1504440 (Refugee)

[2018] AATA 4092

1504440 (Refugee) [2018] AATA 4092 (28 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1504440

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:F. Simmons

DATE:28 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 February 2018 at 7:43pm

CATCHWORDS
REFUGEE – Protection visa – Bangladesh – political opinion – Bangladesh national party supporter – family attacked by Awami League supporters – actively supports the BNP in Australia  – social media activism – credibility issues – bogus identification documents supplied – conflicting information about the applicant’s name and date of birth – limited weight placed on identity documents – evidence does not indicate the applicant has a national political profile – introduced new claims and evidence at the Tribunal – decision under review affirmed

PRACTICE AND PROCEDURE – 424A letter sent shortly before representative went on leave – extension of time granted – interpreter bias – claims the witness was unable to understand Tribunal’s questions

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 91WA, 424A, 499
Migration Regulations 1994 (Cth), Schedule 2


CASES
BGM16 v MIBP [2017] FCAFC 72
MIAC v SZQRB [2013] FCAFC 33

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). The applicant claims to be a citizen of Bangladesh. He arrived in Australia on 20 May 2014 travelling on a passport issued in the name of [applicant’s name]. According to this passport, the applicant was born on [Date of Birth 1].

2. The applicant applied for the protection visa on 20 June 2014. At the interview with the delegate he produced a birth certificate which stated he was born in [another year 13 years later] and he claimed that this was his true date of birth. He claimed that he was afraid of returning to Bangladesh because he believed that he would be killed or harmed by supporters of the Awami League (AL) because of his support for the Bangladesh Nationalist Party (BNP). The delegate did not accept that his claims were credible and refused to grant him a visa.

3. The determinative issue on review is whether the grant of the visa is prevented by s.91WA because the applicant has provided bogus documents as evidence of his identity, nationality or citizenship, without a reasonable excuse for doing so. Notwithstanding the Tribunal's decision that, for the reasons that follow, the grant of the visa is prevented by s.91WA, the Tribunal has also assessed the substance of the applicant's protection claims for the sake of completeness. The Tribunal has found that the applicant is not a refugee and nor is he owed complementary protection.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. 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.

   Circumstances preventing the grant of the visa

5. Under s.65(1) of the Act, the Minister (or the Tribunal on review) must refuse to grant a visa if the grant is prevented by s.91WA. Section 91WA(1) requires the Minister to refuse to grant a protection visa to an applicant who provides a bogus document as evidence of their identity, nationality or citizenship, or has destroyed or disposed, or caused the destruction or disposal of, documentary evidence of their identity, nationality or citizenship. However, that requirement will not apply if the applicant has a reasonable explanation for the provision, destruction or disposal, and either provides relevant documentary evidence or has taken reasonable steps to provide such evidence: s.91WA(2). Section 91WA and the definition of ‘bogus document’ are extracted in the attachment to this decision.

   Mandatory considerations

6. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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 considered the Department of Foreign Affairs (DFAT) report published on 2 February 2018 and the previous DFAT report published on 5 July 2016.

   BACKGROUND

7. The Tribunal has considered the evidence before the Department and the additional evidence presented to the Tribunal.[1]

   [1] There are no s.438 certificates on the Departmental or Tribunal files.

   Application to the Department

8. In his protection visa application the applicant declares that he was born in [District 1] in Bangladesh on [Date of Birth 2], that he is of the Muslim faith. He declares that he is a citizen of Bangladesh and no other country and that he acquired this citizenship on [Date of Birth 1].[2] He declares that he speaks English and Bengali. He declares that he travelled to Australia holding a Bangladeshi passport issued on [date] 2011 and valid until [date] 2016 which records his date of birth as [Date of Birth 1].  He provided copies of pages of this passport with his application for his protection visa. His application also records that his date of birth (DOB) is [Date of Birth 2] and that the DOB recorded on his passport is [Date of Birth 1]. No explanation is provided for this discrepancy. Asked whether he had any difficulties obtaining a travel document (such as a passport) in his home country, the applicant responded no.

   [2] Departmental file, folio 66.

9. According to his protection visa application, the applicant departed Bangladesh on [date] April 2011. He was issued a single entry visa to [Country 1] on 12 April 2011 in Dhaka. He was subsequently issued an employment pass on 15 May 2011 in [Country 1], which permitted him to stay in [Country 1] until 15 May 2013 for employment as a ‘[professional]’ with [Company 1].[3]  On 17 October 2013 this visa was extended until 15 May 2015.[4]

   [3] Departmental file, folio 9.

   [4] Departmental file, folio 5.

10. According to his protection visa application form, between May 2011 and May 2014 the applicant worked as a supervisor at a [workplace] in [Country 1]. During this period the applicant travelled in and out of [Country 1] to [Country 2], [Country 3], [Country 4] and Bangladesh. Between 2009 and 2011 he studied, but did not complete, a Diploma of [a particular discipline] at [College].  His parents and [siblings] live in Bangladesh.

11. In the statement of claims that accompanies his application the applicant states:

    I was forced to flee Bangladesh as I was believed to be a loyalist of Jamaat-e-Islami which was not true [BNP – changed at protection interview – 25/2]. I was also opposed to the ruling party, as I was not blind to their oppressing and murdering our own people – my opposition was undoubtedly known. My father and I were systematically harassed on the basis that I was a Jamaat-e-Islami supporter and opposed to Sheikh Hasina’s government and I knew I was no longer safe to remain in Bangladesh. Thankfully I secured an employment sponsor in [Country 1] and was granted a business visa. This visa is due to cease on 15 May 2015.

    I took a one month vacation from my work from October – November 2013 so I could return to Bangladesh to visit my family as I missed them dearly. Once I returned to Bangladesh it was then that I realised the serious danger I was in. I was not aware that Jamaat-E Islami top leader, Abdul Quader Molla, was due to be hung to his death in December 2013 therefore the violent clashes in my home country were at its peak as was the government’s aim to incriminate innocent civilians such as myself for being loyalists to Jamaat-el-Islami. The violent clashes which ensued placed my life in immediate danger and I was also fearful of what would happen to me in the instance I was arrested.

    The visits to my family home by AWAMI League police increased in frequency and the harassment/persecution I had experienced prior to my departure had evidently intensified. I feared for my life and returned to [Country 1] with relief. My aim at this point in time was to complete my employment by 2015 and seek to have my employment contract renewed so I could avoid returning to Bangladesh.

    My employment in [Country 1] was going well and I sought to take a vacation to Australia for a one month period. It was my understanding at the time that I had been granted one month leave from my job. My employer issued a letter to support my application to travel to Australia which did not specify the amount of leave I had been granted, however I confirmed my one month leave in a personal discussion that I had with my boss. It was to my surprise then that on 10 June 2014 my employer informed me that they did not want me to return to [Country 1] to work for them and they cancelled their sponsorship of me, in turn cancelling my visa to return to [Country 1].

    This left me in a fearful state. I had already purchased a ticket to return to [Country 1] for 30 May as I figured I would only spend ten days in Australia, however upon my arrival I decided to stay for the whole one month period I had approved (see attached booking details with [airline details deleted]). I did not think that my decision to remain in Australia would have such a drastic effect on my wellbeing and safety.

