1500721 (Refugee)

[2016] AATA 4135

1500721 (Refugee) [2016] AATA 4135 (13 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1500721

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Penelope Hunter

DATE:13 July 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 13 July 2016 at 4:47pm

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] August 2013 and the delegate refused to grant the visa [in] January 2015.

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, via videoconference, on 9 June 2016 to give evidence and present arguments. The Tribunal 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.

   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.

    EVIDENCE AND CLAIMS

11. The applicant arrived in Australia by boat [in] May 2013. In which he set out that he is a [age]-year-old male born on [date] in [village], [district], Bangladesh. Is the Muslim religion, single and his parents and siblings remain in Bangladesh. He claimed to have left Bangladesh [in] April 2013.

12. [In] June 2013 the applicant underwent an entry interview with an officer of the Department. When asked why he left his country of nationality the applicant claimed it was for political reasons. He used to work in [Town 1] and move around the villages and invite people to join the Jamaat.  One day in Dhaka, he was one of [number] people on the street, when suddenly people of a group dressed in white with pistols in hand chased them and filmed the pursuit on video. The pursuers shot [number] of the [persons] in his group. The applicant and [others] ran to a mosque. After a while they went into pray. Upon finishing prayers they left the mosque and they saw the group of pursuers waiting for them across the road. Armed with pistols this group again chased them and some of the applicant’s group members were apprehended. The applicant and [number] others climbed a tree, and remained there until 10 or 11 pm. When they were chasing the applicant he fled to Chittagong and hid in a jungle. The applicant did not know who these people were or why they attacked. The incident occurred [in] April 2013 and it was because of this incident that the applicant fled Bangladesh.

13. With the assistance of a migration agent, [in] August 2013, the applicant filed with the Department forms in support of his application for a Protection visa. In a statement accompanying these forms, he set out his claims as follows;

    (i)He will be harmed because of his political opinion as he is a strong member of the Jamaat group, a religious and political party in Bangladesh, and because of his religion as he has strong Islamic beliefs.

    (ii)He joined the group in 2004 because he supported their Islamic beliefs and values. His involvement included doing “tablic Jamaat” which means preaching about Islam and inviting others to join his group and discuss Islam.

    (iii)In 2009 when working in that capital [name] bazaar as a [occupation] he was threatened by some people who do not like the Jamaat. The applicant was told to leave the area or he would be harmed. He changed jobs and moved to [Town 1], Dhaka.

    (iv)In [Town 1] the applicant was regularly harassed and asked the money by a group of people. He would be stopped on the road when he was driving [to] and from work will stop he had to give them money and on a few occasion he did not he was shown a pistol. This continued until the applicant fled Bangladesh. He did not know where these people were from or whether they were associated with a political group.

    (v)In January 2013, the applicant returned to his home [village]. He was travelling on a bus when he noticed a man following him. He got off the bus to run away and the man continued to follow him talking on his phone. The man was joined by another number] men and they were throwing stones at him. The applicant fled to Dhaka and believes these people were targeting him because he was at a member of the Jamaat.

    (vi)In March 2013 the applicant was targeted on three occasions by of group of people with [certain appearance]. They looked distinctively like people involved in politics, however he did not know which group. When they beat him they would say things like ‘you have to stay in Dhaka and not come back to this village’. They also made comments about his support for the Jamaat, insisted that he stop his involvement with the Jamaat, and warned him that if he did not join them they would kill him.

    (vii)In April 2013 the applicant was targeted by [number] people in the street. They were dressed in white had pistols in their hands and were filming. The applicant was with [number] other Jamaat people. They tried to flee and were chased. One of his friends was shot. The applicant was with younger members of the group they hid inside [location] for a long time. When they came out however there pursuers were still waiting. The applicant climbed a tree and hid up there until late in the evening. Fearing for his safety the applicant fled to Chittagong and hid in the jungle. He contacted his mother and told her he could not remain in the country.

    (viii)Upon arriving in Australia the applicant contacted his mother who told him that people had been looking for him for a few days after he left Bangladesh. Then they were made aware he was not in the country and have not come back.

