1502701 (Refugee)

[2016] AATA 4982

1502701 (Refugee) [2016] AATA 4982 (27 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502701

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:David McCulloch

DATE:27 October 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 27 October 2016 at 4:51pm

CATCHWORDS
REFUGEE – Protection visa – Bangladesh – Federal Circuit Court appeal – Irregular maritime arrival – Political opinion – Jamaat-e-Islami party supporter – Family land dispute – Persecution from Awami League supporting relatives – Credibility issues – Decision to refuse to grant Protection (Class XA) visa set aside and substituted with decision to refuse to grant Protection (Class XD) visa

LEGISLATION

Migration Act 1958, ss 5(1), 36, 424A , 424AA, 45AA, 65, 499

Migration Regulations 1994, Schedule 2 r.2.08F

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Luu & Anor v Renevier (1989) 91 ALR 39

MIEA v Guo & Anor (1997) 191 CLR 559

Prasad v MIEA (1985) 6 FCR 155

Randhawa v MILGEA (1994) 52 FCR 437

Yao-Jing Li v MIMA (1997) 74 FCR 275

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Bangladesh, applied for the visa on 24 July 2013 and the delegate refused to grant the visa on 19 February 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 23 August 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, who did not attend the hearing.

   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. The Tribunal has before it DFAT Country Report – Bangladesh, 5 July 2016.

11. The issue in this case is the credibility of the applicant and whether, on his accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and claims

12. The applicant arrived in Australia on 28 March 2013 by boat.  He arrived as an Illegal Maritime Arrival. An Entry Interview was conducted with the applicant on 3 May 2013. The application for a Protection visa was lodged on 24 July 2013.

13. The application forms for the Protection visa provide the following information. The applicant was born on [date]. He was born in [Village 1] Village, Jessure District.  His religion is Islam (Sunni).  The applicant lists a wife and two sons living in [Village 2] Village, Chuadanga District. The applicant indicates his father having died of natural causes in 2002.

14. The applicant lists having lived in [Village 1] Village from [year] until February 2013. He lists living in [Village 2] Village from February 2013 until March 2013.

15. The applicant lists the following siblings and where they live:

    ·[Mr A] living in [Village 1] Vilage

    ·[One sibling] living in [a] Village

    ·[One sibling] living in [a] Village

    ·[Mr B] living in [Village 1] Village

    ·[One sibling] living in [a] Village

16. The applicant indicates that he worked as [an occupation] from 2000 until March 2013.

17. The applicant’s claims for protection are set out in a Statutory Declaration dated 10 July 2013 which provided as follows (headings omitted):

    The following is only a summary of my claims for protection. It is not an exhaustive statement of the reason or reasons why I cannot return to my country of origin. I will provide further information in relation to my present claims during my interview with the PV officer.

    I am a Bangladeshi citizen.

    I am an ethnic Bangladeshi and a Sunni Muslim.

    I was born on [date] in [Village 1] Village, Chuadanga area, Jessure district, Khulna division, Bangladesh.

    I fear returning to Bangladesh.

    Approximately 25 years ago my father who was a staunch supporter of Jamaat- e- Islam political party, purchased a large block of land (approximately [number] bigah I believe this may equate to approximately [number] acre) from [Mr C] and [Mr D] who were two siblings.

    The land purchased from [Mr C] was made solely by my father and was between [Mr C] and my father.

    The land purchased from [Mr D] was made by my father and two of my father's brothers ([Mr E] and [a named person]). This was a joint purchase of land and all three brothers (my father and two of his siblings) owned the land equally and the land transaction as far as I know was completed according to Bangladeshi land law. The extent of this particular block of land was approximately [number] bigah. My father owned approximately [number] bigah of this particular block of land.

    Though at the time of the purchase of land one of my father's brother [Mr E] was not a member of a political party over time this particular brother [Mr E] became an active Awami league political party member.

    Prior to and after the death of my father my immediate family members (wife and children) and siblings and their family members continued to live in the land my father owned which is situated in [Village 1] Village.

