1502335 (Refugee)

[2016] AATA 4968

1502335 (Refugee) [2016] AATA 4968 (5 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502335

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Tania Flood

DATE:5 August 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 05 August 2016 at 9:06am

CATCHWORDS
REFUGEE – Protection visa – Bangladesh – imputed political opinion – family of prominent Jamaat-e-Islami member – lodged a police case against Awami League – fear of physical violence – fear of killing – extortion – state protection – internal relocation – decision under review set aside and substituted

LEGISLATION
Migration Act 1958, ss 36, 45AA, 65, 499
Migration Regulations 1994, Schedule 2, 2.08F

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 Bangladesh, applied for the visa on 11 June 2014 and the delegate refused to grant the visa on 27 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 5 July 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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’).

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.

    Summary of claims

    Entry Interview

11. His [brother] was involved in politics and killed as a result.  His brother had a shop and some terrorist groups asked him for donations which he did not pay.  His brother was killed in 2002 by [Mr A], a supporter of the “Amalic” Party.

12. Because of political involvement he and his [Relative 1] were threatened to be killed.  When they killed his brother he objected.  They tried to find him but his [Relative 1] put him someplace far away.

13. He was not involved in politics but his brother was involved with “Jamal Islamia”.

    Statutory Declaration

14. From an early age his family have been involved in politics.  In particular, his [brother], [Mr B], was a key member of the Jamaat-e-Islami (JI).  His family is a traditional Islamic family and they believe that religion should be a core component of Bangladesh and governance.  Subsequently, most of his family grew up to be JI supporters though his brother [Mr B] was the most active and vocal.  In fact he became well known among his local community as a JI activist.  He was well liked by JI supporters and opposed by members of the Awami League, a secular party which is currently the ruling party in Bangladesh.

15. In or around May/June 2012 key members of the JI were charged with war crimes by an Awami League tribunal set up to punish them for alleged war crimes during the 1971 liberation war.  These trials have been widely reported to be a farce and politically motivated.  Subsequently, JI members throughout the country protested.  [Mr B] played a key role in organising rallies and demonstrations and he often attended with him to assist in canvassing support for JI.

16. At the time his brother operated a small [business] in [Town 1].  Many businesses in [Town 1] were being extorted by Awami League thugs, including by a prominent Awami League member known as [Mr A].  These businesses were almost exclusively run by JI or Bangladesh National Party (BNP) members, the main political rivals of the country.

17. In around August 2012 members of the Awami League led by [Mr A] approached his brother’s [business].  They indicated that they wanted [amount] lakh taka from his family because of his family’s support for JI.  They indicated that JI were terrorists and needed to be exterminated from Bangladesh.  They merely wanted a political voice and did not condone violence.  He was at the [business] with his brother at the time and they both declined to pay the absurd extortion amount.  Firstly, they could not pay the amount and secondly they were politically inclined not to support rival parties of JI.  The Awami League members became angry and told them that they would pay with their lives.

18. In around September 2012 his brother [Mr B] organised an urgent meeting of JI members to tackle the Awami League’s increasingly persecutory treatment of JI members.  He attended the meeting to assist his brother along with other JI members.  During the course of the meeting, they were attacked by a large group of Awami League members.  The men had weapons including guns, and fired several bullets into the crowd.  He saw that [Mr A] was present and was acting as a leader of the assault.  His brother [Mr B] was shot during the conflict and died of his injuries.  He was also injured in the violence and attended a local clinic for one week.

19. Following his release, he immediately went with his [Relative 1] to lodge a case against the Awami League and in particular [Mr A], with the police.  The police told him that such a case should not be lodged and that they should not pursue the matter further.  That is, the police appeared to indicate that they would not act to arrest Awami League members, in particular, important members such as [Mr A].  Nonetheless, he and his [Relative 1] filed a case.  At this time he also began to make other enquiries with lawyers to see if they could assist in bringing [Mr A] to justice.  They too declined, whether because they knew it would be fruitless or because they feared that filing a case against [Mr A] would cause them problems too.

20. In around late November 2012 he was at his brother’s [business] which he was now responsible for when members of the Awami League approached.  Seeing them he attempted to run but was chased down and assaulted.  They beat him, looted the [business] and stole [amount] taka.  They told him to withdraw the police case against them and [Mr A] immediately or continue to face this harm.

21. Following that incident he relocated to his [Relative 1’s] home in [Dhaka] District, Dhaka Division, where he thought he would be able to hide.  He did not withdraw the police case against the Awami League members because he wanted justice for his brother.

22. Not long after, Awami League members visited his family home.  They warned his family that if he did not withdraw the case he would be killed and when his family were unable to provide them with information about his whereabouts, they destroyed property at his home.

23. This demonstrated to him that the Awami League could eventually find him throughout Bangladesh.  He needed to escape the country but did not possess a valid passport at the time.  Subsequently he and his [Relative 1] contacted a people smuggler to make arrangements for him to flee Bangladesh.  On or around [a date in] December 2012 he fled Bangladesh by [boat].

24. Since then Awami League members regularly harass his family seeking his whereabouts and extorting them when they cannot answer.  The police case against them remains pending and his family too believe that it should not be withdrawn.

25. On or around early 2014 the Awami League assaulted [another brother] and indicated that unless he tells them his whereabouts he too would be harmed.  His brother did not agree.  Shortly thereafter, his brother went missing.  He fears he may have been abducted by the Awami League members as they continue to consolidate their power in Bangladesh and operate with impunity.

26. If he returns to Bangladesh he fears he will be harmed, abused, abducted and/or killed by the Awami League Party and its supporters.

27. He fears he will be harmed/mistreated because of his membership of particular social groups:  family members of prominent JI members; individuals who have lodged police cases against important Awami League members.

28. He also fears significant harm from Awami League members for filing a case against them.

29. The authorities in Bangladesh are corrupt and ineffective and are affiliated with the Awami League Party.

    Submission 11 November 2014

30. The applicant fears if he returns to Bangladesh he would be recognisable as a family member of a JI supporter as his brother had a high position with JI and also because of the controversial circumstances surrounding his brother’s death.

31. If the applicant were forced to return to Bangladesh he would continue to seek justice for his brother as this is extremely important to him and he does not want his brother to have died in vain.  He will continue to seek to have those responsible for his brother’s death punished through legal and or juridical means.  Accordingly, he will continue to be recognisable throughout Bangladesh as a family member of a JI supporter and as a person who has lodged a police complaint against the Awami League.