    (ix)The applicant fears he will be killed by the people who know him who are not members of the Jamaat. He suspects that they are members of another political group.

    (x)The authorities could not protect the applicant as he has asked police on many occasions that they have not been able or interested in protecting him.

14. The applicant underwent an interview with a delegate of Minister [in] October 2014. A copy of the delegate’s decision, dated [in] January 2015, has been submitted to the Tribunal by the applicant. The Tribunal has also listened to an audio recording of the interview and is satisfied the delegate has accurately recorded the information given by the applicant during the hearing. The applicant told the delegate that he was a supporter of Jamaat-e-Islami in Bangladesh. The delegate records that during the interview the applicant made a number of new claims including the following;

    (i)[Sibling 1] was involved an altercation and subsequently targeted with a false murder charge. His parents are currently negotiated with the impacted parties to have the charges withdrawn.

    (ii)His father was kidnapped by persons unknown and held overnight. The following day his father was returned home. He does not know who kidnapped his father or any reasons why his father might have been targeted.

    (iii)In 2013 the applicant was kidnapped by a group of [number] unknown persons they forced him to call his friend [Mr A] on a mobile phone. When [Mr A] agreed to meet the applicant, [Mr A] was also kidnapped. The applicant and [Mr A] were tied up, blindfolded and then driven to an unknown area in a bus. When the bus stopped and their kidnappers got off the bus and began drinking the applicant used opportunity to escape. He kicked out a rear window in the bus and escaped out the window.  He ran away and is unaware of what became of [Mr A].

    (iv)On one occasion some men got the police to walk over to the applicant and arrest him. Police then asked the applicant for money not to arrest him.

    (v)On one occasion when he was attacked, in order for the applicant to escape he got into a rickshaw. The men chasing him caught up to him and beat the rickshaw driver which allowed the applicant to get away.

    The delegate was not satisfied that the applicant’s claims of harm were credible, nor that the applicant was a member of Jamaat-e-Islami or associated in any official capacity with Jamaat-e-Islami.

15. In a submission to the Tribunal received on 6 June 2016, the agent for the applicant set out that he feared persecution given his support of Jamaat-e-Islami. He claimed protection on the Convention grounds of religion, political opinion and his membership of a particular social group, namely returnee from the West. It was also claimed that the applicant’s mother was kidnapped approximately a month earlier. The applicant’s father had received a couple of short phone calls from his mother stating she was in trouble and he had not been able to track her down. The applicant was fearful that given his ongoing involvement in Jamaat-e-Islami, he would be at risk of harm from opposing political groups in Bangladesh.  In relation to the new claims set out by the delegate, the applicant instructed that the delegate had misunderstood him and that he had never stated that he was kidnapped.  It was further submitted that the applicant’s claims of previous treatment of Bangladesh were credible examples of significant harm he had experienced in the past for the purposes of assessing his claims with respect to the complementary protection criterion in the Act.

16. At the hearing on a June 2016 the applicant gave evidence to the Tribunal that his migration agent prepared his application for a Protection visa based on his instructions. He stated that his instructions were true and correct and that he is satisfied that his visa application is accurate. The Tribunal discussed with the applicant his family, employment history, education, involvement with Jamaat-e-Islami and his claims. In summary the applicant told that the following incidents were all of his experiences of harm and the reasons he left;

    (i)From 2009 when he worked at the [Bazaar], people used to ask him for cigarettes. Suddenly this changed and an older group of [number] men used to approach him all the time they would ask questions about his family his home and they would harass him. These people came to the shop where he was [working] when there was no one around. They would slap him around and threatened him that he could not tell anyone. Sometimes they would come three times per week. As he could not bear it he left. The applicant could not remember the exact date that he left but after this he went immediately [Town 1]. He was working in [Town 1] for 7 to 8 months before he left Bangladesh.