    Since the death of my father in 2002 one of my uncles ([Mr E]) began causing trouble because after the death of my father my siblings and I began to divide the land my father owned. In Bangladesh when a parent who is a landowner passes away the children could inherit the land without initiating legal proceedings. This is the usual practice in villages in Bangladesh.

    [Mr E] and five of his sons [who] are active Awami league political party members have in the recent past attempted to forcibly take the land owned by my family.

    My uncle and cousins have made false allegations and have told us that the land my father purchased was not properly executed according to the law and that the land transaction was invalid. They state that [Mr C] and [Mr D]'s father did not legally transfer the land to [Mr C] and [Mr D] and hence my father did not legally acquire the land my family and I are currently residing in.

    The land deeds relating to my father's land is at present in my wife's possession.

    In spite of there being a legal document such as a land deed my uncle and his sons insist that the land belongs to them.

    Since 2002 the land my family had been residing in has gradually reduced as we have been forced to move from our land by my uncle and his sons who are powerful and politically connected.

    Sometime early 2013 my uncle and his sons exerted a lot of pressure on my family and myself. They threatened to harm me if I did not hand over the legal documents relating to my father's land.

    Fearing the worst I decided to leave the family land and relocate with my wife, children to my father in law's residence situated in [Village 1] village which is situated in Chuadanga area.

    Sometime in January 2013 while I was residing in [Village 1] Village my uncle, his sons and a few others who I believe are Awami League supporters came to my residence with sticks and other homemade weapons.

    My uncle and his sons threatened to harm me if the land is not transferred to them. I agreed to transfer the land on a later date and fortunately they left.

    Immediately after this incident I decided to take my wife and children to a safe place and hence fled to [Village 1] village.

    As my life was in danger I decided to flee the country in March 2013.

    Since arriving in Australia in April 2013 I learnt that my younger brother [Mr B] who strongly opposes the transfer of land to my uncle too has fled [Village 1] Village.

    I believe though my wife is living with her father in [Village 1] village at the present time there is a possibility that my uncle may find out her whereabouts as the family land deed is in her possession as I gave it to her for safe keeping prior to fleeing Bangladesh.

    [Mr A] my older brother previously had a disagreement with my father and had moved out prior to my father's death. After my father's death [Mr A] returned to the family land and at present he is occupying a smaller area of the land my family owns. My father died without leaving a will and this would mean all his children including [Mr A] are entitled to a portion of the land my father owned. At the time of my father's death the land deed was in my possession as I was the oldest sibling living with my father (as [Mr A] had moved out).

    Though [Mr A] wants portion of the family land he has been diplomatic as he has told my uncle and his sons that he is not against me transferring the family land providing I [(applicant)]agree to the transfer of the land. Therefore [Mr A] has not been targeted by my uncle and his sons. Though my sisters are also entitled to a portion of the family land since they got married they have not shown any interest.

    I believe I would be seriously harmed and possibly killed by my uncle and his sons who are members of the ruling political party Awami league as they want me to transfer the family land.

    I fear being seriously harmed by my uncle and his sons.

    I do not believe that the Bangladeshi authorities would protect me as I am a member of Jamaat-e- Islam political party (like my father) and I am being pursued by members of Awarmi league who happen to be my relatives.

    I believe no matter where I move to I would be targeted by my uncle and his sons as they are members of Awami league and are influential.

    It is not possible relocate to another area as I have lived all my life in [Village 1] Village and do not own land or property in any other area in Bangladesh.

18. The applicant provided copies of the newspapers and translations:

    ·Article, [Source], [November] 2014, indicating that [details deleted].

    ·Article, [Source], [November] 2014, indicating that [details deleted].

19. Provided also is a letter to the Police [of] Chuadanga District dated [November] 2014 provided by [Mr F] reporting that his house has been taken over by local bandits in the middle of the night. 11 individuals are named as perpetrating the attack.   The letter indicates that they threatened life, damaged and set fire to the property and cut trees. They also threatened the complainant’s brothers, including the applicant, who fled from the country in fear of their lives.  The letter states that [Mr F] is currently staying in a refuge, away from home and family in fear and there is no way that he can return home.