32. If it is found the applicant could avoid persecution by withdrawing his police complaint against the Awami League this would be an error of law.

33. The applicant fears that the Department’s release of his personal information in February 2014 may result in him being targeted by the Awami League were he to be returned to Bangladesh.  The applicant understands that this information was available on the internet for over a week and was downloaded 123 times via 104 unique IP addresses.  Of concern to the applicant is the inability to assess as to what extent this material has been republished on other websites or even in hardcopy form. 

34. Whilst the applicant’s claims were not published, media reports have identified that the personal information released was in relation to mostly asylum seekers.  Accordingly, the Awami League would be well aware that the persons named in the released data were making claims against their government.  Given that the applicant has previously come to the adverse attention of the Awami League, the Department’s data breach increases the risk of harm to the applicant were he to be returned to Bangladesh.

    Statutory Declaration 24 June 2016

35. He fears he will be persecuted on the basis of his political opinion against the government and as a supporter of JI.  He also fears he will be seriously harmed because his brother was a prominent JI member and was killed.  He fears harm because he has lodged a police case against the Awami League members who murdered him.

36. In response to the Delegates findings he states:

37. He disagrees that he faces no harm as a JI member or for filing a case against Awami League members.

38. Before his brother was killed he was politically active with JI.  He used to help his brother by attending political gatherings to gain support for the party.  He attended JI meetings regularly and he was at the meeting when his brother was killed.

39. After he lodged a case against [Mr A] and the Awami League he was beaten so badly he was hospitalised.  He then moved away from his home village but they found where he was staying in Dhaka.

40. The Delegate found that his profile would not be elevated by the data breach but he fears that he might be at greater risk of harm if the Awami League members find out that he has been in Australia for so long.

41. He disagrees that he faces no harm as someone who left the country illegally or as a failed asylum seeker.  The Bangladesh police will pick him up at the airport and he will be arrested.  When they find out how and why he left the country the police will tell the authorities and he is sure that [Mr A] and other Awami League members will find out that he is back.

42. He disagrees that he could relocate to an urban centre such as Dhaka to avoid significant harm at the hands of [Mr A] or that the police could protect him in Dhaka.

43. Before he left Bangladesh he was staying at his [Relative 1’s] house in Dhaka but [Mr A] found him there.  [Mr A] sent Awami League members to the house.  They asked his [Relative 1] about him but his [Relative 1] said he was not there.  They threatened his [Relative 1] and said if they see him near his house then they will kill both of us.  He was very scared after this and he moved to his [Relative 1’s] friend’s house for about 4 or 5 days before his [Relative 1] organised his journey to Australia.

44. He is sure that if he moves to Dhaka or somewhere else in Bangladesh then [Mr A] will find him.  He was able to find him when he moved to Dhaka last time even though he was hiding and did not leave the house.

45. The lawyer who helped them lodge the complaint after his brother was killed is in Dhaka.  He has told them the police won’t help them.  The police did not help him in the past when he lodged a complaint and he is sure they cannot protect him if he goes back.

46. The Awami League members are continuing to threaten and harass his family and ask them for money and to withdraw the case.  They have gone to his family home and asked where he is many times. 

47. [Mr A] is still the leader of the Awami League in his area and is very powerful.  He has land adjacent to his family’s property and about six months ago he illegally took some of their land.  His family are now worse off but did not go to the authorities for help because they are too scared of [Mr A].  Also the police did nothing when he lodged a case against [Mr A].

48. His [other] brother is still missing and for over two years they have heard nothing from him.  He fears the Awami League have abducted and killed him.  His brother was not involved in politics but he fears he was targeted because he refused to tell the Awami League his whereabouts.

    Submission 28 June 2016

49. The Delegate found that the applicant would not face harm as the family member of a JI supporter but this is disputed.  It is submitted that political violence in Bangladesh is widespread and supported by country information.

50. It is not accepted that the applicant could relocate within Bangladesh to an area where he could live without fear.  Following the attack on the applicant in November 2012 [Mr A] and Awami League members were able to find him living in Dhaka at his [Relative 1’s] house.  This demonstrates he cannot live in Dhaka or elsewhere in Bangladesh to be safe.

51. While the Tribunal must take into consideration DFAT reports these must be balanced against the reports from other varied and independent sources such as those included in the submission.

52. The High Court of Bangladesh banned JI from participating in national elections in 2013 but the ruling did not extend to limiting other activities of JI.  JI has not ceased to exist since the 2013 ruling nor is it a past-presence in Bangladesh politics and society.  If the applicant returns to Bangladesh his past involvement and connections to the party through his brother and family will be as relevant as at the time he fled from Bangladesh.

53. It is disputed that violence between political parties is related to criminal activities or personal as opposed to political vendettas.  Country information shows that the ruling Awami League and it supporters are known to act with impunity and violence.  This is not an “accepted form of expression” as noted by the Delegate but rather a government that used violence to suppress any opposition.

54. Country information is referenced regarding the Awami League’s propensity for political violence and the efficacy of state protection in Bangladesh.

55. Relocation is not relevant in the applicant’s circumstances as he fears harm from the ruling Awami League. 

    Post Hearing Statutory Declaration 11 July 2016

56. He was very stressed at the hearing; he is scared of being sent back to Bangladesh and was nervous about the legal proceedings.

57. At the time of the hearing it was Ramadan and he was fasting.  At the hearing he had little energy and it was hard to concentrate.  His throat was dry and he found it hard to answer so many questions.  He did not tell the Tribunal that he was feeling this way because he did not think it would be appropriate to bother everyone involved.  He hoped that he would be able to cope despite his fasting.

58. He became very confused with all the questions about the police complaint because some of the questions asked if he had lodged a police complaint while some asked if there is a legal case before the courts.  He has only been to school to [level] and was not sure if these are different things.  He tried to answer the questions as best he could but was getting confused and as he had not eaten all day he found it hard to be clear.

1. Even though he stated he wanted to proceed with the hearing, an exchange with the interpreter had also unruffled him and made him anxious.

2. Towards the end of the hearing he panicked because he thought the Tribunal was doubtful about whether there was a police complaint lodged at all given all the questions that were asked of him.  He couldn’t think straight and made a serious error of judgement in that instant and said that there had been a court case in relation to the complaint that he lodged with the police in Bangladesh following his brother’s death.  He said that the court case had taken place in November 2012, that there had been fake witnesses and that the magistrate had set down a new court date.  This is not true.