    (ii)For two months in [Town 1], the applicant was able to work without harassment and then the people that had harassed him in [the] Bazaar found him and the harassment began again. The applicant did not know who they were or why they harassed him. They would harass him by asking him personal questions, ask for cigarettes and they would slap him around. Sometimes when he had to drive goods [for] his employer they would approach him and ask for the goods he was transporting. The applicant did not give them his employer’s goods. Instead he claimed he would give the money or they would take money from his wallet.

    (iii)Approximately 2 weeks before the applicant departed Bangladesh he could not take it any more and he went back to his home village. The same people followed him to his home village. He stayed in his village to 7 to 8 days and then he went to his [Sibling 2]’s house [for] a further 4 to 5 days. Then the applicant returned to Dhaka.

    (iv)When he returned to Dhaka the applicant was having tea with his friend, [Mr B] when he was kidnapped and placed in maxibus. The applicants and [Mr B’s] hands were tied and tape was put around their mouths. The people who kidnapped him were the same people who had been harassing him since 2009. They were driven around all night by the men who were drinking and taking drugs. These people did not tell the applicant why they had kidnapped him. The following morning the applicant escaped from the maxibus via a window and caught a taxi to [Sibling 2] in Dhaka. He does not know what happened to his friend [Mr B]. The applicant got some money from [Sibling 2] and immediately took a bus to Chittagong. He left Bangladesh by boat the following day.

17. On 27 June 2016, the Tribunal received a post hearing submission from the applicant’s migration agent. This submission contained the information that the applicant’s mother had been released by her kidnappers. That she had been beaten and mistreated and was required to pay a substantial amount of money to the kidnappers. The applicant did not know who kidnapped his mother, however it was submitted that these recent issues experienced by the applicant’s family, together with his past issues, indicate that there is a real chance that the applicant may face ongoing harassment upon return to his home country.

    FINDINGS AND REASONS

18. On the basis of the applicant’s consistent information provide 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, 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).

19. The consideration of the applicant’s claims requires and assessment of the credibility of the applicant as a witness. When assessing credibility, the Tribunal is mindful that it must be sensitive to the difficulties facing refugee applicants and that they should be given the benefit of the doubt when generally credible but unable to substantiate all claims. It is mindful of the circumstances in which initial Entry Interviews take place. However the Tribunal is not required to accept uncritically any and all allegations made by the applicant. In addition the Tribunal is not required to have rebutting evidence before it finds that a particular fact or assertion has not been made out. The Tribunal has also had regard to the Guidelines on the Assessment of Credibility on Protection Visa Cases. Even taking these matters into consideration the Tribunal found aspects of the applicant’s evidence to be evasive, contradictory, vague, lacking in detail and unconvincing. There were a number of inconsistencies in his evidence. He made new claims and omitted other claims made previously.The Tribunal has concerns in relation to his credibility and the veracity of his claims. The Tribunal’s concerns are noted below.

20. Firstly, the applicant’s written claims about his involvement with Jamaat-e-Islami were not consistent with the evidence that he has presented to the Department and the Tribunal. In written submissions to the Tribunal the applicant’s representative has claimed that the applicant’s ongoing involvement in Jamaat-e-Islami put him at risk if he was to return to Bangladesh. The Tribunal asked the applicant whether he was involved with Jamaat-e-Islami in Australia and he claimed that he was not. The Tribunal notes that the delegate also records that the applicant claimed to have no ongoing involvement with Jamaat-e-Islami.