    Independent information

20. The Tribunal has regard to the following information contained in DFAT Country Report – Bangladesh, 5 July 2016:

    The Awami League (AL) and Bangladesh Nationalist Party (BNP) have dominated politics for most of Bangladesh’s history. The AL is considered broadly liberal, secular and pro-Indian, while the BNP is viewed as conservative and anti-Indian, and places greater emphasis on Islam. However, both parties have compromised these ideologies for the sake of political expediency. The relationship between the AL and the BNP is characterised by longstanding enmity and personal rivalry between the parties’ leaders, Sheikh Hasina (AL) and Khaleda Zia (BNP). These factors have led both parties to approach politics in a confrontational, ‘winner-takes-all’ manner.

    The AL’s current term in Government has seen a further contraction in Bangladesh’s political space, with the Government restricting the activities of opposition party members, human rights defenders and journalists in an effort to cement its control over politics. These actions have eroded the AL’s political legitimacy while also inciting a violent response and election boycotts by the BNP, undermining its image as a credible alternative.[1]

    […]

    The AL and BNP have both used parliament, the executive and the judiciary to undermine government opponents, including civil society organisations (see ‘Human Rights Defenders’, below). In 2011, the AL removed a constitutional provision which mandated the formation of a neutral caretaker administration to oversee elections, and also deregistered JAMAAT-E-ISLMAI as a political party. In 2015, the AL arrested thousands of BNP and JAMAAT-E-ISLMAI members and initiated legal proceedings against most senior BNP members, including Khaleda Zia.

    Authorities have restricted BNP meetings and protests in rural areas, and have responded violently to JAMAAT-E-ISLMAI-led anti-ICT protests. Bangladesh Police also reportedly arrested BNP candidates prior to municipal and mayoral elections in 2015 and were responsible for instances of vote rigging. DFAT understands that AL activists backed by law enforcement agencies pressured BNP candidates to withdraw from these elections and prevented BNP candidates from submitting election nominations.

    Credible sources have told DFAT that the ruling party’s fronts – student or otherwise – have historically controlled all public institutions. In this vein, DFAT understands that the AL’s student wing (the Chattra League) has effectively controlled public university campuses and restricted the activities of BNP and JAMAAT-E-ISLMAI student wing members since 2009. Chattra League members have reportedly prevented JCD and ICS members from sitting university examinations. AL members and activists have also reportedly extorted BNP business owners in rural areas, threatening them with violence if they fail to comply with demands for money. DFAT understands that JAMAAT-E-ISLMAI members are generally subjected to greater levels of harassment and intimidation than members of the BNP. According to the International Crisis Group, the AL pressured Jatiya Party leaders into contesting general elections in 2014 to create the appearance of a competitive contest.

    Apart from the instances listed above, DFAT is not aware of any other, credible reports of authorities harassing Jatiya Party members or relatives and associates of Jatiya Party, BNP and JAMAAT-E-ISLMAI members.

    DFAT assesses that under the current AL Government BNP leaders and JAMAAT-E-ISLMAI members are subjected to a high level of official discrimination during periods of heightened political tension, particularly national elections. JCD and ICS members are subjected to a moderate level of harassment from members of the Chattra League. BNP supporters or members in rural areas are subjected to a low level of violence associated with AL extortion.

    [1] DFAT Country Report – Bangladesh, 5 July 2016, para. 3.43-3.44

    Hearing, Credibility, findings and assessment

21. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA(1994) 52 FCR 437.

22. In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA  (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

1. The Tribunal is satisfied that the applicant is a citizen of Bangladesh, and accordingly his claims will be assessed against Bangladesh.

   Land dispute with family

2. The Tribunal has the following credibility concerns with the applicant’s claims to have suffered threats and harm, and be at a risk of harm, as a result of a family land dispute.

3. Firstly, the applicant failed to make any claims in the Entry Interview relating to family land being the source of harm or difficulty from relatives. In contrast, the Entry Interview refers to a well of the applicant’s being stolen by the Awami League and the applicant being arrested and charged with stealing the land of his neighbours. These were not claims made by the applicant as part of the written application for a protection visa or raised by the applicant in the interview with the delegate.

