1501860 (Refugee)

1501860 (Refugee) [2016] AATA 3974 (31 May 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1501860
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Andrew Mullin
DATE:31 May 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the Applicant a Protection visa.
Statement made on 31 May 2016 at 11:29am

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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the Applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The Applicant, who claims to be a citizen of Bangladesh, applied for the visa [in] July 2014 and the delegate refused to grant the visa [in] January 2015.
RELEVANT LAW
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.
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).
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.
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’).
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.
CLAIMS AND EVIDENCE
The Tribunal has before it the Departmental and Tribunal files relating to the Applicant. The Tribunal has also had regard to the material referred to in the delegate’s decision together with other material available to it from a range of sources.
In his protection visa application the Applicant claims, in summary:
·He was born in Dhaka, Bangladesh, in [year]. He gives his ethnic group as Bangladeshi and his religion as Islam. He received a total of [number] years of formal education in Bangladesh, ending in July [year], and graduated in [qualifications] from the [name] University of Bangladesh. He was employed as [occupation] in a [company] in Dhaka from September 2011 to June 2013. He is unmarried and his parents and a [sibling] live in Bangladesh.
·He was deeply interested in politics from an early age and became involved in student politics while at university. He associated with the Jatiotabadi Chatradal, the student wing of the Bangladesh Nationalist Party (BNP), actively participating in all its programs and meetings. He became [Official 1] of [the] (local government area) of [Location 1] in 2005, successfully organizing party activities in a number of national and cultural events. In recognition of his dedication he was elected [Official 2] of the Chatradal in the Thana and, in 2011, [Official 3].
·After the Caretaker government was installed in January 2007 political activity in Bangladesh was suppressed. While preparing to commemorate the anniversary of the death of Ziaur Rahman and protest against the arrest of BNP leaders he was sought out by a group of ‘white clothes people.’ He surrendered himself to them next morning and was interrogated. He was one of those lucky enough to escape harm but afterwards he and his family members were always ‘panicked’ about the immediate danger of torture and arrest. He was under constant pressure from his family to leave the country, for their own safety. He was in a dilemma because he could not act selfishly by leaving his colleagues in danger.
·He participated in the December 2008 election, campaigning for the candidature of [a] veteran BNP leader in the area. He organised students and youths to participate. He was threatened by activists of the Chatra League (the student wing of the rival Awami League) on a number of occasions. The Awami League won the election by a landslide and [the candidate he supported] was defeated. The Awami League began taking revenge on BNP leaders and activists.
·After leaving university he joined the BNP’s youth wing, the Jatiyatabadi Jubodal. In 2012 he was elected as an [member] of the Jubodal in [Location 1] Thana. The BNP declared a hartal (strike) [in] April 2012 and he led a procession which was disrupted by the police and Rapid Action Battalion. He was wounded in a baton charge and admitted to a clinic for two days.
·There was a further hartal organised by the BNP for [December] 2013 in which he was a leading activist. He and other Jubodal leaders were attacked by Awami League ‘goons’ who tried to shoot them. They ran away and later the police came to his home to arrest him. His [sibling] informed him that a case had been filed against him. His parents insisted that he leave Bangladesh to save his life and he obtained a [temporary] visa for Australia. His father bribed police and airport staff to allow him to leave.
·Since his departure the situation has deteriorated further. Most BNP leaders and activists are in jail or subjected to false cases. If he returns he will be persecuted.
The Applicant discussed his claims at a protection visa interview [in] January 2015. He was asked a range of questions about the positions he had held in the Jubodal, his political activities, the Jubodal leadership, the BNP’s aims and objectives and the circumstances in which a false charge was brought against him. He submitted three documents:
·A letter on the letterhead of the Bangladesh Nationalist Party (B.N.P. Jatiotabadi Dal) Australia Inc. dated [January] 2015 and signed by [Mr A] as[official]. The writer states he has known the Applicant since [2013]. He is engaged with the Bangladesh [community] and is an active [member]. He was an executive committee member of the Jubodal in [Location 1] Thana. Bangladesh is going through a very dark stage and BNP leaders and activists are being subjected to torture, abduction, killing and false cases. There are false cases against the Applicant. His life will be in danger on return to Bangladesh.