    I currently reside in Australia and do not have the option of returning to [Country 1] as I initially believed. I cannot return to Bangladesh at all as I fear for my life if I was compelled to return. In Bangladesh at present the Awami League Party are mercilessly murdering the Muslim masses (as they are a secular movement). I have attached hereto a copy of Facebook post from my Facebook depicting a video of Awami League’s crimes against the Bangladeshi people. It is something I feel strongly about and I have continued speaking out against them while I have been in Australia. I am not only fearful that this information is known to Bangladeshi officials, but considering the current political climate in Bangladesh I have no doubt in my mind of the persecution which awaits me.

12. The applicant was interviewed by the delegate and the Tribunal has listened to this interview. Although the interview occurred with the assistance of an interpreter, the applicant sometimes gave evidence in English.  The applicant told the delegate that, as a result of a misunderstanding with the migration agent who represented him before the Department, his statement of claims wrongly recorded that he was forced to flee Bangladesh because he was believed to be a loyalist of Jamaat e Islami (JI). He claimed that he was beaten up because he was BNP supporter. He confirmed that any reference to him having an association was JI was wrong. He confirmed that he did not wish to change anything else in his statement. Later, he stated his father is very religious and supports JI but is not a member of JI.

13. The applicant’s passport states he was born on [Date of Birth 1]. He told the delegate this date was recorded as a result of a ‘mistake’ by the Bangladeshi government: his true date of birth was [Date of Birth 2]. He did not make any effort to correct this mistake. When the delegate noted she did not have a primary identity document with his true date of birth, the applicant submitted a birth certificate issued [in] June 2014 in the name of [applicant’s first name], which records his date of birth as [Date of Birth 3]. He told the delegate that his uncle sent him the birth certificate. He claimed that he did not have any other documents as his home was burnt [in] January 2015 and his family are in hiding.

14. The applicant’s [Country 1] employment pass states he is a [professional]. When the delegate put to him that he never studied to be [that profession], he stated that he trained at a polytechnic where they teach skills in [that] area. Asked what he studied, he said [a discipline related to his profession]. Asked how he did this, he said they gave him basic knowledge about [a certain line of] work. Asked what work he was involved in, he stated he did supervising and added he worked for a [related] company, on a [project] for three years.  Asked why his application said he was working at a [workplace] for four years, he said he did this as a part-time job.  In Australia the applicant works in [a different role].

15. The applicant told the delegate that a friend helped him apply for [a business] visa in [Country 1]. Asked if he obtained this visa by providing false information to the [Country 1] government, he said his main objective was to leave Bangladesh. Asked why he returned to Bangladesh in 2013, he said his mother was sick. He confirmed he left Bangladesh in April 2011 and he denied deliberately using a false document with a false DOB to do so.  

16. The applicant told the delegate he started supporting the BNP from [March] 2010. He was at a college for two years and he signed up for the BNP with his friends.  Asked about his political activity between March 2010 and April 2011, he said that he invited people to support the BNP as he was [an official] in his village, a position he obtained because he was very active in the party. He met [an official] in his upazila,[5] [Mr A]. The applicant claimed that AL supporters beat him up behind a school [in] November 2010 and broke his bones. He claimed that the AL hated him and wanted to kill him because he was active with the BNP.

    [5] An upazila is the second lowest tier of regional administration. Bangladesh has 492 upazilas < >

17. The delegate put to the applicant that he re-entered Bangladesh in 2013 at the height of the AL’s power and this suggested he did not fear for his life. The applicant said that he had three months of leave but he could not stay for this period because of the pressure from the AL. Asked what pressure he faced from the AL, he said that he couldn’t go to his village. His father was a business man but his father cannot work because his shop was robbed because of political issues. The applicant told the delegate that he could provide a letter of support from the BNP but he needed time to obtain documents to support his case. The delegate declined to provide the applicant with additional time, noting that he was represented and that, his protection visa application did not indicate that he was waiting on additional documents to support his claims.

18. The delegate found that the applicant was not a credible witness and refused to grant him a protection visa. The delegate did not accept that the applicant was born in [Date of birth 1] or that the birth certificate was a genuine document. The delegate did not accept that he held [a] degree ([deleted]) and found that he had provided false information to the [Country 1] government to obtain an immigration outcome. The delegate noted reports that there is a ‘significant prevalence of fraudulent documents [in Bangladesh] including passports, birth certificates, bank statements, taxation documents, business documents , school documents, marriage certificates’ and that there is reportedly ‘no difficulty at all for anyone to obtain these documents’.[6] The delegate did not accept that the applicant held a high-ranking BNP position in Bangladesh, or that he was a BNP activist, or that he has been imputed with support for either the BNP or JI.

    [6] Immigration and Refugee Board of Canada (IRBC), ‘Bangladesh: Reports of fraudulent documents, 20 September 2010’, BGD103532.E

    Application for review

19. The applicant provided a copy of the delegate’s decision record with his application. The applicant was represented in relation to review by a registered migration agent.  The Tribunal has considered large volume of additional evidence provided to the Tribunal and, where relevant, this evidence is discussed further below in the Findings and Reasons.

    Summary of written claims  

20. The applicant’s claims (as set out in his statutory declaration dated 26 September 2016[7]  and submissions dated 23 September 2016)[8]  can be summarised as follows:

    [7] Tribunal file, folios 184–181.

    [8] Tribunal file, folios 33–71.

    ·The applicant’s former migration agent did not give him a copy of his statement and failed to include sufficient information with his application for protection.

    ·The applicant did not provide the correct date of birth when he applied for an Australian visa or a [Country 1] visa. He is also not a [professional].

    ·On the advice of [Mr A] when he decided to leave Bangladesh, he contacted an agent to obtain a visa to go to [Country 1]. He used his passport to apply for a visa to travel to Australia. He came to Australia to seek asylum so this should not be held against him.

    ·Sometimes his name is mentioned as [his first name], sometimes as [Applicant's Alias 1] and sometimes as his father’s [name]. He was born on [Date of Birth 2] in [an area of District 1], Bangladesh.

    ·In mid-2009 he started supporting the Jatiotabadi Chatra Dal (JCD) student wing of the BNP. At that time, he did not join the BNP but his association enlightened him about the BNP.  After 57 army officers were killed because of their suspected links to the BNP he sympathised with the BNP. He was also attracted to the BNP because of their policy of encouraging women’s participation in BNP committees and their focus on developing the local economy and promoting nationalism. 

    ·By this time the applicant was associating with [Mr A]. After he left college in 2009 his involvement with [Mr A] increased. [Mr A] advised him to join the main BNP and hold a position in the local BNP.

    ·He joined the BNP [in] March 2010 by filling in a form and paying 5 taka and on this day he was elected [an official] of the BNP in his upazila. Since he was a close associate of [Mr A] and actively involved in the BNP since 2009, the local Upazila decided to include him in their committee. Because of his close association with [Mr A] he was looked upon as a future leader.

    ·[In] November 2010 when he was going home from the market 16 AL people attacked him. He was in hospital for two weeks (his collar bone was broken). His father and [a BNP official] ([Mr B]) went to the police station to lodge a police report, but the police refused to take the report.

    ·[Mr A] advised the applicant to hide and then leave the country. The applicant went to his sister’s home in Comilla and then to his cousin’s place in Sylhet. During this period, [Mr A] contacted an agent. He was asked to provide his birth certificate and the photos. Later [Mr A] advised him that the agent told him that it would not be safe to travel with his real information in the passport.