4. In the hearing, the failure by the applicant to make a claim in the Entry Interview concerning harm from a family land dispute was put to the applicant pursuant to the procedural requirements of s.424AA of the Act.

5. In response to this issue, the applicant indicated that he referred to the issues of land being taken from his family but that it was not recorded. The applicant also indicated that what he said in the Entry Interview was true. He said that there was a dispute with neighbours and he was beaten and he was charged.

6. The Tribunal does not accept that, if the applicant had made claims in the Entry Interview that he feared harm on the basis of extended family taking over his land, this would not have been recorded in the Entry Interview record. The failure of the applicant to make this claim in the Entry Interview is the undermining of the truth of the applicant’s claim now there is a risk of harm to the applicant based on extended family wanting to take over the applicant’s family’s land.

7. Secondly, evidence given in the Tribunal hearing by the applicant concerning the movements of his wife are not consistent with written claims, and claims that, at the time the applicant came to Australia, both he and his wife were at risk from the uncle based on the title deeds to the land being in their possession.

8. The Statutory Declaration provided by the applicant to the Tribunal indicates that he and his family fled to his wife’s parents’ village in January 2013, after an altercation with extended family members over the land. The Declaration indicates that at the present time (the date of the Declaration being 10 July 2013) there is a possibility that the applicant’s uncle may find out about the whereabouts of his wife due to the land deeds being in her possession.

9. In the Tribunal hearing, the applicant indicated that his wife returned to his home village, from time to time, since the applicant has travelled to Australia. The applicant indicated that, it was not until the events of November 2014, as evidenced by the media articles, his wife went to live permanently with her parents over concern for her safety.

10. The Tribunal noted to the applicant that evidence that his wife had returned to the home village was not consistent with the written claims that his wife was in danger from the uncle. In response, the applicant indicated that he was the main target, and also indicated that things have cooled down after the applicant came to Australia, but with tensions re-emerging following the November 2014 incident.

11. The Tribunal does not accept these explanations. The Statutory Declaration makes explicit that the applicant’s wife was in danger, causing her to have to live with her parents, out of harm’s way from the uncle. The Statutory Declaration was written in July 2013 and indicates that the wife was in danger at that point in time. That is inconsistent with the claim by the applicant in the hearing that things had cooled down for his wife after the applicant left for Australia.

12. The Tribunal considers that the applicant’s evidence in the hearing that his wife was able to return to his home village is undermining of claims that there is a risk to either the applicant or his wife based on the uncle wanting access to the title deeds.  The evidence is also undermining of the applicant’s credibility generally.

13. Thirdly, the evidence by the applicant in the hearing that his brother [Mr A] (spelled differently at different points in the claims) is currently living in the home village is inconsistent with the statement that has been provided by [Mr A] to the police in November 2014.

14. In the hearing, the Tribunal asked the applicant about the current whereabouts of all of his siblings. The applicant indicated that his brother [Mr A] is currently living in [Village 1] Village, but not on his family land, but in another location in the village with his wife.

15. The Tribunal noted to the applicant that the police report that had been submitted as being provided by Toufiq in November 2014 indicates [Mr A] as stating that he is currently in a refuge, away from his home and family in fear. He indicates that there was no way he can return home.

16. The Tribunal indicated in the hearing that this statement was inconsistent with evidence that [Mr A] is now living in the same village. The applicant responded that [Mr A] is in a different part of the village. When questioned further, the applicant indicated that he is about 3 km away. The Tribunal indicated to the applicant that it found it difficult to accept, that if [Mr A] was in fear of his life, that he would relocate only 3 km away from the uncle.

17. The Tribunal considers that there is an inconsistency between the claimed significant fear of [Mr A] stated in the police report and the fact that he is now living in the same village as his extended family who wish to harm him. This is undermining of the truth of the applicant’s claims in relation to the family land, as well is the veracity of the media reports and statement to the police by [Mr A] in relation to events claimed to have taken place in November 2014.