·A letter, on letterhead in Bangla, dated [September] 2014 and signed by [Mr B] as [official] of the Bangladesh Jatiotabadi Jubodal [Branch]. The writer states, in English, that he has known the Applicant for a long time. He ‘..was an active and brave worker in our political circle. Before leaving Bangladesh [the applicant] was a member of the Executive Committee of Jubodal of Bangladesh Nationalist Party, [Location 1] Thana in 2012. [the applicant] was a front line fearless young activist under the leadership of Begum Zia.’ There are false cases against him and his life will be in danger if he returns because he will be targeted by the Awami League.
·A letter on the letterhead of the Bangladesh Jatiotabadi Chatradal Dhaka City [branch], dated 5 September 2014 and signed by [Mr C] as [official]. The writer states that the Applicant was associated with the Chatradal in [Location 1] Thana. He was elected as [Official 1] in 2005, as [Official 2] in 2006 and as [Official 3] in 2011. ‘He is an active and stalwart leader of our Dal. He has commendable role in anti-government movement. The pet forces of the present government have instituted false cases against him. It is not safe for him to return to Bangladesh. I wish him overall beautiful life.’
The delegate was not satisfied that the applicant was a credible witness, had had any involvement with the BNP or its subsidiary bodies beyond that of a general supporter, or had ever been harmed or subjected to a false charge by the authorities or the Awami League.
The Applicant provided the Tribunal with a copy of the delegate’s decision record.
Tribunal hearing
The Applicant appeared before the Tribunal on 26 April 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bangla and English languages.
The Applicant’s evidence was, in summary:
·His protection visa application and statement were prepared with the assistance of [a] lawyer. He was aware of the contents of the application form and the statement and everything he had claimed in them, and in his protection visa interview, was true.
·He left Bangladesh because of his involvement with the BNP. He heard a ‘political case’ - had been filed against him so he was interested to find how he could possibly leave. Asked about the case he said he thought it was a false case and involved political problems, which are very acute in Bangladesh. The opposition (in context, Awami League) always tries to beat the BNP so he was afraid. Asked again what the case involved he said it arose from his participation in a rally calling for a hartal (strike) in 2012.
·Asked what he had feared would happen to him at the time he left Bangladesh he said he was afraid the police would arrest him and put him in jail. Jail conditions are extremely poor and the police would torture him. Asked if he had feared anything else he said the Awami League activists always oppressed him for his support for the BNP. He feared they would beat him. As to what would happen to him if he returned to Bangladesh now he said the situation in the country is extremely serious. Awami League activists, in collaboration with the police, are continually beating BNP activists and filing false cases against them.
·Asked where he had been living immediately before he left Bangladesh he gave an address at [address], [Location 1], Dhaka. Asked who owned this property he said it belongs to a friend, to whom he was paying rent. He was also staying with his parents. Asked again he then said that the owner of the property was a relative. Asked to clarify these apparently conflicting claims he said he was living in a flat on [a] floor of a block of flats. One of his [relatives] owned the whole block. Asked who was living there with him he said his parents and [sibling] did. He had first lived there in 1999 or 2000, when his father rented the flat. His family are still living there. Asked about his father’s occupation he said he is businessman, employed in a company in the [industry]. He confirmed he had completed his studies in July 2011, obtaining a [qualifications]. Following his graduation he obtained employment as [occupation] in [a business], dealing with [details deleted]. His office was located in [location], Dhaka, about fifteen to twenty kilometres from his house. He travelled to his office from his home every day and continued to work there up until June 2013, when he resigned.
·I noted that the residential address he had just provided for the period 1999 to July 2013 was different from the address he had given in his protection visa application for this period. He said that he had probably written down his permanent address at [another address] [Location 1] Dhaka (corresponding with the address shown in the application) Asked why he would describe this as his permanent address when he had been living elsewhere for fourteen years he said the house was given to his mother as a gift. He agreed that his national identity card would have shown his address as being in [address].
·Asked about his BNP activities he said he became involved with the party while he was at university. He joined [in] the Thana committee of his party and participated in many activities. He was appointed to the position of [Official 1] in 2006 of the Chatradal in the Thana and was subsequently involved in all his party’s activities in the area. He faced many problems when the government changed but he strongly supported the BNP. Asked why he would not have participated in the Chatradal committee in his university he said the [name] [the University] is a private body and does not permit student politics. Asked about his other positions in the party he said first that he had not held any other positions but then said he was promoted as [Official 2] in the Thana. Asked if he had held any other executive position of any kind he said, and repeated, that he had not. Reminded of his claim to have been appointed to the position of [Official 3] of the Chatradal in 2011 he then agreed that he did hold this position and said he had understood my previous question as relating to the period of 2006.