21. The Tribunal also discussed with the applicant his claims that he undertook tabligh and joined Jamaat-e-Islami. The applicant was asked to clarify whether he meant that he became involved with the organisation Tablighi Jamaat or Jamaat-e-Islami and further that the Tribunal understood that Tablighi Jamaat was a separate apolitical organisation. It was put to the applicant that the Tribunal has concerns about his evidence to date on this matter and the Tribunal then the applicant a brief adjournment so that he could discuss the matter with his representative. The applicant chose to continue with the hearing, told the Tribunal that he knew the difference between the two parties, and explained that Tablighi Jamaat was involved in the local area and goes door to door spreading Islamic teachings and would invite those who are not Muslim to join in prayer and that Jamaat-e-Islami was a political party like the Awami League and BNP (Bangladesh National Party). He then claimed that he actually belonged to both. The Tribunal asked by the Tribunal about his claim of joining Jamaat-e-Islami from 2004. The applicant then told the Tribunal that this was a mistake on his part and what he actually meant was that he joined in Tablighi Jamaat. On further questioning he explained that he used to go to the [villages] in his Union to discuss Islam. He did not claim to discuss political teachings. The applicant also stated that he had not been involved in any political demonstrations or protests against the government in Bangladesh.  He said that he later became more involved with the organisation, and when questioned, he gave the example of spending a few nights with people at [a certain] Mosque.  When asked how he became involved the applicant responded that there was a mosque adjacent to his house and he listened and became involved. Consistent with his evidence before the Tribunal that it he was involved with Tablighi Jamaat in his area, he also stated that Jamaat-e-Islami did not have a presence in his village and that no one supported them. The Tribunal accepts that the applicant may have undertaken activities with Tablighi Jamaat. According to their website, this organisation is a religious movement, which is non-affiliated in matters of politics.[1]

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22. It is also clear from the applicant’s evidence to the Tribunal that he knew the difference between Jamaat-e-Islami and Tablighi Jamaat, yet information was provided to the Department that he was a strong supporter of Jamaat-e-Islami and that he had joined the party. In written submissions to the Tribunal the agent for the applicant submitted that the applicant was only involved with spreading religious values and teaching of Jamaat-e-Islami. The evidence of the applicant was that this for in fact for the group of Tablighi Jamaat. The applicant claimed that this was a mistake however the Tribunal considers that this admission by the applicant reflects poorly on his credibility and that of his claims. The Tribunal has considered the evidence of the applicant as to his involvement with Jamaat-e-Islami. His evidence to the Tribunal was that he was not a member, and only that he spent time with people at the mosque. Overall the written claims of the applicant and his representative are not born out in his actual evidence. The delegate records in his decision that the applicant was unable to answer basic questions about the policies and principle of Jamaat-e-Islami and that his evidence as to his actual activities related only to door knocking and talking about Islam, an activity he has subsequently disclosed to the Tribunal was to do with Tablighi Jamaat. Due to concerns about the applicant’s credibility, the concessions of the applicant that he was not a member or politically involved with Jamaat-e-Islami and shifting nature of his evidence as to the group he was actually involved with, the Tribunal does not accept that the applicant was ever involved with Jamaat-e-Islami in Bangladesh. 

23. Secondly, despite claiming that he endured political and religious persecution in Bangladesh prior to his departure, throughout the detailed questioning by the Tribunal of the difficulties he faced prior to leaving Bangladesh in 2013, he made no mention of being threatened, harmed or targeted because of his association, or perceived association with Jamaat-e-Islami or Tablighi Jamaat. He claimed that it was the same group of [people] were targeting him from 2009 until he departed Bangladesh in 2013. On several occasions when he was at [the] Bazaar he reported that they took cigarettes from him. Later when he was working at [Town 1], he occasionally gave them money when they threatened to steal his employer’s goods. However, other than the occasional robbery he told the Tribunal he did not know the reason why they targeted him. The applicant did not claim that they made comments about his support for or membership of Jamaat-e-Islam or Tablighi Jamaat, that it was insisted that he stop his involvement with Jamaat-e-Islami or Tablighi Jamaat, or that he was asked to join the group of his assailants. The applicant did not claim to be doing any work associated with Jamaat-e-Islami or Tablighi Jamaat when he was targeted or that he was ever in the company of Jamaat-e-Islami or Tablighi Jamaat members when these things happened. The Tribunal drew this omission to the applicant’s attention at the hearing, and pointed out that as claims persecution due to his association with Jamaat-e-Islami were central to his written claims protection previously provided to the Department, and that the omission of any claimed connection with his Jamaat-e-Islami membership in his evidence to the Tribunal raised concerns for his credibility and that of his claims. The applicant was invited to comment and he declined. The Tribunal considers that the fact that the applicant did not provide evidence to the Tribunal that he was subjected to harm in the past because of his association, or perceived association, with the Jamaat-e-Islami or Tablighi Jamaat, demonstrates that this may not be a reason that he fled Bangladesh.