    ·In February 2011, his father’s shop was attacked and he was accused of belonging to BNP-JI people. His father was not in the shop at the time.

    ·The applicant was able to leave Bangladesh as the agent had made some arrangements in the airport. He called his leader often to talk about political matters and his political activities. He also called his political colleagues, friends and family to encourage them to vote for the BNP.

    ·When he was in [Country 1] he sent money to the BNP in his area. He sent money every three months, 20,000 taka or 10,000 taka. He continued communicating with BNP activists in Bangladesh. In 2013 he requested his employer renew his visa.

    ·In 2013 his mother was seriously sick, she had an operation. He checked with BNP leaders (including [Mr A]) about whether he could return for a short visit.

    ·The applicant returned to Bangladesh in 2013 for 27 days. For the first three days he stayed home. When the local AL activists found out about his arrival they sent threatening letters. He moved to Sylhet and other places before returning to [Country 1]. He had a visa but it was difficult to renew and he applied for an Australian visa.

    ·The applicant arrived in Australia on 20 May 2014. He became involved in the BNP in Australia from July 2014. He also shared and commented upon human rights abuses in Bangladesh. Once a local person sent him a message sarcastically asking when he was coming back to Bangladesh. He blocked this person from his Facebook.

    ·[In] November 2015 AL supporters threw a petrol bomb on his parents’ house in Bangladesh.[9] Their house was destroyed. His parents sustained burns and were admitted to hospital.

    ·Recently [a family member] was abducted in Dhaka.  The abductors demanded money. His family suspects AL are responsible because AL is associated with many instances of extortion by criminal gangs. His uncle has also been attacked and accused of ‘belonging to a family associate with BNP and JI’.

    ·The applicant recently found out his father faced attacks in 2014 and that was why he had undergone operations. This information was previously kept from him because his father did not want him to suffer further mental health issues or return to Bangladesh.

    [9] The applicant subsequently provided a statutory declaration stating there was a ‘typographical error’ about the ‘house burning incident’; the house was burned [in] January 2015, not [November] 2015.

1. The applicant claims that he will be harmed because of his political beliefs and activities (supporting the BNP and opposing the AL).  He claims that, due to his political activities, AL supporters consider him as a potential threat to their political survival because they believe that he will enter national level politics due to his association with political leaders. He claims that he used to share and comment on the AL’s inhuman activities on Facebook and, due to his involvement with [a BNP affiliated organisation], he will be perceived as a person who was involved in anti-AL activities overseas with Bangladesh diaspora members. [10] 

   [10]  See also Tribunal file, folios 33–71.

2. The applicant also claims that, because of his father’s affiliation with JI, he would be perceived as a JI supporter.

   The Tribunal hearings

3. The applicant first appeared before the Tribunal on 28 September 2016. This hearing was adjourned and resumed on 7 November 2016 with a different interpreter.[11] After the applicant complained about the conduct of the interpreter on 7 November 2016 the hearing was again adjourned and resumed with a different interpreter on 1 December 2016. The applicant appeared at a further hearing on 23 October 2017. The Tribunal also received oral evidence from [Mr A] and [Mr C]. The Tribunal hearings were conducted with the assistance of interpreters in the Bengali and English languages. The applicant was represented in relation to the review.  Where relevant the applicant’s oral evidence and the testimony of [Mr A] and [Mr C], it is discussed below in the Findings and Reasons.

   [11] At the hearing on 28 September 2016 it became apparent to the Tribunal that, as a result of administrative oversight, pre-hearing submissions had not been placed on the Tribunal’s file. The Tribunal adjourned the hearing to ensure it had an opportunity to properly consider the documents before the hearing was resumed. Contrary to the applicant’s submissions, no procedural unfairness results to the applicant from the decision to adjourn the hearing and resume at a later date. 

   Documentary evidence

4. The applicant has submitted a large number of documents to the Tribunal. These include:

   ·The applicant’s BNP membership card which, according to the translation, was issued on [date]/03/2010 and expired on [date]/03/2011,[12] and identifies him as [an official] of the upazila committee.

   ·A newspaper report which, according to the translation, was published [in] November 2010 by [a newspaper] under the headline ‘[deleted]’.

   ·Images of a property, said to belong to the applicant’s parents, destroyed by fire.

   ·Numerous medical documents[13] said to relate to the applicant’s father ([name deleted]), his mother (named as [name deleted]), and his uncle (a [Mr D]); 

   ·Pages from a Facebook account belonging to ‘[Applicant’s Alias 2]’, which the applicant states is his ‘Facebook name’. [14]

   ·National identity cards said to belong to the applicant’s father [and] his mother [and] educational certificates said to have been awarded to the applicant.

   [12] Tribunal file, folios 122–125.

   [13] Tribunal file, folios 90–120.

   [14] Tribunal file, folios 203–211.

   Witness testimony

5. Before the first hearing the applicant requested the Tribunal take evidence via telephone from two witnesses: [Mr C], [an office bearer] of [a BNP affiliated organisation], and a witness in Bangladesh, [Mr A].[15] The applicant subsequently provided identity documentation for both witnesses and the Tribunal took evidence from [Mr A] on 7 November 2016 and [Mr C] on 1 December 2016.

   [15] Tribunal file, folios 72.

6. The applicant submitted a letter in English from [Mr A] dated 19 September 2016. [Mr A] describes himself as [a senior official] of [District 1] BNP and a ‘former [deleted]’ for the BNP between [date] to [date]. [Mr A] writes that:

   ·He knew the applicant as [an official] from [an area of District 1]. After 2009 he was very active in politics and [in] March 2010 he was elected as upazila [official].

   ·After the applicant received a threatening letter from AL members in November 2010 he contacted [Mr A] for advice. A few days later, [in] November 2010, the applicant was attacked and severely beaten. The media reported this attack.

   ·[Mr A] organised a visa to send the applicant overseas to save his life. After the AL heard about him leaving, they went to his house several times. His father’s shop was looted and damaged [in] February 2011.

   ·[Mr A] managed to send the applicant to [Country 1] in May 2011. The applicant remained in contact with [Mr A] and sent him money for the party. In November 2013 he returned to Bangladesh to visit his mother when she was hospitalised.

   ·Within three days, AL members threatened him and, as a result, he went to his sister’s house and then back to [Country 1]. His father was attacked [in] July 2014 and had operations in Dhaka multiple times.

   ·The applicant told [Mr A] that one of the AL leaders kept threatening him over social media. [In] January 2015 AL members burnt his house. AL members also attacked his uncle [in] September 2016 trying to find about the applicant. 

   ·A few weeks ago he heard that these groups kidnapped the applicant’s [family member] and it took a huge amount of money to get her back. He has asked [Mr C], [an official] of [a BNP affiliated organisation] in Australia, to help him obtain protection from the Australian government.

7. The applicant submitted letters from [Mr A] dated 27 October 2017 and 22 January 2017.[16] In the letter dated 27 October 2017 [Mr A] states ‘[w]e BNP senior leaders advised him to leave the country and manage[d] to get a broker to obtain a passport and visa under different DOB because we feared based on the his name and DOB, the authorities might detect him’.[17]

   [16] Tribunal file, folios 235, 310 (back side)

   [17] Tribunal file, folio 310.