3. After the hearing he spoke to his lawyer about clearing up what he said.  He is very sorry for creating more confusion and misleading the Tribunal.  Upon reflection, he knows he made a mistake.  He apologises and very much regrets his action. 

4. He confirms that his brother was killed at a JI meeting in September 2012.  He went to the police to lodge a complaint against [Mr A] and the Awami League members responsible but the police would not allow him to do this.  He went to a lawyer in Dhaka and the lawyer helped him to lodge a complaint against [Mr A] and the Awami League members.

5. He was then attacked by Awami League members at his brother’s [business].  He believes this was in October but has trouble remembering the exact date as these events happened a long time ago.  [Mr A] sent Awami League members to the [business] and when he saw them coming he tried to run away but they chased him.  They caught up to him, grabbed him and took him back to the [business].  They asked him for a huge amount of money which he could not pay so they beat him up and took whatever money was in the cash register.

6. About ten days after the attack at the [business] Awami League members came to his home and told him to withdraw the case that he had lodged against them but he told them he would not.  They also demanded that he give them more money but he had nothing to give them.  They beat him and his family and they completely ransacked their home.  They also threatened to come back if he did not withdraw the police complaint against them.

7. Following the incident he fled to his [Relative 1’s] house in Dhaka.  Shortly after he got there the Awami League found out where he was.  They came to his [Relative 1’s] house and asked his [Relative 1] about him.  They threatened his [Relative 1] and said that if they see him anywhere near there they would hurt his [Relative 1] as well as him.

8. He was very scared after that incident and went to stay with his [Relative 1’s] friend for four or five days then came to Australia.

   Submission dated 22 July 2016

9. Enclosed are translated copies of two letters of support from JI.  The applicant’s family obtained the first letter in about 2014 to going to the JI office in Dhaka.  They obtained the second letter on [a date in] July 2016 by going to the JI office in Dhaka again. 

10. When assessing the applicant’s credibility the Tribunal should take into account his particular circumstances, including his circumstances on the day of the hearing as well as the difficulties of going through the protection visa application process.  The factors outlined in the applicant’s statutory declaration of 11 July 2016 impacted his ability to understand the questions that were being put to him and to answer them as clearly as possible.  Further, the applicant was rattled by his altercation with the interpreter.  For this reason, he should receive the benefit of the doubt.  His credibility and overall evidence should not be affected by the mistake he made at hearing.

    FINDINGS AND REASONS

    Country of reference

11. Attached to the Department file is a translated copy of a People’s Republic of Bangladesh 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.  

12. 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.

13. To begin with, the Tribunal has addressed the post hearing submission that the applicant became ruffled during the Tribunal hearing following an altercation which occurred between himself and the interpreter and caused him to be anxious and contributed to his confusion when answering certain questions.

14. The Tribunal acknowledges that on one occasion during the hearing the interpreter reacted to the suggestion of the applicant that he had not fully interpreted his answer to a question.  The Tribunal immediately asked the applicant to restate what he had said and the Tribunal did not find what was subsequently interpreted differed from the original account.  The Tribunal pointed this out to the applicant but nevertheless reminded the interpreter of the instructions it had previously given that his role was to strictly interpret what was said by the applicant and the Tribunal; not to make comment about anything that was said.  The Tribunal asked the applicant if he was willing to continue with the hearing using the services of the interpreter and he agreed that he was.  Up to that point the Tribunal had no cause for concern over the quality of the interpreting service being provided and given the applicant’s stated willingness to proceed, the hearing continued.  The Tribunal did not observe the applicant to act any differently following this altercation.

15. In the post hearing submission dated 22 July 2016 and the statutory declaration dated 11 July 2016, it is also submitted that the applicant was weak during the hearing due to the fact it was Ramadan and he was fasting.  It is submitted that this also made it difficult for the applicant to concentrate.  The Tribunal has taken account of this submission in arriving at this decision.

16. The applicant confirmed his name [and] that he was born on [date].  He is a citizen of Bangladesh and claims not to have the right to enter or reside in any other country.  His usual place of residence was in [Town 1] village close to the city of Dhaka, however due to his problems he relocated to his [Relative 1’s] house in Dhaka before leaving the country.  The applicant confirmed his parents [and specified family members] remain at home but continue to have problems because of his situation.  His attackers ask the family about him, threaten them, demand money from them and destroy goods at home.  They have beat up his brother but not his father as he is old.    The family are just managing to survive.    When asked what the family are doing about their problems the applicant replied that the attackers are only interested in him.

    Jamaat-e-Islami (JI)

17. When asked about his family’s support for JI the applicant stated that they are not that involved in politics but his [brother] was very active in the party.  He said his brother used to encourage him to invite people to party meetings and to join the party.  He also personally attended protest marches and meetings.  When asked why he did those things he said that it was to promote Islam. 

18. The applicant was asked to describe what it is that appeals to him about JI.  He replied that he was attracted to their belief in Islam, and their belief in the law.  He said he was instructed to believe in Islam, not to fight, to pray five times a day, to follow Ramadam and follow the path of Islam.  The Tribunal pointed out that he appeared to be speaking about his religious beliefs more so than his political views and asked him to be more specific about his reasons for his political involvement.  He simply stated said he was trying to stop violence.   The applicant was asked what he knows about the current situation of JI in Bangladesh and he replied that he is not in touch with the party at the moment.

19. As to his [brothers] involvement with JI the applicant stated that he joined the party when he was young, was involved with all activities of the party, was given some power and asked to work for them. When asked what sort of work his brother did he said he used to receive instructions from JI to conduct activities, he used to invite people to meetings and protest marches and organised protest marches and meetings.  He stated that his brother was the Union leader of their area. 

20. When asked when he personally became involved with JI he said it was when he was [age] years of age.  He repeated he followed his brother to marches and also invited other people to marches.  His brother introduced him to other leaders in the Union.  When asked if he had any particular role in the party he again repeated that he participated in the marches, invited people to meetings and told people about the party.    When asked how often he went to meetings or marches he said it could be once, twice or three times a month.

21. When asked if he would resume his political involvement on return to Bangladesh the applicant stated that he doesn’t need to do anything with the party he just wants to survive.  The Tribunal asked whether he meant he would avoid any future political involvement and he replied he doesn’t think about political parties at the moment. 

22. After the Tribunal hearing the applicant submitted copies of two translated letters from an [an office bearer] of JI.  The first of these letters states that the author knows the applicant well but does not expressly state that the applicant is or was a member or supporter of JI or involved in any political activity.  While the Tribunal acknowledges the first letter was previously provided to the Department and could provide some support for the applicant’s claims to have left Bangladesh in fear for his life it does not assist the Tribunal in an assessment of his level of political activity with JI.