·Asked about his role as [Official 3] of the Chatradal in the Thana he said he had an association with arrangements for the cultural program, communications and other BNP programs. Asked what it was that he actually did he said he would ask people to join the party and raise his voice against corrupt government activities. Asked about the latter activity he said he used to talk to the general people, explaining the ruling party’s actions were not favourable to their development. Asked how he talked to these people he said he would say this in various programs, such as those normally held on Independence Day. I put to him that I still did not have a clear idea of what he would actually do. He said he had to do his activities very strongly, based on the principles of the student wing. I put to him that this might be true but that he still had not explained what he had done. He said he would encourage people to join the party and tell his community about the party’s policies. Asked how he would talk to them about the policies he said it was in the same way that the party leaders would talk to the people.
·I noted that during his protection visa interview his answers to a number of questions about the Chatradal, Jubodal and the BNP did not seem to suggest that he knew very much about them – when he was asked to name the top five leaders of the Jubodal, for example, he had been able to name only the President, and when he was asked about the objectives of the BNP he offered only very generalized responses, to the effect that it wanted Bangladesh to be a democratic, unique and socialist country with good international relations and better development and services. He said the current situation is very bad and the government is oppressing everybody. The BNP aims to establish true democracy in Bangladesh. Asked what else it aims for he said establishing democracy is the main point, together with maintaining good external relations and national sovereignty, protected from outside influences or forces. Asked if there were any other aims he said these are the main aims. I suggested that a strong BNP member, activist or supporter might be surprised that he had not mentioned anything about the place of Islam. He said Bangladesh is an Islamic country and for this reason the BNP is always trying to establish Islam there. To the observation that this is one of the main differences between the BNP and the Awami League he said many leaders in the Awami League are Muslims. I put to him that this is hardly surprising, but a key difference is that the BNP wishes to establish Bangladesh as an Islamic state while the Awami League has always stood for a secular Bangladesh. He agreed that this is a priority for the BNP.
·Asked about the harm he had suffered because of his support for the BNP through his involvement with the Chatradal and the Jubodal he said that when he took part in any activities the Awami League activists would always give trouble. They would always attack or oppress BNP activists. I asked if he could tell me, more particularly, how he had been harmed. He said that when he was an [member] of the Chatradal committee, at the time of the change of government in 2007, the Chatradal and Jubodal activists came under attack many times by Awami League activists. I asked once more if he could tell me about his own experiences of harm. He said that in about April 2012 he and others were participating in a rally to support a hartal at Jattrarbari, Dhaka. Police attacked the rally and he suffered a minor injury. Asked about this injury he said he was hit on [his body part] with a baton. He received some medication for pain relief. Asked if he had attended a hospital or clinic he said he went to a clinic where he remained for one night. Asked if there was any other incident he said the Awami League activists were always ready to attack BNP activists. Asked again if there were any other incidents he said there was nothing serious or mentionable.
·Asked if the incident during the rally in 2012 was the same incident which had given rise to the false case against him he said it was not – there was another incident [in] December 2012, a ‘half day hartal.’ He had not been harmed in this incident. Asked when he heard about the false case he said it was two days later, [in] December 2012. The police came to his home – the flat in [address] - looking for him and also search the locality. Asked who was at home at the time he said his parents and [sibling] were present. The police asked where he was and what he had been doing in the hartal. His family told them that he was not home. Asked if the police had returned to the flat subsequently he said they did not do so but they were looking for him in the locality. He confirmed that it was his [sibling] who told him the police had come to arrest him, the next day.