8. The Tribunal has considered the oral and written testimony of [Mr C] in relation to the applicant’s involvement with the BNP in Australia. [Mr C] states the applicant is known to him as a party activist who was officially elected [in] March 2010 as [District 1 official] before becoming a member of [a BNP affiliated organisation] in Australia. He describes the applicant’s contribution to BNP as significant and well known. He asserts that if the applicant returns to Bangladesh he will be subject to a false case, which is filed against BNP activists. He writes that these details have been confirmed with the former BNP [official], [Mr A].

9. The applicant has submitted statements from individuals who are said to be involved in the BNP in Bangladesh and in Australia. The Tribunal has considered:

   ·A statutory declaration purportedly from his father, ‘[name deleted]’ (the father) dated [September] 2016.[18] It can be summarised as follows:

   [18] Tribunal file, folios 83-85; folio 134–137. The applicant submitted multiple copies of this statutory declaration accompanied by two different translations (both obtained in Bangladesh).

   i.The father is a member of JI. After his son was assaulted in November 2010 he went to the police, but as the police are controlled by the AL they refused to accept the case.

   ii.The AL could not find his son but they looted his shop in [the] Bazar [in] February 2011.

   iii.In 2013 his son returned to Bangladesh and received a written death threat.

   iv.[In] February 2014 the AL attacked him after they asked about the applicant. He recovered after undergoing two operations.

   v.[In] January 2015 a group from the ruling AL branch set fire to his house. He and his wife received treatment for burns in the hospital.

   vi.[In] September 2016 his [brother] returned to Bangladesh from [another country] and the AL inquired about the applicant’s whereabouts. His [brother] was attacked by the AL [in] September 2016.

   vii.The AL has been filing false cases to cover up their misdeeds. His son was an active supporter and local leader of the BNP. He believes the AL are conducting a combing operation with police to find and kill him.

   ·A letter dated [September] 2016 from the Secretary of [the] Bazar stating that the father informed him that on 27/02/2011 ‘local Awami miscreants’ looted his shop.

   ·A letter dated 15 September 2016, addressed to the father and signed by [the] President Bangladesh ‘Jamat-E-Islam’ [District 1] Branch’. It states that AL supporters have been trying to kill the applicant and his father and it is not safe for his father to stay in his own home.

10. On 28 November 2016 the applicant submitted a supporting letter from [Mr B], Vice President of the BNP in [District 1] and requested the Tribunal take evidence from [Mr B], who is resident in Bangladesh.[19]

    [19] Tribunal file, folios 218-217, 295-296 (copies of a national identity card in the name of [Mr B]).

11. In October 2017 the applicant submitted further supporting letters, including”

    ·A statement dated [October] 2017 from [Mr E], [office bearer], [BNP related group Australia].[20] 

    ·Statement from [a named official], BNP, dated 16 October 2017[21] declaring that the applicant is ‘on the list of harassment by ruling party member and the police as well’ and that ‘due to his political activities, he has been ‘fleeing around to escape inhuman threats from several quarters’.

    ·Statement dated 17 October 2017 from [an] executive member of the BNP from [District 1] and member of the National Executive Committee of the BNP, declaring that the applicant, his parents and his relatives ‘have been targeted numerous times’ by AL members, ‘‘with several attempts causing bodily harm’ and that the applicant was advised by BNP leaders to leave Bangladesh and not to return as he would be in grave danger if he did.

    ·Letters from [an] Advocate, dated 5 November 2017 and 1 December 2017, concerning the veracity of the applicant’s birth certificate.[22]

    [20] Tribunal file, folio 300. In addition to this letter, the applicant  submitted various photographs of BNP meetings and a screen shot of text messages containing details about BNP meetings in Australia (296-299)

    [21] Tribunal file, folio 302.

    [22] Tribunal file, folios 306, 313-314

12. On 17 October 2017, the applicant requested that the Tribunal take evidence from [Mr E], who is resident in Australia and [Mr B], who is resident in Bangladesh. On 23 October 2017 a further request was made to take evidence from [an executive member]. The Tribunal is prepared to accept that the applicant or his family have been able to obtain letters from various BNP politicians in the [District 1] area. However, for the reasons given below, the Tribunal does not accept that the applicant’s case could be assisted by taking oral evidence from these witnesses.    

    Statutory declarations by the applicant, submissions, and country information

    The Tribunal has considered statutory declarations by the applicant,[23] the numerous submissions provided by his representative and the country information referred to therein.[24]

    [23] Statutory declarations dated  26 September 2016, 23 November 2016, 6 February 2017, 21 March 2017 and 6 November 2017

    [24] Submissions dated 21 February 2017, 28 February 2017, 21 March 2017, 6 April 2017, 8 June 2017, 22 June 2017, 4 July 2017, 12 July 2017, 17 July 2017, 1 August 2017, 17 August 2017, 29 August 2017, 17 October 2017, 23 October 2017, 6 November 2017, 4 December 2017, 12 January 2018 and 23 January 2018, 26 February 2017.

13. Bangladesh has a two-party system in which power alternates between political coalitions led by the AL or the BNP. According to the European Union’s Election Observation Mission, authorities in the 2014 national election failed to create the necessary conditions for transparent, inclusive and credible elections. The BNP boycotted the election, leading to a landslide victory for the AL, which won 234 seats (153 of which were uncontested).

14. With respect to the risks facing opposition political activists, the Tribunal acknowledges that independent sources, including the most recent DFAT report published on 2 February 2018, indicates that Bangladesh is prone to high levels of politically motivated violence. [25]  DFAT assesses that under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges and travel bans. Active members of opposition political parties and auxiliary organisations who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. [26] This risk is elevated around times of heightened political tension, including elections.

    [25] DFAT, DFAT Country Information Report Bangladesh, 2 February 2018; Submissions dated 26 February 2017..

    [26] DFAT, DFAT Country Information Report Bangladesh, 2 February 2018; Submissions dated 26 February 2017;

15. Independent reports, including from Odhikar, indicate that that a current and recurring trend in Bangladesh involves activists and leaders of the ruling party attacking opposition activists and leaders with effective impunity due to the government practice of using such law enforcement agencies to suppress its political opponents and critics.  Furthermore, as noted in the applicant’s submissions, while reports indicate that there is a functioning criminal justice system in Bangladesh, the effectiveness of police is undermined by a lack of basic resources, inefficiency and endemic corruption.[27]  Organs of state protection are subject to corruption and politicisation. [28]

    [27] Tribunal file, folio 61-60

    [28] DFAT, DFAT Country Information Report Bangladesh, 2 February 2018; Submissions dated 26 February 2017;

16. DFAT reports that there is a high prevalence of passport and birth certificate fraud.[29]

    FINDINGS AND REASONS

    [29] As noted above, the Tribunal has considered the DFAT report published on 2 February 2018. With respect to the high prevalence of passport fraud and birth certificate fraud, this report reiterates the information published in the 2016 report. See: DFAT, DFAT Country Information Report Bangladesh, 5 July 2016, CIS38A80121206; DFAT, DFAT Country Information Report Bangladesh, 2 February 2018.