24. Thirdly, the Tribunal considers the applicant’s evidence of persistent harassment from the same group of individuals was not credible. The applicant maintained that it was the same group of [men], aged in [a certain age group] that harassed him from 2009 until the time he departed Bangladesh in April 2013. He had described for the Tribunal regular contact with these individuals over this period. They spoke with him often and in addition to demanding money and cigarettes, asked him questions about his family and village. He came into contact with them regularly, sometimes 3 times per week. Additionally he maintained that these individuals followed him not only from [the] Bazaar to [Town 1], but also to his home [village], [number] kilometres from Dhaka. However the applicant was unable to identify any of these men by name, and other than robbery, he did not ascribe to them any motivation for his harassment. Despite being asked to provide detail of these particular [individuals], or who came on each occasion, or what exactly happened and what was said; his evidence was vague, general and lacking in detail. For several years he claimed that they asked him general questions about his family, or they asked him for money or cigarettes, when no one was looking they would slap him. The Tribunal does not consider it plausible that the group would pursue the applicant to the extent claimed for the occasional theft of small amount of money. The Tribunal expects if he was directly threatened several times a week, the applicant would be able to identify the individuals and would be able to provide more specific details to at least a few incidents than he was able to demonstrate. Furthermore, in his written claims he set out that he was targeted on three occasions by a group of people with [a certain appearance] in March 2013, and also by a group of [people] dressed in white in April 2013, this is not consistent with his evidence to the Tribunal that it was the same group targeting him since he was working in the [Bazaar] in 2009. This implausibility, lack of detail and the inconsistency with his earlier claims causes the Tribunal to doubt that the applicant was ever harassed, beaten or robbed as claimed.

25. Fourthly, the applicant set out in his written claims that he had asked the police for protection on many occasions and that they had not been interested in protecting him. The Tribunal asked the applicant whether he had sought police assistance with the harassment he encountered at [the] Bazaar and he claimed that he did not as he did not trust the police, and gave an example of a former school colleague that was now earning more money than his salary which was only possible through corrupt practices. The Tribunal also asked the applicant whether he had ever sought police assistance with the harassment and harm he encountered while at [Town 1] and he responded that he did not as it was the same police station that was responsible for [the] Bazaar and they were all corrupt. The Tribunal put the inconsistency with his written claims to the applicant, and asked him to comment. He then gave an answer different to his earlier responses and claimed that what he meant was that he went to the police but the police took bribes from both sides so he was not going to trust them. Finally the Tribunal asked the applicant to comment on an incident in the bazaar recorded in the delegate’s decision where he claimed that a group of men paid a police officer to arrest him and he was able to get away by also paying money to the police, and why he had not been able to recall this when the Tribunal had asked him about his contact with the police. The applicant responded that he did not wish to comment. These inconsistencies and omissions cause the Tribunal to have concerns about the credibility of the applicant.

26. Fifthly, the Tribunal found problems with the evidence of the applicant about a time he alleged that he was kidnapped in Bangladesh. At the hearing the applicant maintained that it was due to his kidnapping that he determined to leave Bangladesh and he departed within 2 days afterward from Chittagong. However the applicant’s evidence in relation to the event contained numerous inconsistencies with the version of the event he provided to the delegate. These inconsistencies were put to the applicant for comment pursuant to the provisions of s. 424AA of the Act. For example;

    (i)To the delegate he said he was kidnapped by [number] unknown people, his evidence to the Tribunal was that it was the same [number] people who had been harassing him since 2009.

    (ii)His evidence to the Tribunal was that the he was having tea with his friend [Mr B] when he was kidnapped. In contrast to the delegate records that he said that his kidnappers forced him to call his friend [Mr A] on a mobile phone, and when [Mr A] agreed to meet him he was also kidnapped.