18. Fourthly, evidence by the applicant in the hearing that [Mr A] was suffering no particular difficulties from the uncle in relation to the land (prior to the claimed events of November 2014) whilst residing in the same village, was not consistent with the applicant being a risk of harm. This is because it might be expected that the uncle would have applied similar pressure to [Mr A] to transfer the land. The applicant acknowledged in the hearing that the land was owned by all brothers.

19. In response, the applicant indicated that [Mr A] was only prepared to transfer the land, if the applicant was agreeable. The applicant indicated that he was the key target of the uncle. The Tribunal does not understand why the applicant would be the sole target. If the land was owned by all brothers, the Tribunal is of the view that the uncle would be applying similar pressure to all brothers, if the applicant claims were true. This is a tangential concern only and of limited adverse weight, but it does buttress more significant credibility concerns.

20. Given these four credibility concerns, the Tribunal does not consider that the applicant has given truthful evidence in relation to the details of a family land dispute. The Tribunal is not satisfied that there is a family land dispute that involves ongoing threats or harm to the applicant and his family from extended family members as claimed. The Tribunal is not satisfied that there was an attack on the applicant and his family by relatives in January 2013 causing the applicant and his family to flee the village for the safety. The Tribunal is not satisfied that there was an attack in November 2014 as claimed.

21. The Tribunal has considered the corroborative evidence of media reports and [Mr A]’s police report but they do not overcome the cumulative effect of the credibility concerns. In particular, the Tribunal notes that evidence by the applicant in the hearing of [Mr A]’s whereabouts is at odds with the nature and consequence of the incident claimed. The Tribunal is not satisfied that those media reports or the police report reflect the truth of the situation.

22. The Tribunal is not satisfied that the applicant or his family fled the local area due to these difficulties. The Tribunal is not satisfied that the applicant’s uncle or other extended family members have an intention to harm the applicant or his family based upon their possession of title deeds to the property, or for any other reason. The Tribunal is not satisfied that there is a real chance of serious or significant harm to the applicant as a result of a family land dispute now or in the reasonably foreseeable future.

23. Given those findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm as a result of a family land dispute.

    Political involvement

24. The record of the applicant’s Entry Interview indicates that he left Bangladesh because of his involvement with Jamaat-e-Islami.  He indicated that he would do petty work for them such as organising meetings in the mosque and inviting people to come to meetings. When asked how that contributed to him leaving, he indicated that there are lots of problems for people supporting Jamaat-e-Islami.  The Awami League now rule the area and do what they want.

25. In the interview with the delegate of the Minister, the applicant referred to having a small position within the party. He indicated that there were 70 supporters in his village who would meet in the local mosque. There would be religious talk and the applicant would be involved in bringing members from other parties. When asked about what the party stood for, the applicant indicated that there was a call to increase the number of voters and the importance of accepting Islam, not harming people, and praying five times a day.

26. In the Tribunal hearing, the applicant confirmed that there were about 70 supporters of Jamaat-e-Ismali in his village, made up of about three families. He indicated that the majority of the population of the village were Awami League supporters.  Meetings of the party occurred at the local mosque about once a month.

27. The Tribunal, in the hearing, asked the applicant to provide information as to the policies and beliefs of Jamaat-e-Islami.  He indicated that they protect people against corruption and harm. He indicated that he did not have much knowledge politically.

28. In the early part of the hearing, the Tribunal asked whether he had faced physical harm due to his political activity. The applicant referred to his uncles who are members of the Awami League beating him up over the land issue. The Tribunal confirmed with the applicant that this was over the land dispute rather than his political beliefs as such.

29. The applicant referred in very general terms to protests and difficulties experienced in protests. The Tribunal sought to have the applicant elaborate, and it was initially difficult in the hearing obtaining more detailed evidence from the applicant concerning protests, the reasons for the protests, and difficulties faced at protests. The applicant did refer to protests about other political parties not being religious. The applicant referred to the chairman of Jamaat-e-Ismali in his village being detained after the applicant had left for Australia.