·He confirmed there was a gap of about seven months between the police visit to his home in December 2012 and his departure from Bangladesh in July 2013. Asked why he would have continued to live at the same address during this period if the police wanted to arrest him on a false charge he said he was afraid and, for some time, did not live in the area. I put to him that he had been living there before he left for Australia. He said he lived elsewhere in December 2012 and January 2013, agreeing that he returned to his home in late January or February 2013. I asked why, if he had genuinely feared the police would arrest and torture him on a false charge, he would have risked returning to his family home, a place the police had already raided in search of him. He said his parents had repeatedly asked him to return and assured him that nothing would happen. I asked why, if he was happy enough to return to his home in February 2013 on the basis that the police would not do anything to him, he would now fear to return three years later. He said the government did not come to power in a free election and it is extremely aggressive. He had received information that many old politically-motivated cases are being re-instituted. I asked why he would have been prepared to return to his house in February 2013 yet, four months later, would be so fearful that he had to leave his own country and travel halfway around the world to Australia. He said his parents always told him the political situation was getting worse day by day, and that it would be better for him to give up politics or go to any overseas country.
·I asked why, if the situation was getting worse day by day, the police had never arrested him in the period between their visit to his home in December 2012 and his departure seven months later, in July 2013. He said the situation was very bad and at any time there was the possibility of being harmed by Awami League activists or the police. He was trying to remain in safety. I put to him that his conduct did not reflect an effort to keep safe, and that to remain in his own home seemed highly rash and risky. He said he had to seriously consider his safety when he left his home. I put to him that if the police had any interest in him after visiting his house and searching the neighbourhood in December 2012 it seemed hard to understand why they would not simply have returned to the flat or gone to his place of work to arrest him there. He said he did not know why they did not take any action. I put to him that this could cast doubt on his claim that the police were interested in arresting him. He said he feared they could arrest and harm him at any time.
·Noting from his passport, which he submitted at the commencement of the hearing, that he was issued with a [temporary] visa [in] June 2013 and left Bangladesh [in] July 2013, I put to him that this delay seemed difficult to understand if he had genuinely feared being arrested and tortured on a false charge. He said he had asked ‘Immigration’ to put a visa in his passport but it took about three weeks for this to happen. I put to him that the visa was issued [in] June 2013 and it would have been evidenced in his passport at the same time. He said he was given a piece of paper but did not have the visa ‘sticker’ in his passport. He had no idea about this separate paper; he initially received the grant of the visa by email but it took some time before he received the ‘sticker.’ Noting again that I believed his passport, with the visa entered in it, would have been ready to be collected or mailed out to him on the date the visa was granted I asked why, even if there had been a three week delay, he had remained in Bangladesh up to [date] July 2013. He said he was unable to obtain earlier flights. To the observation that this seemed hard to believe he responded that it was true.
·Noting that he had not applied for a protection visa immediately on arrival in Australia or shortly thereafter but instead waited twelve months to do so, a few days before his visa was due to expire, I put to him that the delay could cast doubt on the truth of his claim to fear harm in Bangladesh. He said that at first he was expecting a fair election in Bangladesh, in January 2014, in which case the BNP could have won. I put to him that they could not have won if, as was the case, they had not participated in the election. He said he was expecting them to win but once he saw it was a one-sided election he made up his mind that he could not return. I put to him that if he had discovered this in January 2014 he had still delayed six months before he applied. He said he had been thinking about he could formally apply – this took time. I put to him that I could not see how this would take six months. He said he did not know the procedures for applying. I noted there is a large Bangladesh community in Sydney, many of whom would have been able to advise him or at least direct him to a migration agent – a course of action he had taken when he consulted [his representative]. He said he had gone to an agent but this person who was not interested in filing an application for him. To the suggestion that he would presumably have gone to another agent he said he went to [his representative].
·Noting that the letter he had submitted from the [official] of [an association] in Australia described him as an active member of the Jubodal here I asked about the things he did for that organization. He said they worked to form a successful committee in Australia and strengthen their activities. Asked again what he did he said he used to support those who were organizing programs. Asked how he supported them he said it was directed to how they could do their programs successfully – how could they protest and how they could draw media attention to the situation in Bangladesh. Asked about the most recent Jubodal event he had attended he said he was at a meeting to discuss the formation of a new committee, held [in] March 2016.