23. The second letter states that the applicant is an active member of JI and [held Position 1] of [a branch] while his brother [Mr B], who was subsequently murdered, was [in another position] of [another named] Branch.  The Tribunal notes that at no time during the hearing with the applicant or in any of his numerous written statements and submissions did he state he was the [Position 1] of JI.  Indeed, in discussing his level of political involvement at hearing the applicant agreed that his level of political affiliation to JI is low.  The Tribunal is of the view that the applicant would have mentioned he was the [Position 1] when asked about his role in the party rather than merely stating he attended protest marches and meetings and invited other people to join them.  

24. During the hearing the Tribunal discussed with the applicant the prevalence of fraudulent documents in Bangladesh.   The post hearing submission dated 22 July 2016 indicates that the second letter was obtained by the applicant’s family on [a date in] July 2016 following the Tribunal hearing.  As the applicant has conceded in his statutory declaration dated 11 July 2016 that he panicked and introduced information at the Tribunal hearing which is untrue (see below for further detail) because he was afraid the Tribunal did not believe him, the Tribunal has formed the view that the second JI letter was obtained after the hearing in a bid to strengthen his claims and contains false information. Given the abovementioned information attesting to the ease of obtaining fraudulent documentation in Bangladesh, and as the applicant’s evidence at hearing about his role in JI is significantly at odds with the information contained in the second letter, the Tribunal has given no weight to the second letter.  The Tribunal does not accept the applicant is or was a [Position 1] of JI.  

25. On the information before it, the Tribunal finds the applicant is a low level supporter of JI based on family tradition.  In view of the fact he does not appear to have maintained any contact with JI or any interest in the party since being in Australia, the Tribunal is satisfied he will not resume a level of political involvement with JI beyond that which he has demonstrated in the past.   That is, as a low level supporter.  With respect to his [brother], based on the consistency of his claims and evidence the Tribunal is prepared to accept he held a more prominent role in the organisation.

    Brother’s death and legal case

26. When asked about the circumstances of his brother’s death the applicant stated that there was a meeting where many people gathered and some Awami League people carrying pistols and sticks attacked them.  There was an exchange of fire and his brother was killed.  He personally was also injured and hospitalised.  When pushed for further particulars the applicant stated that approximately 120 people were present at the meeting and many were injured.  About six or seven people died.  The Tribunal stated that it was therefore a very serious incident and asked whether he has any news reports about that incident.  He said there was news coverage but he doesn’t have copies of any. 

27. The applicant was asked how many Awami League people attacked the meeting and he said it was about ten to fifteen supporters.  The Tribunal suggested they would have been outnumbered by JI attendees and therefore questioned how they were able to do so much damage.  He said the JI people were just members of the general public attending a meeting and they were not ready for a violent confrontation.   When asked where the meeting was held he said it was in [specified location] in an open area where a dais was erected.  He said the Awami League people started firing guns into the crowd.   There were some people in front of his brother who were killed, and then his brother was also killed.  He said he was standing behind and was beaten up.  The violence continued for a while but he was taken to the hospital.  He heard later that his brother was killed.

28. When asked if he has any evidence of his brother’s death the applicant stated he has a letter from JI where it is mentioned his brother was killed.  He said he would search for other information and provide it later on.  The Tribunal questioned why he has not done this already and he said he did not know it would be required. 

29. When asked who [Mr A] is the applicant stated he is an Awami League leader; influential and powerful.  As to his whereabouts now the applicant stated that he remains in the area and nothing has happened to him because his party is in power.

30. Other than his own claims, there is no evidence before the Tribunal to support that the applicant’s [brother] was shot and killed at a JI meeting as claimed.  The Tribunal finds it questionable that the applicant has not attempted to substantiate such a serious claim by way of a death certificate or more relevantly by providing news coverage of the event which it is reasonable to assume would have been reported in the local press given the claims that several people were shot and killed in the course of a large public gathering.   However, the Tribunal finds the applicant has been generally consistent in the claim of his brother’s death throughout the process of his application for protection.  Further, the applicant claims that he and his brother were previously the victims of an extortion attempt by Awami League members at his brother’s [business] and their unwillingness to meet the demand resulted in threats to their lives. Though not without some doubt, the Tribunal is prepared to accept that the applicant’s [brother] was of adverse interest to the local Awami League members, both for his political involvement and for his refusal to meet their extortion demands and that he was subsequently shot and killed by Awami League members or supporters during a JI meeting in 2012.

31. The Tribunal asked what action his family took in relation to his brother’s death.  He said his family informed him that while he was in the hospital Awami League people visited the family home and tortured the family members.  He said after hearing that he went to his [Relative 1’s] house.  He then added he also went to the police station about one week after the incident when he recovered.  He said he went to the police station with his [Relative 1].   When asked why he went with his [Relative 1] and not his father he said it is because he and his parents are illiterate and it is only his [Relative 1] who is educated.

32. When asked what transpired at the police station the applicant stated that they didn’t launch a complaint because the police said the Awami League people are very powerful.  He said the police warned them against it and threatened that nothing would happen.  He said that afterwards his parents said they should approach a solicitor.    When asked what action the solicitor took the applicant said the solicitor took the matter on but said he couldn’t do anything and that they wouldn’t get a positive outcome. 

33. The Tribunal sought clarification as to whether a complaint has indeed been lodged.  The applicant then stated the matter wasn’t taken up at court level.  He said he assumed the solicitor might have lodged the case with the court but is not aware of it.  When questioned further about the case, the applicant stated that when he left Bangladesh he heard from his family that they were asked to withdraw the case.  He said based on that advice he assumed the matter was taken to the court. 

34. The Tribunal asked the applicant whether he has any evidence of a police complaint being made or of his discussions with a solicitor.  The applicant stated that he doesn’t have anything but can try to gather something.  The Tribunal indicated that evidence he produces now might not be given much weight given he has made no previous efforts to provide evidence of these serious claims.  Further, the Tribunal pointed out that country information[1] indicates that document fraud is prevalent in Bangladesh and that this could also cause the Tribunal to question documents provided at this late stage.   At the time of this decision no further information has been provided to the Tribunal in this respect.

    [1] DFAT Country Information Report, Bangladesh, 5 July 2016; Immigration and Refugee Board of Canada, Bangladesh: Reports of fraudulent documents, 20 September 2010.

