1501474 (Refugee)

[2016] AATA 4022

1501474 (Refugee) [2016] AATA 4022 (10 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1501474

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Tania Flood

DATE:10 June 2016

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 10 June 2016 at 11:14am

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] July 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 on 3 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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).

7. 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.

8. 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’).

9. 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.

10. The issue in this case is whether there is a real chance the applicant will suffer serious harm for a Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future.  Alternatively is there a real risk the applicant will suffer significant harm if removed from Australia to Bangladesh.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Summary of claims

11. In an entry interview conducted [in] April 2013 the applicant claimed:

12. When he was running his business he was forced to make donations of [amount] taka per month to some people from a group called Shorbahara.  He was first forced to make a payment in 2001 or 2002.   After five to six months the amount was increased to [amount] taka.  He paid that amount for one month and when he could no longer do it he was told he could not continue to run his business.

13. One day when he was going back to his house he was stopped at midnight.  They took his money and said they would kill him.  He did not discuss this with anyone and decided to continue his business.

14. After seven to ten days they stopped him again and threatened to kill him if he didn’t give them the money.  He spoke to his [relative] and said that he didn’t like the business he was doing and had decided to plan to go to [Country 1].

15. He hid himself at his [relative]’s house for two years and when he tried to get involved in the business again he was threatened once more.  They started pressuring him for money again in February or March of 2012.

16. When he went to [Country 1] he tried to prepare his papers through an agent.  After three or four months he was told the government was blocking the efforts and there was nothing he could do.  He said he was advised by another person to go to Australia.

17. If he goes back to Bangladesh he will be killed by Shorbahara.

18. In a statutory declaration dated 11 June 2013, the applicant claims:

19. From 2004 to 2012 he ran his own [business] in Dhaka and Comilla.

20. From 2004 members of the Shorbahara, an armed group, regularly approached him and demanded money.  They would come in groups of [number] or [number] militants, dressed in black sunglasses and hats.  Every month he was forced to pay them [amount] taka.  They would find him in Dhaka and Comilla. 

21. In his entry interview it states that he was first forced to give a donation in 2001 or 2002 however this is not correct.  He believes it was misinterpreted.

22. After some time the Shorbahara demanded an increase in the amount he was required to pay to [amount] taka.  He paid that amount for one month.  The second month he did not have money to pay.  They threatened to kill him if he did not pay and he was stopped on the street and beaten.  They stole the money he had on him and said that if he did not pay on a regular basis and on time they would kill him.

23. From 2006 to 2008 he was unable to run his business as he was afraid he would be extorted and harmed by the Shorbahara.  He remained in hiding with his [relative] in [Comilla].  During this time the Shobahara were looking for him by asking other people from his village about him.

24. In 2007 and 2008 the Shorbahara posted letters to his address.  The first time was around 2007 and the letter was delivered to his home.  The letters demanded the payment of money and threatened to kill him if he sought protection or if he told anyone.

25. From 2008 to 2012 he worked [again], however, he was afraid the Shorbahara would extort and harm him again.

26. In 2011 he received a threatening letter from the Shorbahara, again demanding payment and threatening to find him anywhere and kill him if he did not pay.

27. In March 2012 he was told by another [business person] that the Shorbahara threatened to kill him if he did not pay them.

28. [In] June 2012 he fled Bangladesh to [another country] where he remained for about a week before going to [Country 1] where he remained for about 5 or 6 months.  Thereafter he fled to [a third country] where he remained for about 1 month before travelling to Australia.  He arrived in Australia by boat [in] March 2013.

29. If he is forced to return to Bangladesh he will be extorted and killed by the Shorbahara.  They are active throughout Bangladesh. Nowhere is safe for him in the country.

    Findings and reasons

    Country of reference

30. Attached to the Department file is a translated copy of a Birth Certificate which corroborates the applicant’s claimed identify and date of birth.  At the Protection visa interview with the Delegate and before the Tribunal the applicant spoke in the Bengali language which is the principle language spoken in Bangladesh. In the absence of any evidence to the contrary, the Tribunal accepts the applicant’s identity is as claimed. The Tribunal accepts that Bangladesh is the applicant’s country of nationality for the purposes of the Convention and also the receiving country for the purposes s.36 (2) (aa) of the Act.  