    Nationality

17. The applicant has claimed that he is a citizen of Bangladesh and no other country. His protection visa application was accompanied by copies of a Bangladeshi passport ([number deleted]) which records his name as [applicant’s name] and his DOB as [Date of Birth 1].[30] This passport was issued on [date] 2011 and is valid until [date] 2016.  The passport contains a multiple entry visa for [Country 1] that was issued in the applicant’s name [in] April 2011 in Dhaka as an ‘employment pass’. 

    [30] Departmental file, folios 1-16.

18. The applicant provided a birth certificate issued [in] June 2014 which records his name as [first name deleted] and his DOB as [Date of Birth 2].[31]  The details contained on the birth certificate match the details recorded on the Bangladesh online Birth Registration Information System (BRIS).

    [31] Departmental file, folio 79.

19. For the reasons that follow, the Tribunal has found the passport the applicant has provided is a bogus document. Notwithstanding this finding, the applicant speaks Bengali, is familiar with places and people in Bangladesh, and has consistently claimed to be a citizen of Bangladesh and no other country. For the purpose of the decision and in the absence of any contrary evidence, the Tribunal accepts that the applicant is a national of Bangladesh and that his identity is as he claimed before the Tribunal. Bangladesh is therefore the country of reference for the purpose of assessing his refugee claims, and the receiving country when assessing his eligibility for complementary protection.

    Credibility assessment

20. In assessing the applicant’s evidence and claims, the Tribunal has had regard to the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility for use in protection visa cases. The Tribunal member was unavailable for a significant part of 2017 and regrets the delay in finalising this matter. Before making a decision the Tribunal has recently reviewed the audio recordings of all the hearings and the departmental interview, as well as all the documentary evidence on the Departmental and Tribunal file to ensure the evidence upon which its findings are based are accurate.

    The applicant’s mental health

21. The Tribunal has had regard to the evidence concerning the applicant’s mental health in assessing his evidence. On 27 September 2016 [Dr F], a consultant psychiatrist, diagnosed the applicant with post-traumatic stress disorder (PTSD) and major depression. In a report dated [September] 2016 ([Dr F]’s report), [Dr F] records that the applicant told him that at [a young age] he joined the BNP and, as a result, ‘he was persecuted and tortured by the authorities’, causing him to flee – initially to [Country 1] and later to Australia. In [Dr F]’s opinion the applicant’s symptoms are consistent with an ‘exacerbation of a pre-existing PTSD and depressive illness in the context of a specific trigger’, which is identified as ‘the threat of deportation back to Bangladesh and his sense of an imminent return to persecution’. [Dr F] could not find compelling evidence of a psychotic illness. [Dr F] notes that he plans to see the applicant again in a few weeks’ time.[32]

    [32] Tribunal file, folios 188–189.

22. [Dr F]’s report, which was prepared after one meeting with the applicant, records that the applicant ‘was given a protection visa’ and then ‘his acute symptoms began approximately one month ago … [when he received a letter] … from the Immigration Tribunal threatening him with the cessation of his visa and consequent deportation’. Setting aside the fact that this is not an accurate description of the applicant’s immigration history or the hearing invitation, the Tribunal observes that [Dr F]’s report reflects what the applicant has told [Dr F] about his experiences in Bangladesh on one occasion just days before he was scheduled to attend a hearing in relation to his application to review the Department’s decision to refuse to grant him a protection visa. Having considered the contents of report as well as the context in which the applicant provided information to [Dr F], [Dr F]’s report does not satisfy the Tribunal that any mental health issues suffered by the applicant are attributable to the experiences that he claims led him to leave Bangladesh or his claimed fear of returning there.

23. The Tribunal has had regard to the applicant’s evidence that his mental health has been adversely affected by the stress resulting from the review process and ‘recollecting past events’.[33] Other than [Dr F]’s report, no other medical reports about the applicant have been submitted. The Tribunal accepts that the applicant is deeply invested in the outcome of this proceeding and that he was nervous and stressed when he appeared before the Tribunal. The Tribunal accepts that, in the case of the second hearing, this stress may have been exacerbated by the applicant’s concerns about the interpreter. Having considered the medical evidence and having observed the applicant give evidence, the Tribunal is satisfied that he was able to understand and respond to the Tribunal’s questions and that he has had a meaningful opportunity to put forward evidence and arguments in support of his case.

    Other matters

    [33] Tribunal file, folio 251-251 (statutory declaration 21 March 2017).

24. The applicant has raised concerns that he has not been afforded a fair hearing and that he was denied access to his legal representative because a 424A letter was sent shortly before his representative was due to take leave. The Tribunal is satisfied that the applicant has had multiple opportunities to put forward evidence and arguments in support of his case. In particular, the Tribunal notes:

    ·At the hearing on 7 November 2016 the applicant complained about the behaviour of the interpreter and adequacy of the interpretation.[34] In response to this complaint, the Tribunal adjourned the hearing and undertook to resume the hearing with a different interpreter. The Tribunal also invited the applicant to make submissions about the impact of the interpreter on his capacity to give evidence. In a statutory declaration dated 23 November 2016 the applicant stated he was unable to provide his evidence at the hearing on 7 November 2016 in a ‘just and fair manner’ due to the behaviour of the interpreter. He claimed that the interpreter had, through her negative gestures, caused him depression and stress, which had undermined his evidence as if the interpreter indicated through her gestures that she did not believe his story; this would ‘obviously affect the decision maker’s mind’.  The statutory declaration identifies two errors in interpretation, one was corrected at the hearing, the other is not significant.[35] In a declaration dated 6 February 2017, the applicant identified further errors in interpretation in exchanges that occurred with the witness, [Mr A].

    ·The interpreter plays an important role in assisting the Tribunal and the applicant to communicate but, as the Tribunal explained to the applicant, the interpreter does not provide the Tribunal with advice or influence the Tribunal’s decision-making. The Tribunal considers it is clear from the applicant’s communications with the Tribunal that he can speak, read and write in English and, at times, he elected to respond to the Tribunal’s questions in English. However, having regard to the concerns that have been raised about the interpreter at the hearing on 7 November 2016, and the fact that he has had further opportunities to provide evidence and arguments on 1 December 2016 and 23 October 2017, and has submitted additional submissions and witness statements, including from [Mr A], the Tribunal has not relied adversely on information provided at the hearing on 7 November 2017 in assessing the applicant’s claims.  

    ·The applicant has complained that a letter sent to him pursuant to s 424A was sent shortly before his representative was due to take annual leave. The Tribunal granted him a short extension of time to respond to this letter but, for the reasons set out in its response to the applicant’s request for an extension, it could not provide the longer extension of time requested by the applicant.[36] The representative is a migration agent at an immigration firm. The applicant provided a lengthy statutory declaration in response to the 424A invitation and the language used in this declaration suggests that it was drafted with legal assistance.[37] In any event, the Tribunal subsequently received further declarations as well as multiple submissions from the applicant’s representative. The applicant also appeared at a further hearing on 23 October 2017. The Tribunal rejects the suggestion that the applicant has been denied access to legal representation or that the requirement that he respond to the 424A letter within the prescribed time periods have resulted in any practical injustice to the applicant.

    [34] At the commencement of each hearing the applicant was advised that if he had any problems with the interpreter he should advise the Tribunal straight away. This complaint was made after an adjournment  to enable the applicant to speak privately with his representative. At this time the Tribunal had received over two hours of oral evidence. 