30. During the course of this discussion, the applicant indicated that his main fear of harm was based on the land issues as opposed to his political involvement. However, later in the hearing when the Tribunal was discussing the potential harm on the basis of political belief, the applicant indicated that one key reason he feared harm was based on his involvement in Jamaat-e-Islami.

31. At the end of the hearing, the Tribunal asked the applicant again to provide more details as to his participation in rallies. The applicant indicated that rallies occurred every six months or every two months. The applicant was not able to articulate in any meaningful way what the rallies were in relation to other than indicting general political issues.

32. The Tribunal asked the applicant as to harm suffered in rallies. The applicant referred to rocks being thrown, people being beaten and bombs going off. The Tribunal asked the applicant if he was ever hurt in a rally, and he indicated that at a rally in 2012 he was pushed over and his leg was hurt and he is still on medication for this.

33. The Tribunal asked about bombs going off at rallies. The applicant indicated that a bomb went off at a rally in 2012. When asked if people were killed, the applicant said that 50 to 60 people were injured. When the applicant was asked if people from Jamaat-e-Islami from his village were injured, the applicant indicated that about eight were injured. When the Tribunal asked about the nature of injuries, the applicant referred to one person he knew having an injury on the head and another person on the chest. When the Tribunal asked for elaboration of the injuries, the applicant indicated that the person with the chest injury may have fallen down and the person with a head injury may have been hit on the head. The Tribunal noted that these did not appear to be injuries caused by a bomb blast. The applicant then indicated that none of the injuries of his fellow Jamaat-e-Ismali were from the bomb blast.

34. When the Tribunal asked the applicant how many rallies he attended where bombs went off, he indicated that it was just the one rally.

35. The Tribunal expressed to the applicant surprise that he never previously indicated attending a political rally at which a bomb went off. The applicant said that he thought he should not mention all these things.

36. The applicant indicated that if he returns to Bangladesh he would wish to continue to be involved in Jammat-e-lslami.

37. Following the hearing, the Tribunal wrote to the applicant in accordance with the procedural requirements of s.424A of the Act. It noted information contained in the record of the Entry Interview held with the applicant on 3 May 2013. It noted that the applicant answered ‘no’ to the question: ‘were you or any members of your family involved in any activities or protests against the government’. The Tribunal noted that this information was relevant because it was inconsistent with the applicant’s evidence in the Tribunal hearing that he had been involved in protests and demonstrations including in which the applicant was injured, and in which a bomb went off and individuals were injured. It noted that the consequence of relying on this information could be to question the applicant’s credibility about his claims of political involvement, claims to have been involved in protests and demonstrations, a bomb going off in one demonstration, and the applicant and other individuals being injured in demonstrations, and whether the applicant has a level of political involvement that would result in him being targeted by authorities.

38. In response, the applicant indicated that he answered ‘no’ to this question because he was scared to admit his involvement with politics in Bangladesh. He thought that if he made such admissions he would face trial due to his political beliefs. The applicant indicated that in the first interview he was under duress and was scared to admit anything about his political belief.

39. The Tribunal has difficulty accepting this explanation. The applicant, in the Entry Interview, claimed that he was a member of Jammat-e-Islmai. The volunteering of that information is not consistent with a claim now that the applicant was reluctant to reveal his political activities.  Given the applicant’s disclosure of this information it is not clear why he would have been further reluctant to disclose participating in protests at which violent activity took place and a bomb went off, and the applicant being injured, were those claims true.

40. Whilst the Tribunal can accept that the Entry Interview may have been a difficult and stressful process, it provided the first opportunity for the applicant to elaborate his claims. The Tribunal finds it difficult to accept that the applicant would understate his claims in the Entry Interview. The applicant has now claimed that he was under duress in the interview, but has provided no elaboration as to how he was placed under duress. Whilst the Tribunal accepts that the interview process may have been stressful for the applicant, it is not satisfied that he was under duress.

41. The Tribunal considers that the applicant has been untruthful in giving evidence to the Tribunal about his political involvement and participation in demonstrations, and being injured in a demonstration. The way that the applicant gave his evidence in the hearing as to involvement in demonstrations and harm suffered by himself and others, did not cause the Tribunal to consider that the applicant was talking from actual experience. Details had to be pried from the applicant, piece by piece. The Tribunal formed the impression that the applicant was concocting a story as he went along.