31. The applicant stated at hearing that he does not have citizenship of any other country or the right to enter and reside in any other country.  In the absence of any information to the contrary the Tribunal is satisfied that the applicant does not have a right to enter and reside in any other country, and therefore he is not excluded from Australia’s protection obligations under s36(3) of the Act.

    Background

32. At the commencement of the hearing the Tribunal discussed with the applicant his family composition, and living and working arrangements prior to departing Bangladesh.  The applicant stated that his mother is deceased but his father [and family] live in the village of [name] in [Comilla] District.  When asked whether he is in contact with these family members he said that he has chosen not to communicate with them and has not spoken to any of them since he departed Bangladesh.

33. When asked where he was living immediately before he departed Bangladesh the applicant stated that he was living with his [relative] in [a] village, in [Comilla] District.  When asked how long he had lived there he said he thought it was approximately three or four years.  He said he went to live with his [relative] so that he could be closer to where he was working in [a certain] industry in around 2001.  When it was put to the applicant that it therefore appeared he was living with his [relative] for more than three or four years he said that he didn’t move there immediately and it was after quite a long while that he moved to his [relative]’s house.

34. The applicant confirmed he remains in contact with his [relative] and had spoken to her just last week.  When asked what they discuss he said that they talk about his situation and whether it is safe for him to return to Bangladesh or not.  In this regard he said his [relative] told him that some people had approached her asking about his whereabouts.  When asked when this last occurred he said it was about one or one and a half years ago.

35. The applicant was asked about the business he claims to have been running in Bangladesh.  He informed the Tribunal that he was [details of business deleted].  He said he commenced this business in about 2004 and that when the people asked him to pay an amount he couldn’t afford he gradually stopped doing business.  He said this occurred in about 2007 and that it was a gradual wind down of the business.  When asked when he last did any business at all he said it was around 2011 as by then his life had become very insecure.

    Extortion, threats and past harm from Shorbahara

36. Despite claiming to have been a victim of ongoing extortion by members of the Shorbahara group, the applicant claimed no knowledge of the organisation.  The Tribunal indicated it was having difficulty accepting he would submit to their extortion attempts for several years and never attempt to find out anything about the group.  The applicant replied that he was told that if he ever mentioned it to anyone or enquired about them he would be killed.

37. The Tribunal informed the applicant that it had sourced information[1] which indicates that a political party called Sharbahara or Sarbahara is a faction of the Purba Banglar Communist Party and asked whether this could be the group he is referring to.  The applicant claimed not to know.  In view of the close spelling of these groupings and in the absence of information to the contrary, the Tribunal is satisfied that Shorbahara, Sharbahara and Sarbahara are the same organisation.

    [1] Bangladesh:  Political Party called Sharvahara (Sharbahara or Sarbahara), its leaders and its situation in the political spectrum, Canada Immigration and Refugee Board, 8 January 2001; CX280379, “Purba Banglar Communist Party, South Asia Terrorism Portal, 15 January 2012

38. The Tribunal asked how and to whom he paid the extortion money and he said that people wearing caps, came in person to collect the money.  He said that there was no specific meeting place, that they stopped him at different places at different times. For this reason, he said that he was always prepared at the end of the month to pay them, keeping the money in an envelope which he carried in his pocket.  When asked if it was the same people each time he said it was not and that he was unable to identify them. 

39. When asked if other businesses were affected in the same way the applicant again said that he didn’t disclose the situation to other people in light of the threats made and so couldn’t say if they were affected or not.  The Tribunal finds it unusual the applicant never once mentioned the extortion or threats to another person.  The Tribunal finds it reasonable to assume a person in his situation would have made some attempt to determine who the extortionists were and whether other people were similarly affected.  That he silently accepted this fate from the outset is difficult to accept and causes the Tribunal to doubt whether the claimed events occurred.

40. Nevertheless, when asked what happened when he refused to continue paying the money the applicant stated that he started  receiving threatening letters.  He confirmed that he was living at his [relative]’s house when the threats commenced and that he was scared and started to take special care for his security.  He said the first letter arrived in 2007 followed by a second letter in 2009 and a third letter in 2011.  The Tribunal asked the applicant how he received these letters.  He said that the first and second letters were handed to a [business owner] in [the village] to pass to him and that the third letter was delivered to his [relative]’s house.