    (iii)He told the delegate that after [Mr A] had come, his captors had taken a hammer and put a nail through his foot and they hit [Mr A] as well. The applicant did not mention that his kidnappers harmed him or [Mr B] in this way to the Tribunal.

    (iv)He told the delegate that he had spoken to his captors and that he has asked them where they wanted to take him, and they replied outside Bangladesh. When the asked by the Tribunal whether he said anything to his captors, he had responded that they put tape over his mouth and he could not.

    (v)He told the delegate that when he escaped from the bus window he landed on a large pile of sand and his captors were not alerted and he was able to run away. In his evidence to the Tribunal he claimed that he landed on cement and his captors heard him and they chased him.

    (vi)He told the delegate that once he escaped from his captors he got on a bus and went to [Sibling 2]’s house in [district], however his evidence to the Tribunal was that he caught a taxi to [Sibling 2]’s house in Dhaka, then he took a bus to Chittagong.

    The applicant did not request additional time. He advised the Tribunal that he had no comment to make in relation to most matters. With respect to his escape from his captors out the bus window, the applicant commented only that what he landed on was brick and sand, not cement. However this explanation still does not clarify the discrepancy as to whether or not his captors gave pursuit. Furthermore, in written submissions to the Tribunal received prior to the hearing, the applicant through his agent, instructed that he had never made any claims that he had been kidnapped and that the delegate recording this event had misunderstood him. As set out above the Tribunal has listened to the audio recording of the applicant’s interview with the delegate, it is satisfied that the delegate accurately set out the information given by the applicant. Further the applicant had previously given a lengthy and detailed narrative of the event. The Tribunal considered that if the kidnapping was the reason that the applicant fled Bangladesh it was implausible, if it actually occurred, for the applicant to instruct his agent that it did not occur or omit it from his written claims. Due to this implausibility and the applicant’s inability to account for the multiple inconsistencies with his earlier evidence the Tribunal does not accept that the applicant was kidnapped prior to departing Bangladesh as claimed.

27. Sixthly, the applicant omitted numerous incidents which were contained in his written claims from his evidence to the Tribunal. The Tribunal put to him that he had claimed while he was working at [Town 1] he had stated that people had threatened him with a pistol when asked for money. It was put to the applicant that the omission of this evidence could lead to the Tribunal to conclude that it had not happened and it raised concerns about his credibility. The applicant was asked to comment and he responded that he did not wish to. He did not recount for the Tribunal the incident when he returned to his [village] in January 2013 and was followed by [men] who threw stones at him as set out in his written claims. Instead he claimed that approximately 2 weeks before he left Bangladesh he could no longer stand the harassment at [Town 1] and he returned to his village but the men followed him. The applicant did not tell the Tribunal that he was targeted on three occasions in March 2013 by a group of people with [a certain appearance]. The applicant was also unable to explain the omission an incident recorded by the delegate in March 2013 when he was chased in a rickshaw. When it was put to the applicant by the Tribunal that these omissions cast doubt on his credibility, he responded that he was fasting and the he had said is prayers that day and what he had told the Tribunal was completely true. This did not answer the Tribunal’s concerns about his earlier claims.

28. Of most concern for the Tribunal was the applicant’s omission of one of his key claims. It was also put to the applicant for comment that in his entry interview, his written claims, and in his evidence to the delegate he discussed an incident where he was chased with his fellow Jamaat friends by [number] men in white with pistols, that one of his friends was shot, and also that he had hidden in a mosque and up a tree. The Tribunal put to the applicant that the failure of the applicant to recall this incident raised concern as it had been his previous evidence that this was what caused him to flee Bangladesh. The applicant responded that he did not wish to comment at that time. The Tribunal considers that omission of the applicant of this incident from his evidence to the Tribunal and his inability to explain the reason for this omission as indicative of the fact that the incident did not occur and the applicant has manufactured this claim.