    [35] The applicant submitted that (1), [Mr A] said maybe he has a Facebook but the interpreter said he had a Facebook account; that is, [Mr A] was not sure whether he had a Facebook account, whereas the interpreter stated he confirmed that he has a Facebook account; (2), when he said 57 army personnel were killed, the interpreter said 26.

    [36] Tribunal file, folio 232.

    [37] See, for example, Tribunal file, folio 241 (the applicant’s statutory declaration, which is made in English, states: ‘I understand from my representative that the Tribunal is an inquisitorial decision-making body, which needs to conduct the hearing in a fair manner providing adequate and maximum opportunity to the refugee applicant to articulate his case. It is my legitimate expectation that I would receive a fair hearing’.)

    Is the grant of the visa prevented by s.91WA?

1. The issue in this case is whether the grant of the visa is prevented by s.91WA because the applicant has provided bogus documents as evidence of his identity, nationality or citizenship, without a reasonable excuse for doing so.

   Did the applicant provide a bogus document as evidence of his identity?

2. The Tribunal finds that when the applicant applied for a protection visa on 20 June 2014 he provided copies of a Bangladeshi passport [number deleted] which he claims was issued in his name and which bears a photograph of the applicant as evidence of his identity, nationality and citizenship.[38] This passport has been retained by the Department on the basis that the applicant has declared the date of birth contained therein is not his true date of birth and that the [Country 1] Immigration multiple entry visa evidenced therein is now declared to have been granted on the basis of false and misleading professional qualifications.

   [38] Departmental file, folios 58–62. 

3. The applicant has told the Department and the Tribunal that his passport, which states he was born on [Date of Birth 1], contains false information about his date of birth.  

4. At the hearing on 27 October 2017 the applicant declared that his name is [first name deleted] and his date of birth is [Date of Birth 3] and he did not have any other names. Asked why his passport recorded his name as [applicant’s name] he stated that his passport recorded his father’s name, [name deleted]. The Tribunal notes that in his statutory declarations the applicant has declared that he has been known by the name [Applicant’s Alias 1] and that his name is [applicant’s name].[39]  He has acknowledged that he has a Facebook page in the name of [Applicant’s Alias 2]. He claimed his maternal uncle sometimes calls him [by his Alias 2].

   [39] Tribunal file, folio 310.

5. The Tribunal put to the applicant that, based on the evidence he had provided, it appeared that his passport was a bogus document as it recorded a date of birth that was not, in fact, his true date of birth. The applicant claimed all the other details in his passport were correct. It was put to the applicant that given he had provided two identity documents with conflicting information about his date of birth and stated that the information in the passport about his date of birth is false, the Tribunal might reasonably suspect that the passport and/or the birth certificate are bogus documents.  This suspicion is reasonable because the applicant has stated that the date of birth in his passport is not his true date of birth and he has produced two identity documents with conflicting information about his date of birth.

6. The applicant told the Tribunal if he had not provided the Bangladeshi passport he could not have saved his life. He maintained the birth certificate was a genuine document.

7. The Tribunal has considered the applicant’s evidence about how he obtained the identity documentation he has provided to the Department and the Tribunal.

   ·At the hearing on 28 September 2016 he said he submitted his birth certificate and passport photo to [Mr A] so they could send him to [Country 1]. He gave evidence that:

   i.His birth certificate stated he was born in [the later year] as had previous birth certificates issued to him in 2009 and 2011 (he claimed he did not keep copies of the earlier birth certificates).

   ii.He was never issued with a birth certificate that stated his DOB was in [Date of birth 1].

   iii.He never possessed a national identity card. 

   iv.The passport he used to travel out of Bangladesh was a genuine passport.

   ·The Tribunal put to the applicant to obtain a passport he had to provide a national identity card or a birth certificate.[40]  The applicant was asked how he obtained a passport that said he was born in [Date of birth 1] if his birth certificate stated he was born in [the later year].

   ·The applicant claimed he had no knowledge of how his passport was made as he had provided his documents to others and it was all arranged through an agent. He claimed he submitted his documents to a [political] leader and they managed to send him out of the country.

   ·The applicant submitted his birth certificate to the Department because he did not want to live with a false identity. He further submitted that the passport was issued in respect of him, and the only false information it contains is his DOB.

   ·Asked whether, to his knowledge, his passport was fraudulently obtained, he claimed he was given his passport and plane ticket and told to leave and he did not really know how the passport was obtained.

   ·The applicant claimed the birth certificate he has submitted is a genuine document. He claims that this certificate was also obtained by [Mr A].

   [40] DFAT, DFAT Country Information Report Bangladesh, 2 February 2018 p.37; DFAT, DFAT Country Information Report Bangladesh, 5 July 2016, CIS38A80121206, p.24.

8. The delegate found that the birth certificate was not a genuine document.

9. The Tribunal attempted to verify his birth certificate using the online Birth Registration Information System (BRIS) of Bangladesh. There was a match for the identification number and date of birth displayed on the birth certificate provided to the Department.

10. The BRIS system was introduced in 2001; however DFAT reports that people are still able to apply for birth certificates without any supporting documentation and there is a high prevalence of document fraud in relation to birth certificates.[41]

    [41] DFAT, DFAT Country Information Report Bangladesh, 5 July 2016, CIS38A80121206 p.23; DFAT, DFAT Country Information Report Bangladesh, 2 February 2018, p.36.

11. The Tribunal accepts the applicant’s submission that his appearance would suggest that he was born in around [the later year] rather than in [Date of birth 1].

12. The Tribunal notes that between April 2011 and May 2014 the applicant was usually resident in [Country 1] and held a temporary visa that was granted on the basis that he held a qualification [that] he now says he never had.

13. The Tribunal has also considered the submissions and educational certificates   that the applicant has provided in support of his claims that the Bangladeshi birth certificate is a genuine document, as well as the national identity cards he has provided for his parents. The Tribunal places limited weight on these documents: the documentation the applicant has provided in relation to his parents varies considerably in relation to the spelling of his parents’ name and their ages and, as discussed with the applicant, independent sources indicate that fraudulent documentation is readily available in Bangladesh. Nor does the Tribunal find persuasive the applicant’s claim that [Mr A] obtained the birth certificate for him.

14. Nonetheless, there is no apparent advantage to the applicant disclosing the date of birth on his passport is not his true date of birth.  For the purpose of this decision, the Tribunal is prepared to accept that the birth certificate may be a genuine document and that the applicant’s true date of birth is [Date of Birth 3].

15. The Tribunal finds that the information contained about the applicant’s date of birth in his passport is false and his true date of birth is not [Date of Birth 1].

16. As discussed with the applicant, DFAT reports that there is a high prevalence of document fraud in relation to passports. According to DFAT:

    Adults applying for a passport must have a valid NIC or birth registration certificate with a 17-digit birth registration number. Applicants must provide biometric data (fingerprints and photographs) to a passport office before lodging their application. A local police officer must verify an individual’s identity prior to lodging their application. Applicants can obtain a birth registration number by declaring their name and date of birth in person or via the BRIS system. While the Government introduced machine-readable passports and established a passport database in 2010, there is a high prevalence of document fraud in relation to passports. [42]

    [42] DFAT, DFAT Country Information Report Bangladesh, 2 February 2018 p.37; DFAT, DFAT Country Information Report Bangladesh, 5 July 2016, CIS38A80121206, p.24.