41. The Tribunal asked the applicant why the group would bother sending him letters when previously their practice had been to stop him any place, at any time.  Further, the Tribunal put it to the applicant that his written claims indicate the letters were all sent to his home and questioned why he now claims the first two letters were delivered to another [business] owner.  He said that it could be because he was no longer actively running the business and the [business] where the letters were delivered was near his home.  He put the differing claims down to a misunderstanding however, the Tribunal does not accept that response.  The applicant informed the Tribunal that from about 2007 he started to wind down his business but that it was not until 2011 that all activity ceased.  Therefore the Tribunal does not accept the applicant had ceased all public activity or that he was living in hiding at his [relative]’s house for several years or that he moved to his [relative]’s house to avoid detection.  As noted above, the applicant previously informed the Tribunal that the reason he moved to his [relative]’s house was because it was closer to his place of employment when he was working in [a certain] industry long before. 

42. The Tribunal also put it to the applicant that the threatening letters he claims to have received were only intermittently received at two year intervals and this does not suggest the Shorbahara people were very motivated to collect the money or to harm him.    Further, the Tribunal pointed out that despite the claimed threats that he would be killed if he didn’t pay the money nothing happened to him over a period of at least four or five years.  The applicant responded that if they would have found him he would have been harmed.  The Tribunal indicated it was not persuaded by this response as it appears the group were sending letters to his home address and therefore knew where he was or were able to find out where he was.  In this respect, the Tribunal notes the applicant’s claim that the [business] the letters were delivered to is close to his home.

43. The Tribunal acknowledged the submission of a handwritten letter by the applicant’s representative after the interview with the delegate.  The Tribunal pointed out that the document is a handwritten letter on blank paper and there is therefore no means of verifying whether it had been written by a member of the Shorbahara group. The Tribunal pointed out the letter could have been written by anybody.  While the Tribunal acknowledges a brief summary of the letters content is included in the submission dated 9 September 2014, there is no official translation of the document before the Tribunal and the summary provided refers to words of the “following effect”.  The Tribunal cannot be satisfied the summary contained in the submission is an accurate translation of the handwritten letter.  The applicant stated that it is a copy of the third letter he received and that it is genuine.  Despite his claims, for the reasons provided, the Tribunal has given no weight to this evidence in arriving at a decision.

44. The Tribunal asked the applicant if anything else, other than the receipt of these threatening letters, had happened.  The Tribunal repeated the question twice and the applicant stated that nothing else happened.  When the Tribunal pointed out that his written claims indicate he was stopped on the street and beaten and robbed he then changed his evidence and agreed that this event happened.  The Tribunal asked the applicant why he had twice said that nothing else happened to him and he replied that he thought the Tribunal would raise the attack itself and so he did not mention it.  The Tribunal indicated that it was not persuaded by that response pointing out that he had been asked the question twice and in view of the seriousness of the claim it could be expected he would have mentioned it himself.  The Tribunal is not persuaded the applicant was physically attacked or robbed as claimed.

45. The Tribunal also questioned why the applicant would not have thought to move out of his local area to avoid any harm which might come to him as a result of these threats.  The applicant replied that he thought he would be more vulnerable in a different area and this is why he remained at home.  The Tribunal put it to the applicant that remaining in the local area for four years in the face of such serious threats seems illogical and could suggest he was not afraid for his life as claimed.  The applicant stated he believed there was no safe place for him in the country.

46. The Tribunal put it to the applicant that he had remained in his local area for four years without being killed and that he has now been absent from the country for approximately three years and is in no longer running a business.  Further the Tribunal pointed out that the last threatening letter was received in 2011.  The Tribunal asked why in the circumstances the Shorbahara people would continue to have an interest in harming him in future.

1. The applicant referred to his earlier advice that his [relative] informed him that some people had come to look for him one or one and a half years ago.  The Tribunal stated that even if this was the case the last sign of interest in him was one or one and a half years ago and pointed out that this also appears to support its view that the Shorbahara people are not maintaining any ongoing interest in him.  When the applicant stated that he doesn’t know if any further approaches have been made by them the Tribunal pointed out that he had earlier said that he is in frequent contact with his [relative] and she told him the last time anything happened was one or one and a half years ago.