29. Seventhly, the evidence of the applicant provided to the Tribunal about his experience in Chittagong was not consistent with his written claims. In his written claims the applicant claimed that he hid in the jungle in Chittagong. To the Tribunal the applicant gave detailed evidence about meeting and elderly man off the bus, that they went to have a meal together and then to the mosque and that this person was able to put him on a boat to Australia the very next day. When given the opportunity the applicant did not satisfactorily explain this inconsistency and maintained that he had told the truth. Again this inconsistency raises concerns about the credibility of the applicant and his claim that he was fleeing harm when he made his plans to leave Bangladesh.

30. Eighthly, does not accept the evidence of the applicant as to the kidnappings of his father and mother following his arrival in Australia. The applicant appeared on several occasions to link these events with his alleged kidnapping, claiming these people know all about his family and are bringing harm to his family. Earlier in the hearing he claimed that the men were looking for him and could not find him so they were after his family. When the Tribunal tried to clarify these remarks with him the applicant was evasive and on one occasion gave a response that he was not in Bangladesh and he did not speak to the people so he could not know whether they are the same people that harassed him. The evidence provided to the Tribunal in relation to his father’s kidnapping was also inconsistent with that provided to the delegate. The delegate records that his father was kidnapped overnight and returned the next morning. He told the Tribunal that a police constable came to his father and told him to stay in a hotel and his father waited and no one came. The applicant claimed his father was kidnapped a month before his interview with the delegate. A month before his Tribunal hearing the applicant claimed that his mother had been kidnapped. The Tribunal raised concerns with the applicant at the hearing about the timing of these events, and that it was extremely convenient that incidents of harm would occur to his family just before he was required to present his claims. The applicant’s only response to the timing of the incidents was that he had lost his mobile phone and his family had not been able to get in touch with him for a while. The Tribunal has also considered the submission of the applicant’s agent that his mother has now been released. However other than ransom the applicant has not provided any reason for the kidnapping, or further information linking this event to his claims for protection. The applicant has also not provided any evidence to support that these events actually occurred. Due to the overall concerns about the applicant’s credibility, the timing of these claims, the lack of corroborative information and the evasiveness of the applicant’s evidence the Tribunal does not accept that the applicant’s father or mother were kidnapped in Bangladesh as claimed.

31. Ninthly, the Tribunal found the applicant’s evidence with regard to the false claims against [Sibling 1] to be vague and unpersuasive. In submissions to the Department, and it is recorded in the delegate’s decision, the applicant claimed [Sibling 1] faced a false murder charge. The Tribunal questioned him about this matter and asked him to expand on the details that it arose in relation to a fight in his village. The applicant did not provide further details about the incident other than [Sibling 1] not being allowed to stay in the village and that [Sibling 1] was now staying at college at [a] University. The applicant was asked whether he had any evidence to support this claim and responded that his family had sent him documents but that they were not relevant. Due to the general concerns about the applicant’s credibility, his lack of ability to provide detailed information about this incident and the absence of any corroborative material the Tribunal does not accept the claim that a false case has been raised against [Sibling 1].

32. At the conclusion of the hearing the Tribunal consented to a request from the applicant’s representative for the applicant to provide further written submissions to clarify any matters raised at the hearing. The applicant did not provide submissions within that time, however in the material received on 27 June 2016, the representative submitted that at the hearing the applicant was concerned for his mother who was missing and was feeling lightheaded as he was fasting for Ramadan and that this may have impacted on his credibility. Yet at the hearing he had submitted that as he was partaking in Ramadan the Tribunal should accept that the evidence he provided was true. The Tribunal does not accept that the applicant’s mother was kidnapped. Furthermore, the applicant feeling lightheaded does not explain the considerable omissions, inconsistencies and changing nature of his evidence as to his claims. The applicant did not omit minor details in his evidence to the Tribunal, there were fundamental differences that go the heart of his original claims. For the reasons set out above the Tribunal does not find the applicant to be a credible, truthful or reliable witness as to his claims of the difficulties he faced in Bangladesh and what led him to leave and why he fears to return. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve a migration outcome.