17. The applicant claims that he does not know how the passport was obtained. The Tribunal accepts that the passport, which appears to be a legitimately manufactured document[43], records false information about the applicant’s date of birth.  

    [43] Departmental file, folio 72-77. The Tribunal has considered the documentation examination report that appears on the Departmental file. As discussed with the applicant, the forensic document examiner expresses the view that the passport is a ‘legitimately manufactured document, personalised in an appropriate manner, and is unaltered’, an opinion which was based on the manufacture and construction of the document and which did not verify the legitimacy of the issue or the information contained therein’.

18. For reasons that are discussed further below, the Tribunal does not accept that the applicant’s evidence about how and why he obtained a passport with false information about his date of birth is credible. In particular, while the passport may have been obtained with the assistance of a broker or agent[44], for the reasons given below, the Tribunal does not accept that the applicant obtained a passport with false information about his date of birth in order to enable him to flee political persecution in Bangladesh. The Tribunal rejects any suggestion that the false information about the applicant’s date of birth on his passport appears as the result of a mistake.

    [44]Immigration and Refugee Board of Canada (IRBC), ‘Bangladesh: Reports of fraudulent documents, 20 September 2010’, BGD103532.E, available at: ( the IRBC reports, citing various sources, that:  ‘In 7 September 2010 … ‘[i]n Bangladesh, those seeking to have false identity documents commonly avail [themselves] of the services of middle persons, or dalal. According to a dalal who was interviewed, an efficient system has developed where applicants pay an additional fee to avoid the hassle of going through the official procedures, particularly for procuring passports. The dalal pays the relevant issuing officer, who in turn pays the special branch of the police for the required verification. Such verification is generally issued regardless of whether the information provided is correct or not... ...; Tribunal folio 9 (delegate’s decision and country information referred to therein)

19. The Tribunal finds that applicant’s passport is a bogus document within the meaning of s.5(1) of the Act. On the evidence before it, the Tribunal reasonably suspects that the passport contains false information about the applicant’s date of birth either because it is a counterfeit document or one that has been fraudulently altered, or that it was obtained because of a false or misleading statement, whether or not made knowingly.

20. Accordingly, the Tribunal finds that Bangladeshi passport number [deleted] issued in the name of [applicant’s first name] is a bogus document, namely a document which is either (a) counterfeit or has been altered by a person who does not have authority to do so; or (b) obtained because of a false or misleading statement, whether or not made knowingly.

21. The Tribunal accepts that in his protection visa application the applicant declared he was born in [the later year]. However, this does not change the fact that he provided a bogus document with his application as evidence of his identity, nationality and citizenship. The applicant did not declare that the passport was a bogus document or provide any other evidence of his claimed identity with his protection visa application. The applicant did not declare that he had any difficulty obtaining this passport in his protection visa application or the written claims that accompanied it. Before the Tribunal the applicant claimed the fact that he did not so was the fault of his former agent, but the Tribunal finds the applicant’s efforts to blame the significant inconsistencies between his evidence to the Department and his evidence to the Tribunal on his former agent to be self-serving and unconvincing. Of particular concern:  he told the delegate that his passport recorded a different date of birth as a result of a ‘mistake’ by the government but before the Tribunal he claimed that false information about his DOB was recorded to enable him to leave Bangladesh without being caught at the airport.

22. On the evidence before it, the Tribunal finds that the applicant provided a bogus document with his protection visa application as evidence of his identity, nationality and citizenship. He has also provided this bogus document to the Department for the purpose of securing a visitor visa.[45]  In BGM16 v MIBP, the Full Federal Court held that s.91WA(1)(a) is directed to the provision of bogus documents during or in connection with an application for a protection visa.[46] This is such a case. Furthermore, while the applicant applied for the protection visa on 20 June 2014 before s.91WA entered into force, this provision applies to protection visa applications not finally determined at the time the provision commenced.[47]

    Does the applicant have a reasonable explanation for providing the bogus documents?

    [45] Departmental file, folio19 (copy of visitor visa grant notice provided by the applicant).

    [46] BGM16 v MIBP [2017] FCAFC 72 (Siopis, Mortimer and Wigney JJ, 5 May 2017), per Mortimer and Wigney JJ at [81]; per Siopis J at [8].

    [47] Item 15(3) of Schedule 1 to the Migration Amendment (Protection and Other Measures) Act 2015, states that s.91WA applies to protection visa applications not finally determined at the time the provision commenced.

23. Having found that the applicant has provided bogus document as evidence of his identity, nationality and citizenship, the Tribunal must now determine whether the applicant has a reasonable explanation for providing the bogus documents.

24. At the hearing on 23 October 2017 the Tribunal explained that, pursuant to s.91WA of the Act, the Minister must refuse to grant a protection visa to an applicant if the Minister is satisfied that the applicant has provided a bogus document as evidence of the applicant’s identity, nationality or citizenship. It also explained that provision does not apply if the Minister, or the Tribunal on review, is satisfied that the applicant has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and either: (i) provides documentary evidence of his or her identity, nationality or citizenship; or (ii) has taken reasonable steps to provide such evidence. The Tribunal noted that s.91WA came into force on 18 April 2015 and it applied to all live review applications at that date and, therefore, it applied to his case.

25. At the hearing, the Tribunal invited the applicant to put forward a ‘reasonable explanation’ in the event that it found the Bangladeshi issue passport to be a bogus document. 

26. Before the Department the applicant claimed that his passport contained a false date of birth because of a mistake by the government.

27. In contrast before the Tribunal the applicant claimed, in essence, that the Bangladeshi passport was obtained on his behalf by BNP political leaders from his local area in order to save his life as it was necessary to hide his identity, otherwise he was at risk of being caught by the authorities at the airport. He claimed that it was the only identification that he had and that this was why he provided this document. He claimed that [Mr A] and an agent arranged his passport. He claimed that he did not know exactly how his passport was obtained and agents working on his behalf did whatever was necessary to obtain the passport. He used this passport because he had no other identity documentation available to him.

28. For the reasons that follow, the Tribunal disbelieves the applicant’s explanation for providing the bogus document. It follows that the Tribunal is not satisfied that he has a reasonable explanation for providing the bogus document.

29. Firstly, the applicant has provided inconsistent evidence about why his passport records false information about his date of birth. Before the Tribunal the applicant claimed that the reason his passport contains a false date of birth was because otherwise he could not have fled Bangladesh as the AL was in power. The applicant claimed that if his passport recorded his true date of birth there was a risk the authorities might catch him at the airport and ‘his senior party leaders needed to change his date of birth to save his life by sending him out of the country’. He claimed that his senior leaders were assisted by an agent and arranged everything. The Tribunal acknowledges that there are reports that BNP opposition figures have been prevented from leaving Bangladesh.[48] However, as discussed with the applicant, in contrast to his evidence to the Tribunal, the applicant told the delegate that his passport had a different date of birth because of a ‘mistake’ by the government. The applicant said that when he left the country he didn’t pay full attention to who made the mistake: his country’s government or his senior leaders or the brokers. It was only later when he asked his senior leaders why they wrote the date of birth wrong that he was told that if they did not do this, they wouldn’t be able to send him out of the country.  The Tribunal is unpersuaded by this explanation. The Tribunal notes the applicant claimed that he could not correct the information about his DOB on his passport because if he did they would catch him. However, this information is difficult to reconcile with the applicant’s evidence that, until he appeared before the Tribunal, he believed that the false information about his DOB was recorded as a result of a mistake by the government. Compounding these concerns: in his protection visa application the applicant declares that he had no difficulty obtaining a passport.