35. Following this discussion, the Tribunal put it to the applicant that the matter of the charges brought against [Mr A] and the Awami League for the murder of his brother is an integral part of his claims and based on the uncertainty he has expressed about the matter, the Tribunal now has cause to doubt whether there is a pending complaint or not.   The Tribunal indicated that based on his evidence it appears the police did not accept to make a report and the solicitor did not give them any hope the matter would be pursued either.  After a long pause the applicant stated that he did not know about the case and that is why he could not provide any evidence.   

36. Nevertheless, the Tribunal then asked the applicant what his family is doing about the case now.    The applicant replied that they are unable to do anything about it because of the daily torture and harassment they are enduring.  The Tribunal indicated that it was difficult to accept they are being tortured every day, otherwise they would surely have taken some action or moved.  The applicant then stated that it was not every day, but once a week, fortnight or month. 

1. The Tribunal asked the applicant what he personally has done to further the complaint which has been brought against [Mr A] and the Awami League.  He replied that he came to Australia to save his life and has not done anything from here.  The Tribunal therefore questioned why he would continue to pursue a legal case if he returns to Bangladesh.  The applicant replied that even if he takes up the case it will not bring his brother back.  He said that as long as he is alive he’ll be happy with that.  When asked if that meant he does not intend to pursue any further legal action he said that if they put up a case it will just put his family in danger. 

2. Towards the end of the hearing when the applicant was asked if he had anything else to add he stated that he was confused earlier on about a couple of questions.  In relation to the police case, he said earlier that when he first went to the police they didn’t accept his complaint.  However, what he meant was that when he went along with his [Relative 1] and through the solicitor, they did lodge that complaint with the police.  When asked why he was saying this now when earlier he appeared unsure about the details, he simply stated that he was confused earlier.  He then stated that the matter proceeded to court but the accused provided some false evidence or witnesses and it ended as if there was no such incident.  Again, when asked why he did not mention this earlier, particularly as the Tribunal had raised concerns about whether there was in fact a legal case, he repeated he was confused earlier. 

3. The Tribunal asked the applicant what is the current status of the case then.  He said it is still active because they did not get any justice.  The solicitor went to the magistrate and the magistrate changed the order and another hearing date was arranged.  He stated that after he arrived in Australia his family were threatened to withdraw the case.  When asked when the matter was heard in court he said it was in November 2012 when he was still in Bangladesh.  The Tribunal asked if he was present and he said he was.  The Tribunal noted that what he was saying is contradictory to what he had earlier said.  The applicant agreed that what was said earlier was wrong.

4. The Tribunal stated that it was also having difficulty understanding why his written claims also do not include the details of the court case or that false evidence/witnesses were produced at the hearing.  He said he did not know he had to mention all these things in his written statement.    When asked who is currently managing the case he said that nobody is.  When asked how he knows it hasn’t been back to court then he simply stated that after the new hearing date was set he left Bangladesh.

5. The Tribunal asked the applicant how his family are able to continue living in their local area given the high degree of harassment and torture he claims they are subjected to.  He said they have nowhere else to go; his parents are old and his [siblings] are young.  He said his family have land and rely on farming and there is nothing anywhere else for them.   When asked for specifics about the harassment his family endure he said that Awami League people visit their home, ask about him, take money and destroy their personal belongings.  He confirmed his family have not been to the police about this harassment.  He said that others in the village have sought help from the police at times but nothing happens.

100.   When asked why this harassment is continuing several years after his departure from Bangladesh he said that [Mr A] and his associates are threatening them and torturing them to withdraw the case.  The Tribunal reiterated that there appears to be no evidence of a pending case. The applicant stated that if this is the case why do they come to his home and demand the case be withdrawn.  The Tribunal suggested it is possible that they might think there is legal action pending, but that doesn’t mean there is a case.  The applicant said he could not comment but he knows the threats are continuing. 

101.   Having carefully considered the information before it, the Tribunal accepts the applicant went with his [Relative 1] to the local police station to try to make a complaint against [Mr A] and the Awami League for their involvement in the death of his brother.  Relevant to this, the Tribunal notes country information which states The UK Home Office Report of February 2015[2] notes that high levels of politically motivated violence are perpetrated by the security forces and both opposition and government supporters.  The ability to access effective protection from the state of Bangladesh may be limited due to a poorly resourced, overburdened, inefficient police force and endemic corruption.  Some members of the security forces reportedly commit serious abuses, including torture, with impunity and members of religious minorities, political opponents and women are often victims of these abuses.  A recent report by Odhikar[3] details in part police using torture and ill-treatment of detainees on remand and extrajudicial killing.  A further report by Landinfo, the Norwegian Country of Original Information Centre, dated 4 July 2013 states that the police force in Bangladesh is generally inefficient, and corruption is widespread at all levels.  Police investigation of criminal offenses is often inadequate and the police can be reluctant to investigate persons affiliated with the ruling political party.  Malicious accusations and fabricated cases occur in order to frame personal and political “enemies” and to achieve financial gain.[4]

[2] UK Home Office, Country Information and Guidance, Bangladesh: Opposition to the government, February 2015

[3] Odhikar, Human Rights Monitoring Report, July 1 to 31 2015

[4] Landinfo – Norwegian Country of Origin Information Centre, Report on police and justice, 4 July 2014

102.   In view of his claimed experience and the above country information, the Tribunal therefore is prepared to accept that the police refused to accept the applicant’s complaint on that occasion.

103.   The Tribunal also finds it plausible that having been refused help by the police the applicant and his [Relative 1] approached a solicitor for assistance to make a complaint.  However, based on the claims made at the time the protection visa application was lodged, it appears the solicitor was reluctant to do so, on the basis that there would be no likely positive outcome and doing so might cause problems for the solicitor as well, a view which the Tribunal considers is supported by the above country information.

104.   The Tribunal has taken account of the submissions made by and on the applicant’s behalf that his concentration and focus was hindered during the hearing due to the fact he was fasting and not feeling well and that he was confused about whether he was being asked if a police complaint was made or if there was a court case pending.  The Tribunal has also considered the submission that he therefore became anxious and panicky and introduced claims about a court case which he subsequently acknowledges is not true. 