·(Later in the hearing he submitted a copy of [a] Bengali-language [newspaper] published [in] 2015 which, he said, showed him among a group of people at a BNP meeting. At my request the interpreter provided a brief summary of the article. It describes a meeting held by the BNP in Australia to commemorate the 2014 Bangladesh election, described as a ‘black day’ which produced an illegal government that was behaving like a ‘mad dog.’ The interpreter confirmed that the Applicant’s name is not mentioned anywhere in the article. I put to the Applicant that, if I accepted that his photograph appeared in the article I might doubt that this would cause him any harm on return to Bangladesh. He said it is widely reported that BNP activists are very badly treated by Awami League activists)
·Asked how he had obtained the letter from [Mr B] of the Bangladesh Jatiotabadi Jubodal [Branch] he said he asked his parents to get him a certificate. Asked the location of the original he said the letter was sent to him by email. I noted that, as the delegate had observed, the telephone numbers under [Mr B]’s signature have been altered by hand. He said he had no comment, but he had told the truth about the way in which he received it. To the observation that the website quoted on the letterhead ([deleted]) is inactive he said there are lots of problems in Bangladesh. I noted, additionally, that the emblem on the letterhead showing [emblem] does not appear to be the emblem of the Jubodal. He said that as far as he knew the letter was true and original.
·I noted that letterhead of the third letter he had submitted, from [Mr C] as President of the Dhaka City [branch] of the Chatradal, features an emblem, [details deleted]. I put to him that this is inconsistent with the format of the emblem depicted on the Chatradal website ([website address deleted]) which clearly shows [deleted]. He said the printing company may have made a mistake. I put to him that, given the official emblem of the organization is an important matter, I found it hard to believe the Chatradal would continue to issue documents containing such a printing error.
·I put to him that the features I had identified in the letters from the Jubodal and Chatradal, together with country information available to the Tribunal indicating that false or fraudulent documents are readily available in Bangladesh and are often used to support applications for protection or other visas, could lead me to believe the letters were not authentic. He said there could be fraudulent cases in Bangladesh but his own documents were genuine.
·I put to him that the country information before the Tribunal, including the most recent DFAT reporting from October 2014, makes it clear that there is political violence in Bangladesh, committed by all sides and not just by the Awami League. However, the information does not indicate that simply supporting a political party exposes people to being targeted by the police, other parties or anyone else. He said that activists are in a different situation from ordinary supporters.
·Asked if there was anything he wished to add he said he could provide any further documents the Tribunal wished and invited the Tribunal to investigate the documents he had already submitted.
CONSIDERATION OF CLAIMS AND EVIDENCE

On the basis of his passport, which he submitted at the hearing, I accept that the Applicant is a citizen of Bangladesh and that his identity is as he claims it to be.
Although the Applicant does not specify the basis on which he seeks Australia’s protection I accept that he can be seen as claiming to fear persecution in Bangladesh on the Convention ground of his actual or imputed political opinion in favour of the Bangladesh Nationalist Party and against the Awami League.
Having considered the Applicant’s account together with the country information cited in the delegate’s decision record and other information before the Tribunal I have strong doubts as to the credibility of his claim to have been an activist in the BNP cause and to have suffered harm from the authorities and the Awami League as a result. This is for the following reasons.
·Even allowing for the fact that he has been absent from Bangladesh for nearly three years, his responses at the hearing to questions about the BNP gave little impression that he was speaking from a background of knowledge which might reasonably be expected of someone with the substantial history of activism as an executive officeholder in local branches of the party’s student and youth wings which he claims. He could offer little or no meaningful information about what it was that he allegedly did to support his party in Bangladesh and his responses to a range of questions on the subject were highly generalised and lacking in circumstantial detail. His account of the BNP’s objectives was confined to generalities and, notably, omitted (until he was prompted) any reference to the importance the party attaches to the role of Islam in society, an issue distinguishing it from the avowedly secularist aims of the rival Awami League. I note from the copy of the delegate’s decision record which the Applicant provided to the Tribunal that his responses on these matters when he was asked about them during the protection visa interview [in] January 2015 were similarly vague and uninformative.
·His account at the hearing of the incidents of harm he allegedly suffered as a result of his political activism was similarly vague and uninformative and he appeared to ignore some of the incidents mentioned in his written statement. He said he had been admitted to a clinic overnight after he was struck on the leg by a baton during a rally in April 2012, and I accept this is generally consistent with his claims about such an incident in his statement although I note that in the statement he claims he was released from the clinic after two days. Asked if he had suffered harm in any other incident he suggested that he had narrow escapes on a number of occasions and went on to mention the hartal in December 2012 which prompted the police to bring a false case against him. Other than this he had suffered no harm. He made no mention of the incident described in his statement when, in 2007, a group of ‘white clothes people’ came looking for him and he was detained and interrogated about his activities, an incident which left him and his family ‘panicked’ about the danger of torture and arrest. Nor, in mentioning the hartal in December 2012, did he mention that he had been forced to flee when police and Awami League figures began shooting at him and other leaders of the Jubodal.