2. Noting that the applicant spent five or six months in [Country 1] before arriving in Australia the Tribunal asked why he had not applied for protection there.  The applicant responded that he was afraid he would be caught by the police and sent home.  He added that he tried, with the help of an agent, to resolve his situation but they couldn’t do anything for him.  The Tribunal asked whether he meant he had tried to apply for protection and he replied that he tried to find a legal way to remain in the country.  The Tribunal does not conclude the applicant made any attempt to seek protection in [Country 1] but rather made attempts to obtain a work or residency visa through other channels.

3. Based on the country information referenced earlier in this decision, the Tribunal accepts the Purba Banglar Community Party and its factions have reportedly been involved in acts of murder, robbery, extortion, land grabbing and abduction for ransom.  Further it is reported that cadres harass businessmen for finances and torture people in remote village.  In view of this information, the Tribunal is prepared to accept the applicant may have been the victim of extortion by members of the Shorbahara in the past which led to him winding down his business and seeking to relocate to [Country 1].  However, for the reasons outlined above, the Tribunal does not accept that he was physically attacked and robbed by members of Shorbahara; that this or other factors caused him to live in hiding for several years at his [relative]’s house; that he received a series of letters in which he was threatened to be killed or that members of Shorbahara are continuing to search for him since he departed Bangladesh. If the Shorbahara were intent on pursuing their extortion attempts or harming the applicant the Tribunal considers they were in a position to locate him in his local area where he remained for several years and would have had no need to send him threatening letters when their previous practice had been to approach him in public.   The Tribunal considers it more likely the group gave up their efforts to extort money from the applicant when he ceased trading.  This is supported by the applicant’s claim he has received no reports of any approaches by the group for one or one and a half years.  The Tribunal is satisfied the applicant will not be physically harmed or killed by the Shorbahara if he returns to Bangladesh in connection with past events.

   Future harm

4. The Tribunal indicated at hearing that being forced to make payments to the Shorbahara in future would not necessarily amount to serious harm.  In any event, and for completion, the Tribunal discussed with the applicant at hearing the above mentioned country information which indicates that the Sharbahara or Sarbahara party is outlawed in Bangladesh and that a report from 2012[2] includes a long list of incidents recorded in 2011 of police and Rapid Action Battalion arrests of members of the Purba Banglar Community Party, and its various factions, including Sarbahara.  The Tribunal pointed out that this information indicates the police and Bangladesh security forces are not sympathetic to these groupings and have demonstrated a willingness to take action against them. 

   [2] CX280379, “Purba Banglar Communist Party (PBCP)”, South Asia Terrorism Portal, 15 January 2012

5. The Tribunal acknowledges the applicant’s response that he was scared to report the matter to the police previously but does not accept this was the case.  As noted, the Tribunal does not accept the applicant was previously physically harmed or that he received any letters threatening to kill him.  Indeed, the Tribunal finds it significant the applicant willingly remained in his home area, residing with his [relative] for several years while the claimed events occurred.  In the Tribunal’s view the applicant has not demonstrated he was genuinely scared of the Shorbahara. 

6. The Tribunal is of the view, the applicant, did not report the past extortion to the police because he could afford to pay the rate of extortion money, which at hearing he claims he did for two to three years, in the interests of being able to operate his business and not because he was scared the situation would get worse if he reported it to the police. It was only when the amount was increased that he objected and commenced winding down his business. In the event the applicant returns to his local area and restarts a business and is genuinely threatened with serious harm by the Shorbahara, and particularly as he is now apprised of the above country information, the Tribunal is satisfied he would be willing to make a complaint to the police. 

7. In view of the above, the Tribunal is not satisfied that the applicant is unable or, owing to fear of serious harm, unwilling to seek police protection in the event he returns to Bangladesh and is threatened by the Shorbahara.

8. For the above reasons, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm on return 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.

9. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated, the Tribunal does not accept the Shorbahara group will physically harm or kill the applicant if he is returned to Bangladesh.  In the event, he returns to his local area and restarts a business and attempts are again made to force him to pay money to the Shorbahara or he is threatened with significant harm, the Tribunal is satisfied on the information before it that he could obtain protection from an authority such that there is not a real risk of harm.  Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk he will suffer significant harm for the reasons claimed or for any other reason. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

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

    DECISION

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.

    Tania Flood
    Member