105.   While the Tribunal did not observe the applicant was struggling to concentrate during the hearing, based on his submissions that he was fasting at the time, it is prepared to accept some confusion may have arisen in his mind about whether he was being asked about a police complaint or a court matter and that this could have ended in him introducing the false claims about the court case out of fear his story was not being believed.  Notwithstanding this possible confusion as to whether the matter had progressed to court proceedings, the applicant’s responses at hearing did not persuade the Tribunal that the solicitor had indeed taken up the matter with the police in the first place.  The Tribunal considers the applicant’s evidence at hearing about the outcome of his meeting with the solicitor was vague, lacking in detail and unconvincing.  The Tribunal also notes that the applicant’s statutory declaration dated 8 June 2014 clearly states that the solicitor declined to make a complaint.  

106.   Further, in the circumstances, the Tribunal finds it problematic that the applicant has produced no evidence of his discussions with the solicitor and/or of any subsequent police complaint made through the solicitor.The Tribunal considers the applicant has had ample time to produce evidence of the police complaint but has made no attempt to do so.  The Tribunal also considers it reasonable to assume that if the complaint was made through his solicitor then the solicitor would have paperwork in his possession about the matter which the applicant could easily have obtained.  The fact he has not made any effort to produce such documentation causes the Tribunal to doubt a police complaint was made against [Mr A] and/or his Awami League associates.

107.   On the information before it, the Tribunal is not prepared to accept that a police complaint was made against [Mr A] and/or his Awami League associates in relation to the death of the applicant’s brother.  Further the Tribunal does not accept that the applicant will pursue a complaint on return to Bangladesh several years later, particularly as neither he, any of his family, or the solicitor have demonstrated any attempt to do so in the intervening years.     Based on his oral evidence at hearing, the Tribunal is of the view the applicant has no interest in pursuing the matter legally on return, as he acknowledged it will not bring his brother back. The Tribunal believes this, combined with the passage of time in which no attempt has been made to follow through with a complaint, is the reason he will not pursue a complaint in future rather than his claimed fear it will put him and his family in danger.

Attack in November 2012

108.   When asked about the circumstances of this claimed attack, the applicant stated that he was looking after the [business] after his brother’s death.  Awami League people used to come to the [business] and threaten, torture and beat him and say they would kill me.   When asked why they did this he said it was because he went to the police to complain.  When asked when he was beaten up he said it was in October 2012.  When the Tribunal pointed out his statement says it occurred in late November 2012 the applicant said his brother was killed in September 2012 during the meeting; after that he reported it to the police and then he started looking after the [business] and they kept chasing me.  He repeated that he was beaten in October 2012. 

109.   When asked who beat him up he said it was [Mr A] who sent people to beat him.  He said it occurred near his brothers [business] and they said that [Mr A] instructed them to get money from him and if he didn’t pay them to kill him.  He said he did not give them any money and they beat him up.  He said they stole [amount] taka from the [business]. 

110.   When asked if he sustained any injuries in the attack he said he was beaten but remained conscious. He said he walked to the hospital where he was given first aid and medication.    He said he does not have a report about that incident. 

111.   The applicant was asked whether he reported the matter to the police and he said he did not.  The Tribunal asked him why he did not as it appears this would have strengthened his case against them in relation to the previous proceedings.  He then said he was told earlier by police there was no point taking a matter up against [Mr A] and the Awami League.  

112.   The Tribunal acknowledged at hearing copies of medical reports which appear on the Department’s file.  The Tribunal acknowledged the first of these reports appears to relate to an attack on himself in September 2012 whereas the second report appears to relate to a [different name].  The applicant stated the second report relates to an attack on his father which occurred after his brother was killed.  He said that he earlier mentioned his family was tortured and the house was vandalised.

113.   Apart from some minor inconsistency around the timing of the claimed attack the applicant has been generally consistent throughout that he was attacked at his late brother’s [business] towards the end of 2012 by Awami League persons acting on instructions of [Mr A].  He has been consistent about the location of the attack, the identity of the claimed attackers and the events which transpired during and after the attack including that he sought treatment for injuries at the hospital and did not report the matter to the police.  The applicant’s claim to have sought medical treatment for injuries is supported by medical evidence provided to the Department.    The Tribunal accepts the applicant was attacked as claimed.  On reflection, and having accepted that the applicant previously unsuccessfully attempted to lodge a police complaint about his brother’s death, and based on the above country information, the Tribunal finds it plausible he made no attempt to report the matter to the police believing it would be futile.  

114.   Based on his evidence at hearing, and in view of the medical reports on the Department’s file, the Tribunal is also prepared to accept that the applicant’s father was also beaten by the same people and sustained injuries around the same time.  This is also supported by the applicant’s claims at hearing that when he was in hospital people came to his family home and “tortured” his family members.

115.   As to why these beatings occurred, the Tribunal is satisfied, as suggested by the applicant himself, that it was because [Mr A] and his Awami League associates came to know he had attempted to report the matter to the police and were angry about that.    As noted above, despite his attempt to go to the police to make a complaint, the Tribunal does not accept any police complaint was ever made.  Whereas the Tribunal is prepared to accept the applicant and his father were beaten and injured in September 2012 for this reason the Tribunal does not accept that the applicant, his father or any other family members were and continue to be beaten and harassed or otherwise harmed in order that a complaint be withdrawn. 

Claim to have gone into hiding

116.   The applicant claimed at hearing that he moved to his [Relative 1’s] house, which is [distance] from his village, in November 2012.  He said he was hiding inside the house because he was fearful he would be caught if he went out of the house.  He said he remained there for about 10 days and then he went back to his home.  He said his attackers came to know he had returned and they started visiting the house and demanding money again.  He said his parents advised him to go back to live with his [Relative 1] at the end of November 2012.

117.   Thereafter, the applicant stated that his attackers kept searching for him and ended up coming to his [Relative 1’s] place.  When they went there they asked about him but his [Relative 1] said he was not there.  They threatened his [Relative 1] that if they see him there they will beat them both up. His [Relative 1] was scared and sent him to stay with a friend of his.  He said he stayed with his [Relative 1’s] friend for about four or five days before leaving Bangladesh.  He said his [Relative 1] contacted an agent who helped send him to Australia. 

118.   The Tribunal has no cause to disbelieve the applicant’s claims and accepts on the consistency of his oral and written evidence that he spent some time in hiding at his [Relative 1’s] house in Dhaka and thereafter, following an attempt by his attackers to locate him, at a friend of his [Relative 1], before departing Bangladesh.

Continuing harassment of family and attack on [his other] brother in 2014

119.   As noted above the applicant claims that his family are subject to frequent and continuing torture and physical harassment, extortion, damage to property and threats to kill the applicant since he departed Bangladesh in December 2012.  More recently in 2014 he claims his [other] brother was physically attacked and has gone missing without a trace.