·His claim that police came to his house to arrest him on a false charge [in] December 2012 and also searched the neighbourhood for him appears highly implausible. As put to him at the hearing, if the police were motivated to arrest and torture him it is difficult to understand why, having missed him once at his home they would never return there to try to find him or visit his place of work, located within twenty kilometres of his home. It is equally difficult to understand why, fearing arrest and torture, he would nevertheless return to his home after two months and remain there for another five months before leaving for Australia, or why he would continue attending his office throughout this period. When these issues were put to him for comment at the hearing he said, without elaboration, that he kept himself safe and that the reason for returning to his home after two months was that his parents wanted him to do so and assured him the police would not harm him. This does not, however, explain why he would decide to abandon his own country and travel to Australia after another five months and he has not pointed to any further incident or development which might have precipitated his departure.
·As put to him at the hearing, the evidence of his passport indicates that he was issued with a [temporary] visa [in] June 2013 but did not depart Bangladesh until [July] 2013, over five weeks later. Although his response on this issue was somewhat confused he appeared to claim that he had received an email ‘granting’ the visa [in] June but that the visa ‘sticker’ was not placed in his passport for another three weeks. I find this claim implausible and I do not accept it. I am not satisfied that his lengthy delay in leaving the country, when he had the ability to do so, is compatible with his claim to fear that the police were looking for him in order to arrest and torture him.
·Finally, as also put to him, he delayed lodging a protection visa for almost twelve months after arriving in Australia, doing so within days of his [temporary] visa ceasing. I have considered the explanation he offered for the delay – to the effect that he had been waiting to assess the outcome of the Parliamentary election in Bangladesh in January 2014 and, when he found the Awami League had been unfairly re-elected, realized that he could not return – but I find this generally unconvincing. Further, even if he had delayed lodging an application for six months in the hope that the BNP would win the election, he waited for a further six months before doing so. His explanation for the additional delay was to the effect that that he did not know how to apply, was ignorant of the procedures and was advised by a migration agent that he would not lodge an application on his behalf. I am not satisfied that these considerations would plausibly have prevented him from seeking Australia’s protection until another six months had passed, however, particularly if his hopes to be able to return to his country had been shattered by the outcome of the election. I find the lengthy delay in lodging his protection visa difficult to reconcile with his claim to have fled Bangladesh in fear of serious harm at the hands of the authorities and the Awami League.
Taking together all the information provided by the Applicant with the country information available to the Tribunal I am prepared to accept that he may hold a political opinion favourable toward the BNP, may have voted for the party during elections and may have attended some public meetings and rallies organised by it. However, I am not satisfied as to the credibility of his claim to have been a political leader while he was in Bangladesh, to have held executive positions in the Jubodal and Chatradal or to have operated in any way as an activist in his local area in the BNP interest. I am not satisfied that he led rallies, processions or hartals as he claims to have done or that in any other way he established for himself a political profile as a BNP leader or activist or as an opponent of the Awami League. Nor am I satisfied that he was ever targeted or harmed for such a reason by members or supporters of the Awami League, the Bangladesh authorities or anyone else. In particular, I am not satisfied that he was the subject of a false charge instigated by the Awami League for which police tried to arrest him in December 2012, or that it was a fear of arrest and torture, or other forms of harm at the hands of the Awami League or the authorities, which motivated him to leave Bangladesh in July 2013.
I accept that the country information before the Tribunal, including the most recent DFAT reporting, indicates that political violence continues to occur in Bangladesh, particularly at the time of elections and during demonstrations, hartals and other forms of mass public protest. The information indicates that opposition leaders or activists currently face some risk of being targeted for arrest and detention because of their political activities. There have also been some reports of members or lower level supporters of the major parties suffering physical harm in public clashes. However, having considered all the Applicant’s claims against this background I am not satisfied that he ever had an involvement with the BNP or its student or youth wings at a level which would have singled him out or exposed him to any form of targeted harm or which would now put him at more than a remote risk of harm if he were to return to Bangladesh as a person who simply favoured the BNP and attended some of its public activities.