42. Significantly, untruthfulness of claims by the applicant that he participated in protest rallies and that he and others were injured is suggested by the applicant indicating in the Entry Interview that he had not participated in a new protests against the government. As indicated, the Tribunal is not satisfied with the applicant’s explanation as to why he indicated in the Entry Interview that he had not participated in protests against the government.

43. The Tribunal does not accept that the applicant has ever participated in a political protest and does not accept that he or others have been injured in protests or that a bomb has gone off to protest that the applicant has attended.

44. Given the many credibility issues identified with respect to the applicant’s evidence, the Tribunal has doubts as to whether the applicant has had any involvement in Jamaat-e-Islami. However, giving the applicant the benefit of the doubt, and for the purpose of this decision only, the Tribunal is prepared to accept that the applicant has had a loose, low level and limited connection with Jamaat-e-Islami in his village.  It accepts that this occurred in the context of discussions with other members of his mosque. The Tribunal is not satisfied that the applicant has been involved politically beyond participating in discussions in closed meetings. The Tribunal does not accept the applicant’s claims that he sought to recruit members from other political parties. The Tribunal is not satisfied that the applicant has engaged in any direct activities against the government or in protests (including in light of the information to this effect in the Entry Interview).

45. The Tribunal accepts independent evidence that active members in Jamaat-e-Islami, particularly those involved in protests, are at risk of harm from the Awami League and government authorities, and that members can suffer discrimination and difficulties.

46. In the earlier part of the Tribunal hearing the applicant indicated that his main area of concern was the land issue with his family, rather than involvement in Jamaat-e-Islami. Whilst the applicant, later in the hearing, changed his position to say that his involvement in Jamaat-e-Islami was a key concern, the Tribunal is not satisfied of this given the earlier statement and the cumulative impact of the credibility concerns identified with respect to the applicant’s evidence. Although acknowledging that the applicant reserved the right in his written statement to expand on his claims in the interview, it is telling that the detailed written statement does not refer to harm or a risk of harm based on involvement in Jamaat-e-Islami (other than on the basis that his relatives who wished to harm him because of the land issue belonged to the Awami League).

47. The Tribunal is not satisfied that the applicant has a subjective fear based on his involvement in Jamaat-e-Islmai. The Tribunal is not satisfied that the applicant has faced adverse treatment or discrimination based on his low-level and loose association with the party.

48. The Tribunal considers that if the applicant returns to Bangladesh he will participate in the same low level manner as before, namely being involved in closed meetings. The Tribunal is of the view that the extent of the applicant’s past political involvement has not been such that he has faced a real chance of serious or significant harm, and the Tribunal considers that that would continue to be the situation on the applicant’s return to Bangladesh.

1. The Tribunal is not satisfied that the applicant has, or would, undertake direct activities against the government or be involved in protests. It is not satisfied the applicant would seek to recruit individuals from other parties to Jamaat-e-Islmai.

2. The Tribunal is not satisfied that such limited involvement would result in the applicant being a target of the Awami League or the government such as to lead the applicant facing a real chance of serious or significant harm, including by way of the mistreatment by authorities or discrimination.

3. Given that the claims in the Entry Interview that a family well was stolen by the Awami League and that the applicant was charged with stealing the land of neighbours and beaten were not pursued in either the written claims or in the interview with the delegate, together with the cumulative impact of the credibility concerns identified in relation to the applicant’s evidence, the Tribunal is not satisfied that a well was stolen by the Awami League or that the applicant was charged and beaten in relation to a claim of stealing a neighbours land. The Tribunal is therefore not satisfied that there is a real chance of serious or significant harm to the applicant on these grounds.

4. In summary, the Tribunal is not satisfied that there is a well-founded fear of the applicant being persecuted for a Convention reason for any of the reasons claimed, or for any other reasons.

5. In summary, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm for any of the reasons claimed, or for any other reasons.

6. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

7. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

8. 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

9. 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.

   David McCulloch
   Member