33. It follows based on the applicant’s lack of credibility it does not accept that he was a member or supporter of Jamaat-e-Islami. The Tribunal accepts that the applicant may have joined Tablighi Jamaat and that he may have attended people’s homes to discuss Islam. However the Tribunal is not aware of any independent evidence that members of Tablighi Jaamat are perceived as Jamaat-e-Islami or that devout Muslims face difficulties as they are perceived as Jamaat-e-islami or in opposition to the government or other political parties. The Tribunal does not accept that the applicant was threatened or harassed at any time because he joined Tablighi Jamaat or that he was perceived or imputed to be a supporter of Jamaat-e-Islami. The Tribunal does not accept that the applicant was ever threatened or harmed in any way due to his religion or actual or imputed political opinion at any time in Bangladesh.

1. The Tribunal does not accept that the applicant was threatened or harmed at any time while working in [the] Bazaar. It is not accepted that he was threatened or harmed at any time while working in [Town 1]. It is not accepted that he was chased and followed to his village, that he was ever threatened with a gun, or that he was kidnapped or that he was chased by [number] people in white carry pistols or that for any of these reasons he was forced to flee Bangladesh.

2. The Tribunal does not accept that people have been looking for the applicant following his departure from Bangladesh due to his political opinion or his religion, his perceived or actual involvement with Jamaat-e-Islami or Tablighi Jamaat. It is not accepted that his parents have been kidnapped since he departed or that a false case has been brought against [Sibling 1].

3. Notwithstanding the above findings as to the applicant’s credibility, the Tribunal accepts he is a returnee from a western country. As to this claim which was outlined in a written submission to the Tribunal, it was discussed with him at the hearing and the applicant was asked on what basis he considered that these features would cause him harm. He claimed that if he had to return he had nothing left there, he did not have any money and he would have to work and he might die. The applicant agreed with the proposition that people from Bangladesh return from western countries regularly without risk of harm however he claimed that his case was different. When asked why his case was different,  he gave the example of his [relative] who earned a lot of money overseas and the applicant claimed that he had not, also he had concerns over the kidnapping of his mother. Again the Tribunal has not accepted as credible the applicant’s claim that his mother had been kidnapped.

4. The Tribunal has also considered the country information before it and does not accept that it indicates that returnees, including those from a western country face a real chance of persecution involving serious harm or a real chance of significant harm on return to Bangladesh. The Tribunal notes the DFAT Country Report Bangladesh of 5 July 2016, assessed that most returnees, including asylum seekers, are not subject to adverse attention regardless of whether they returned voluntarily or involuntarily. While the Tribunal accepts the applicant has lived in Australia since he arrived in 2013 and may be returned to Bangladesh and maybe viewed as a returnee from a western country, the Tribunal does not accept there is a real chance or real risk the applicant will be subjected to discrimination, suspicion, harm and/or kidnapping for this reason.

5. Therefore based on the applicant’s own evidence and the independent evidence before it or lack thereof the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm if he returns to Bangladesh in the reasonably foreseeable future due to his actual or imputed political opinion, his actual or imputed religion or as a returnee from a western country.

6. On the basis of the evidence before it, considered individually and cumulatively, the Tribunal finds that the applicant does not now or in the reasonably foreseeable future have a well-founded fear of persecution arising for one or more of the five Convention reasons if he returns to Bangladesh.

   Does the applicant  meet the protection obligations under the complementary protection provisions of the Act?

7. Having regard to the Tribunal’s findings above, the majority of the applicant’s claims have not been accepted as credible. The Tribunal has accepted that the applicant may have participated in activities with Tablighi Jamaat, but is not satisfied that he has been harmed in the past because of this activity, nor that he has been imputed with a political or religion opinion in opposition to other parties or the government. It is not accepted that the applicant will be imputed to be a supporter of Jamaat-e-islami and subject to significant harm for this reason. It is also not accepted that as a returnee from a western country the applicant will be targeted or subjected to any harm. It follows that it is not accepted that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm, as defined in subsection 36(2A) of the Act due to his actual or imputed political opinion, his actual or imputed religion or as a returnee from a western country, from rival political or religious organisations, the government or anyone else in Bangladesh.

   CONCLUSION

8. 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).

9. 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).

10. 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

11. 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