120.   When questioned about his [other] brother’s disappearance, the applicant stated that he was not involved in politics.  He said his brother used to help his father to sell [products] in the market and that people would approach him and ask him about his whereabouts.  The applicant said his brother was at times harmed and tortured.  After some days he went missing and nobody could trace him.  He has been missing since January 2014.  When asked if he or his family have talked to the solicitor about this he first said they went to the police to report his brother missing but did not say who they suspect.  When the question was repeated he said they have not spoken to the solicitor about this.

121.   As discussed above the Tribunal accepts the applicant made a previously unsuccessful attempt to report the matter of his brother’s death to the police.  While the Tribunal accepts this, it is not persuaded on the information available, that there is an active complaint or that a complaint will be pursued by the applicant or his family in future.  Whereas the Tribunal is prepared to accept the applicant was beaten and robbed for attempting to report the matter to the police when the events transpired, the Tribunal does not find it plausible that [Mr A] and his Awami League associates would harass, threaten and harm the applicant’s family on a weekly, fortnightly or even a monthly basis as claimed for a period of at least three years or steal their land as claimed in the absence of any police complaint.   The Tribunal does not believe the applicant’s family would withstand such treatment for such a long period of time without taking steps to avoid future harm.  In this respect, the Tribunal notes the applicant claims his family continue living in their usual place of residence as they have nowhere else to go.  The Tribunal was not persuaded by this response given the gravity of the claims.  The Tribunal is also not persuaded that the applicant’s [other] brother disappeared as claimed in 2014. 

Future harm and relocation

122.   Notwithstanding the above the Tribunal accepts that past enmity exists between the applicant and [Mr A] and his Awami League associates and that there is a real chance this could be reignited in the event he returns to his local area and his presence becomes known.  In view of his family’s support for JI and given the political affiliations of his adversaries, the Tribunal is also prepared to accept that adequate state protection against such harm may not be available in the current political climate. 

123.   In view of the above, the Tribunal asked the applicant at hearing, why he could not go and live in another part of Bangladesh, which is far from his village and his alleged attackers.    He said he earlier mentioned that it would be difficult for the Tribunal to understand his situation.  He said only he can understand it.  The Tribunal repeated the question and the applicant stated that he was previously located at his [Relative 1’s] house.  The Tribunal put it to the applicant that it was one thing to go and stay with a relative but another to go somewhere entirely different where the likelihood of him being found would be greatly reduced.  The applicant replied that he doesn’t know whether the risk would be less but he knows he lost his brother, that another brother is missing, and he will lose his life too if he goes back. 

124.   The Tribunal asked the applicant how his attackers would know if he returned to Bangladesh.  He agreed that initially they might not know but he said that Bangladesh is a small country and eventually they will locate him and when they do they will kill him.  The Tribunal pointed out that Bangladesh is actually a very populous nation which would appear to make the likelihood of them finding him much less. 

125.   The Tribunal has considered the applicant’s responses but does not find it plausible that [Mr A] and his Awami League associates are or will indefinitely search for him across the length and breadth of Bangladesh based on an attempt he made some three years ago to seek justice for his brother’s death, and which in the Tribunal’s view, does not present any ongoing threat to [Mr A] and his associates for the reasons outlined.  Whilst the Tribunal acknowledges they made an attempt to find him at his [Relative 1’s] house in Dhaka at the time the events occurred the Tribunal can see no plausible reason why they would remain motivated to do so several years later in the circumstances.   Even if the Tribunal is wrong and they were intent on locating him in future the Tribunal is of the view the applicant could avoid being found by relocating to an entirely different part of Bangladesh.  The Tribunal considers this is an entirely different proposition to the applicant moving to the house of the [Relative 1] who accompanied him to the police station when the bid was made to lodge the police complaint in the first instance.  It can be assumed that if [Mr A] and his Awami League associates were informed of this attempt by the police then they would also have been aware of the [Relative 1’s] involvement and also the particulars of how he could be located.  In the absence of any such information, the Tribunal considers the chance of the applicant being relocated elsewhere in Bangladesh to be remote.

126.   The Tribunal asked the applicant whether there was any reason to conclude it would be unreasonable for him to relocate to another part of Bangladesh noting that he is a single man, with no dependants and prior work experience.  He said he cannot relocate because of his problems with [Mr A] and the Awami League. In closing submissions, the applicant’s representative stated that he has very little education, no job training, very little work experience and no family elsewhere in Bangladesh which will make relocation difficult.  In any event the applicant fears his attackers will find him wherever he goes in Bangladesh as it is a small country. 

127.   The Tribunal accepts the applicant is a low level supporter of JI but rejects he was a member or office bearer of JI or highly involved in politics or that he will be in future.    The Tribunal acknowledges that the current Awami League government banned JI from participating in the last elections and accepts that country information supports that there are reports of JI leaders and high profile activists being arrested and detained by the current government.  For instance in 2014 Freedom House[5] reported that members of JI faced pressure in 2013 with police raiding the party’s headquarters in Dhaka following violent protests organised countrywide in response to protests calling for the death penalty for war criminals.  In February 2013 the International Crimes Tribunal sentenced Abdul Quader Mollah, leader of JI to life imprisonment.  The sentencing triggered increased tensions between JI supporters and a coalition of nationalist and secularist forces. Violent clashes erupted between the two factions when the tribunal handed down a death sentence to JI’s vice president Delwar Hossain Sayedee  leading to the deaths of dozens of protesters, mostly at the hands of the security forces.  In September, Mollah’s life sentence was changed to the death penalty prompting further protests by JI’s supporters.  He was executed in December.  In December 2014 Al Jazeera[6] reported that the BNP and JI claimed the war crimes trials were politically motivated and aimed at eliminating opposition leaders.

[5] Freedom House, Freedom in the World 2014 – Bangladesh, 8 September 2014

[6] Al Jazeera, Bangladesh sentences Islamist leader to death, 30 December 2014

128.   Notwithstanding the above, the Tribunal put it to the applicant that while DFAT[7] acknowledges widespread political violence in the country its’ latest report nevertheless suggests that supporters of opposition political parties in Bangladesh are not at risk of being arrested or living in fear of violence on a day to day basis due to their political affiliations.  Rather, it is reported that opposition leaders or members face a higher risk of arrest or detention. Similarly the Tribunal notes the UK Home Office report dealing with opposition to the Government[8] states that membership or support of groups opposed to the current government does not of itself give rise to a well-founded fear of persecution in Bangladesh. The extent to which a person may come to the adverse attention of the authorities and the reasons for that, the level and nature of actual or perceived political involvement as well as their previous experiences in Bangladesh must be taken into consideration.  The applicant replied that it is up to the Tribunal to believe him or not.  He agreed his political affiliation is low level but nevertheless the incidents which he claims did occur. 