I have reached this conclusion having considered the supporting letters submitted by the Applicant which are said to have been written by [Mr B] of the Jubodal [Branch] and [Mr C], of the Chatradal in Dhaka City [Branch], both of which attest to his strong political commitment and activism. As put to him at the hearing there are features of both letters which raise concerns about their provenance. [Mr B]’s letter includes telephone numbers which have been altered by hand, an inoperative website address and an organization [emblem]which does not appear to match that of the Jubodal or any other constituent body of the BNP available through searches of the internet. As for [Mr C]’s letter, the letterhead incorporates an emblem which at first glance appears to be that of the Chatradal but on closer inspection contains clear differences. I am not satisfied that the explanation for this inconsistency is that a printing company made an error, as the Applicant suggested when it was drawn to his attention. Against the background of country information indicating that false or fraudulent documents are readily available in Bangladesh and are frequently used to support refugee and other visa applications, these features of the letters lead me to conclude that no weight can be placed on them as support for the Applicant’s claims of political involvement in Bangladesh.
I also note the Applicant’s claim to have supported the Australian branch of the Jubodal since his arrival here in mid-2013. He made no mention of this activity in his written statement of July 2014 and raised it for the first time in his protection visa interview [in] January 2015, submitting a supporting letter over the signature of [an official] of the BNP in Australia, [Mr A], dated the previous day. His responses to questions at the Tribunal hearing about the nature of his Jubodal involvement in Australia were notably vague and devoid of circumstantial detail, suggesting no more than that in some undefined way he had helped to work toward [details deleted] and publicize the situation in Bangladesh. He claimed to have attended a meeting on this subject [in] March 2016. He submitted a report, in [a] Bangla language newspaper published [in] 2015, of a BNP meeting held to mark the anniversary of the 2014 election. The article is accompanied by a [photograph] and, although his name is not mentioned in the article I accept that the Applicant is one of the people portrayed.
Having considered this information against the background of my lack of satisfaction about the credibility of the Applicant’s claims of political activism in Bangladesh, I am not satisfied any weight can be placed on [Mr A]’s letter or the newspaper article as support for his claims. I am not satisfied that he has had any continuing or significant involvement with the BNP or the Jubodal since his arrival in Australia which might point to him adopting an activist role on return to Bangladesh. Nor am I satisfied that the appearance of his photograph, without any identification, in an article concerning a BNP meeting held [in] Australia, could plausibly be seen as placing him at any risk of harm on return to Bangladesh.
Summary –refugee claims
Taking these considerations together I am not satisfied that the Applicant has provided a credible account of his experiences in Bangladesh. I am not satisfied that he had any leadership or activist involvement with the BNP, its youth wing or its student wing in his Thana. I am not satisfied that he was harmed by the Awami League by being detained and interrogated, that he was injured in a rally in April 2012, that he was shot at in a hartal in December 2012, that a false case was lodged against him, that police came to his home to arrest him or that he was in any other way harmed as a consequence of political activism. Nor am I satisfied that since arriving in Australia he has had any continuing or significant involvement with branches of the BNP or the Jubodal.
As I am not satisfied that the Applicant ever suffered harm in the past in Bangladesh because of a political opinion, and in the absence of any indication that his personal circumstances have changed since his departure so that a risk of harm could now be said to exist, I am not satisfied there is a real chance that he would suffer serious harm for such a reason if he were to return to Bangladesh. He does not claim to fear harm in Bangladesh for any other reason and no other reason is apparent on the face of the information before the Tribunal.
In the light of all the information before the Tribunal, considered individually and cumulatively, I am not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason should he return to Bangladesh, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee.
Complementary protection
Having considered the Applicant’s claims, individually and cumulatively, I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, there is a real risk he would suffer significant harm in terms of s.36(2)(aa) of the Act because of a political involvement with the BNP or its associated Jubodal or Chatradal. Specifically, I am not satisfied there is a real risk he would be arbitrarily deprived of his life, the death penalty would be imposed on him, he would be subjected to torture, or he would be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment. He has not raised any other matters which would be relevant to an assessment of Australia’s complementary protection obligations in his case.
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
The Tribunal affirms the decision not to grant the Applicant a Protection (Class XA) visa.
Andrew Mullin

Member

[2016] AATA 3974

31 May 2016

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction