned the applicant as to his BNP beliefs and activities. The applicant did not correctly recall the four main principles of the BNP. He listed honesty, to develop the country, make the country corruption free and to maintain a good relationship with foreign countries. The four principles listed by the party are to believe in Almighty Allah, Nationalism, Demoncracy and Socialism.[1] However it is acknowledged that he provided a general description of the BNP flag[2].  When asked about the attitude of the party to religion in politics he claimed that it was that everyone could practice their own religion and maintain peace in society. This is inconsistent with the central tenant of the BNP that it is the Islamic consciousness of the people and the manner in which it distinguishes itself from the secular Awami League. The Tribunal raised its concern about the applicant’s lack of more detailed knowledge of the BNP. In response the applicant told the Tribunal he spent most of his time running his shop.  Tribunal is concerned he was unable to provide any further detail about the policies or the principles of the party, given his claim to have been involved with the party for some time, attending meetings, events, organising rallies, encouraging people to join the party and vote and distributing information about the party. While the Tribunal does not expect the applicant to have a complete knowledge of the BNP Constitution and party structure, the Tribunal would expect someone in the applicant’s claimed circumstances, who has been interested in the BNP attended regular activities and whose brother was a [senior official], and who attended meetings, would have more detailed knowledge of the BNP than the applicant displayed during the hearing. The Tribunal does not accept that being busy in his shop explains this lack of knowledge. The Tribunal considers this reflects poorly on the applicant’s credibility and the reliability of his evidence and does not accept that he has the profile of a supporter as claimed.

   [1] >

   Considering the totality of the applicant’s evidence the Tribunal is not satisfied as to the reliability of his claims. The Tribunal does not accept that the applicant was subject to extortion from members of the Awami League, that he was ever pressured to join the Awami League or that he was ever assaulted as claimed. The Tribunal does not accept the applicant was of adverse interest to the Awami League or its members or supporters at the time he left Bangladesh. The Tribunal does not accept the applicant was or is of adverse interest to anyone in Bangladesh. The Tribunal does not accept that the applicant’s brother was the [senior official] of his local BNP branch, or a member or that he is missing and being pursued by the Awami League. The Tribunal does not accept that the applicant was targeted for persecution as a member of a wealthy family to join the Awami League or that the applicant was targeted at all.

6. The Tribunal accepts that the applicant may have supported the BNP in a minor way, however it is noted the recent DFAT Country Report for Bangladesh dated 20 October 2014 assesses that 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[3]. The Tribunal does not accept that the applicant has any political profile or has any imputed profile or that he will be targeted to join the Awami League because of his actual or perceived wealth or any other circumstance. The Tribunal does not accept that there is a real chance he would suffer serious harm for any of the reasons he has claimed

   [3] DFAT Country Report Bangladesh 20 October 2014", Department of Foreign Affairs and Trade, 20 October 2014, CIS2F827D91369

7. The Tribunal does not accept there is a real chance the applicant will be killed or suffer serious harm, or harm of any kind, if he returned to Bangladesh now or in the reasonably foreseeable future.

   Complementary protection

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

9. The Tribunal finds the applicant is not a witness of truth and it is not satisfied the critical aspects of the applicant’s claims are credible. The Tribunal does not accept that the applicant had the profile in the BNP as claimed or that he was anything more than a minor supporter of the BNP. It is not accepted that his brother is a [senior official] of the BNP. The Tribunal does not accept the applicant was approached and threatened and asked for money by Awami League members in his store or that he was assaulted and threatened together with his brother 2 days later. The Tribunal does not accept the applicant escaped and hid in a friend’s home or his [Relative A’s] home for three months, or that his shop was trashed or that his family was approached by Awami League members or supporters looking for the applicant at that time or at any time after. The Tribunal does not accept that the applicant has a profile that would put him at risk, or that his brother has a profile that would place him at risk, or that the applicant was targeted or would be targeted because he was from a wealthy family. It is not accepted that the Awami League members and supporters were looking for the applicant.

10. The Tribunal does not accept the applicant was of adverse interest to the Awami League or its members or supporters at the time he left Bangladesh. The Tribunal does not accept the applicant was or is of adverse interest to anyone in Bangladesh.

11. The Tribunal is not satisfied there is a real risk the applicant will be killed or suffer significant harm for any of the reasons he has claimed, if he were returned to Bangladesh, now or in the reasonably foreseeable future.

12. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subject to torture, or cruel or inhuman treatment or punishment; or subject to degrading treatment or punishment, if he is returned to Bangladesh, now or in the reasonably foreseeable future. 

13. Having considered the applicant’s circumstances individually and cumulatively, for the reasons set out above, 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 the applicant will suffer significant harm. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa) for a protection visa.

14. 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).

15. 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).

16. 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

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

    Penelope Hunter
    Member