[7] DFAT Country Report Bangladesh, 5 July 2016

[8] UK Home Office, Country Information and Guidance, Bangladesh: Opposition to the government, February 2015.

129.   The Tribunal has had regard to country information referenced by the applicant’s representative and the submission that the political situation and the issues that the applicant currently faces are experienced nation-wide.  However, earlier in the hearing when discussing the applicant’s political involvement the Tribunal asked what he would do in the event he is required to return to Bangladesh.  The applicant stated that he does not need to be involved with the party and has not followed the party’s activities since he has been in Australia. The Tribunal considers the applicant has demonstrated little continuing interest in politics.

130.   The Tribunal accepts that the applicant’s past political affiliations would likely be known in his local area and that this has and may still cause problems for him on return to his village for the reasons expressed above.  However, based on country information, and as it is the Tribunal’s view that the applicant was only ever a low level supporter of JI and as he has demonstrated little interest in the party for several years, the Tribunal is satisfied there is not a real chance the applicant will suffer any serious harm if he relocates to another area in Bangladesh for reason of his political opinion.   The Tribunal acknowledges that the applicant should not be required to modify his political opinion or activities in order to avoid being harmed.  However, based on his oral evidence at hearing and given his expressed lack of interest in politics since coming to Australia, the Tribunal is not satisfied the applicant is motivated to resume any future political involvement or support for JI or any other political party to an extent his profile would be raised to a point he would be at risk of serious harm.  As such the Tribunal does not accept the applicant will have to modify his political opinions or behaviour in order to avoid being harmed on return to Bangladesh. 

131.   The Tribunal acknowledges that the applicant’s family are also supporters of JI but does not consider that this association alone will mean there is real chance the applicant will be seriously harmed by Awami League members or the state if he returns to another part of Bangladesh.  In this respect, the Tribunal notes that the applicant’s family support of JI will only be known outside of their local area if they themselves make this information publicly available.  The Tribunal can see no reason why he or other family members would do this. 

132.   For the above reasons, the Tribunal finds the applicant could safely relocate to another part of Bangladesh.  The Tribunal acknowledges the applicant’s responses and the submissions made on his behalf that it would be unreasonable to expect him to relocate but the Tribunal does not accept this.  The applicant is a young, single man with no dependents.  Whereas his low level of education is acknowledged the Tribunal notes he nevertheless has farming experience and since being in Australia has secured and maintained factory employment, both of which would assist him to find employment on return to Bangladesh.    Regarding his lack of family elsewhere in Bangladesh, the Tribunal also finds it significant that the applicant was able to travel to Australia where he has lived for several years in the absence of family support.  The Tribunal considers it will be an easier proposition for him to establish himself in a new location in Bangladesh where he speaks the language and the Tribunal considers the applicant’s family can travel to visit him elsewhere in Bangladesh so he will not be entirely without support.  For these reasons the Tribunal finds it will not be unreasonable for the applicant to relocate within Bangladesh to avoid any harm which may come to him in his local area from [Mr A] and his Awami League associates.

Departmental Data Breach and returned asylum seeker

133.   At hearing, the Tribunal referred to the submissions made in respect of the Department’s release of personal information of asylum seekers in February 2014.   The Tribunal questioned whether the Bangladesh Government is aware of these details but noted in any event that the nature of the applicant’s claims weren’t made public and that the Bangladesh Government is well aware that people leave the country and make asylum claims, including claims of a political nature.  The Tribunal also noted that country information[9] supports that hundreds of Bangladeshi’s have been returned from abroad, voluntarily and involuntarily in recent years and there are no reports that they are being mistreated for making asylum claims.

[9] DFAT Country Information Report, Bangladesh, 5 July 2016

134.   In response, the applicant stated that if the Awami League leaders and supporters who have harmed him before come to know this he will be further harmed.  The Tribunal asked how this fact would make any difference to them in the circumstances.  He said that he was harmed in the past and if he goes back there is risk he will be harmed if they come to know he is back.

135.   The Tribunal acknowledges the applicant’s responses but on the available information is satisfied that the data breach does not increase the applicant’s risk of serious harm on return to Bangladesh.

136.   For completeness, the Tribunal also pointed out at hearing that even if the applicant left the country illegally there is also no evidence that this will result in him being harmed by the Bangladesh government on return.  The Tribunal indicated that there are no reports of fines or other forms of punishment being imposed on returned asylum seekers.  DFAT’s 2014 report[10], acknowledges a law which proscribes that leaving Bangladesh unlawfully can result in imprisonment up to a year or a fine, however the report also notes that DFAT is not aware of these penalties being enforced.   The applicant stated that he has reported incidents to the police before and on return they will know about this and torture him.  The people opposed to him will bribe the police and he will be further harmed.  The Tribunal pointed out that it does not appear the police inflicted any harm on him while he was in Bangladesh for attempting to report Awami League members.  He replied that the police did not torture him and probably won’t torture him but they will let the Awami League people know he is there.

[10] DFAT Country Report, Bangladesh, 20 October 2014

137.   While the Tribunal acknowledges the applicants responses, it has found no information to the contrary concerning DFAT’s advice on the enforcement of these laws.  The Tribunal has relied on the information before it and is not satisfied that there is evidence to establish that the law would be enforced against the applicant on his return to Bangladesh thereby resulting in the applicant being imprisoned and harmed for this reason.

138.   For the above reasons, having considered the applicant’s claims individually and cumulatively, the Tribunal does not accept there is a real chance the applicant will suffer serious harm if he returns to Bangladesh, now or in the foreseeable future, due to he and his family being prominent JI members; because he is recognisable as a family member of a prominent JI supporter; because he has lodged a police case against important Awami League members or for any other of the reasons claimed.  The Tribunal finds the applicant does not have a well-founded fear of persecution.  Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.

139.   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 complementary protection criterion in s.36(2)(aa) of the Act.    For the same reasons already articulated, the Tribunal considers it safe and reasonable for the applicant to relocate to another part of Bangladesh to avoid any significant harm he may encounter in his local area from [Mr A] and/or his Awami League associates for reasons related to his political opinions and activities and/or the death of his brother.  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 the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

140.   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

141.   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