    [48] See, for, example: DFAT, DFAT Country Information Report Bangladesh, 2 February2018, p.35

30. Secondly, the Tribunal finds the applicant’s late claim that the reason his passport contains false information to hide his identity from the authorities in Bangladesh to be highly improbable. Even if his claims were accepted (which for reasons that follow they are not), he has claimed that he was the target of violent attacks because AL supporters in his local area wanted to kill him. According to the applicant’s own evidence, after the attack on [date] November 2010 he remained in Bangladesh until 30 April 2011. While he claims he was hiding (at his sister’s place in Comilla and at his cousin’s place in Syhlat) during his period, the Tribunal found his evidence about the problems he claims he experienced during this period undetailed and unpersuasive. For example, asked what problems he had during this period, he told the Tribunal that he spoke about his political views, they realised he was working for his party again, and they were looking for him. Asked what political activity he was involved in when he was hiding, he said that he used to talk with the leaders and try to find out about that area; he had conversations about what to do and how to do it.  The applicant has not claimed that he has ever been arrested or detained by the Bangladeshi authorities. No credible evidence has been presented that the applicant has ever been subject to any criminal charges (false or otherwise) and, as the Tribunal discussed with the applicant, his own evidence does not indicate he had a national profile as a BNP leader or high profile activist or that he was of any adverse interest to Bangladeshi authorities because of his claimed involvement in the BNP in his upazila in 2010.

1. In this context, the Tribunal has concerns about the credibility of the claim that the reason he left Bangladesh in April 2011 using a passport containing false information about his date of birth because there was a risk that otherwise the authorities would catch him at the airport. According to the applicant’s evidence, all the other information contained in his passport is correct.  At the hearing on 28 September 2016 he initially stated the passport was a genuine passport before telling the Tribunal that he gave the documentation to obtain the passport to others and that he did not know how it was made.  Asked why it was necessary to change his date of birth, given his evidence indicated that he had said he travelled out of the country on a passport issued in his own name, he told the Tribunal that if they gave all the correct information about his identity, the authorities might object to him leaving the country.  However, when challenged about why, when the information in his passport was otherwise correct, changing the DOB would enable him to avoid identification, the applicant’s evidence shifted and he said in Bangladesh the authorities object to a person leaving if they are young.  Asked to clarify why the authorities would not have let him leave the country if he had used his actual date of birth, the applicant responded that the AL was opposed to the BNP and his party leaders thought by adopting this strategy the authorities would not object to him leaving – he was assisted by senior party leaders and agents -- they arranged everything. While DFAT reports that the Bangladeshi authorities sometimes take action to stop BNP leaders and, in some cases, members from leaving the country, the Tribunal finds it improbable that, if BNP political leaders wanted to hide his identity from authorities, the only detail that would be changed on his passport would be his date of birth.

2. Thirdly, the Tribunal considers a more plausible scenario is that the date of birth on the applicant’s passport was falsified to help him obtain an employment pass in [Country 1]. As discussed with the applicant, one of the pre-requisites for the [Country 1] employment pass that he obtained is that the holder must be a graduate with at least five years’ experience in their position.[49] The Tribunal finds that the applicant would not have been granted a [Country 1] employment pass in May 2011 if he held a passport which contained information about his true date of birth as it would have revealed he was [age] years of age. The [Country 1] employment pass visa label contained in the applicant’s passport states that he is a [professional] employed by [Company 1]. Before the Tribunal, the applicant maintained he was employed by [Company 1] but conceded he was not a [professional] and had no qualifications as a [professional]. However, his protection visa application form does not mention his employment at [Company 1], but states he worked at a [workplace]. The applicant sought to explain this apparent inconsistency by claiming he worked at a [company] ([Company 1]) and part-time at a [workplace] but the Tribunal finds this explanation unconvincing. The Tribunal finds the applicant has never worked as a [professional] and does not hold [a related] degree. The Tribunal finds that after the applicant left Bangladesh in April 2011, he spent three years working in [Country 1], during which time he travelled in and out of [Country 1] to [Country 2], [Country 3], [Country 4] and Bangladesh. In this context, the Tribunal is drawn to the conclusion that the applicant, or an agent acting on his behalf, provided false information about his age and qualifications to obtain a [Country 1] employment pass to enable the applicant to work in [Country 1], and doubts the applicant’s claims that he obtained, retained and continued to use a passport that he knew contained false information about his date of birth because he was fleeing political persecution in Bangladesh and had no other identity documentation.

   [49]See Tribunal file, folio 7 (delegate’s decision record and the country information referred to therein ); see also  (an employment pass (category) require degrees and above with at least three years experience in the field or a diploma with at least five years experience in the field );  < >

3. Fourthly, the applicant’s immigration history undermines his claims that he fled Bangladesh because he was afraid of being persecuted. The applicant has claimed that he disclosed that he provided false information in his protection visa application and that the ‘only reason’ he gave wrong information in the passport was to save his life. He claims that the information was provided by the agents and political leaders: his [Country 1] visa was sent to him. While the applicant has denied knowledge of how his passport was obtained and claimed that [Mr A] did what was necessary to ensure he could depart Bangladesh to escape political persecution, the evidence before the Tribunal indicates that the applicant spent over three years working in [Country 1] holding a [Country 1] employment pass that was obtained as a result of the provision of false information to the [Country 1] authorities, including about his age and qualifications. The Tribunal finds that after travelling to [Country 1] in 2011, the applicant remained in [Country 1] holding a temporary employment pass until 2014. During this period his employment pass was renewed, he used his passport to travel to [Country 2], [Country 3], and [Country 4] for tourism purposes, and he also travelled in and out of Bangladesh. The applicant’s evidence was that although he was aware that the passport contained false information about his age, he never sought to rectify this error because he was afraid that, if he did, he would be killed.  However, as noted above, the applicant has used his passport to travel in and out of Bangladesh and his employment pass was renewed in 2013.

4. The Tribunal finds the fact the applicant voluntarily returned to Bangladesh for over a month (the applicant arrived on 27 October 2013 and departed on 2 December 2013) and immediately travelled to their home area undermines his claims that he fears being killed by supporters of the AL or caught by the Bangladeshi authorities and that he fled Bangladesh to save his life after being forced to flee his village. The applicant returned to Bangladesh on 27 October 2013 and departed Bangladesh on 2 December 2013 from Dhaka international airport. The applicant claimed that he was compelled to return because his mother was ill and that his political leader told him it was safe. Even if it is accepted that his mother had a medical operation relating to the treatment of [a medical condition], the applicant’s evidence was that his mother had been released from hospital by the time he returned to Bangladesh. To the extent that the applicant has suggested that he had to return to Bangladesh because his mother was almost dying and/or he was frightened he would not see her again, the Tribunal does not accept this evidence is credible and nor is it supported by the medical documentation he has provided to the Tribunal (the documentation is problematic for the reasons detailed at paragraph 100-101). The Tribunal considers the applicant’s conduct in returning to Bangladesh using a passport he acknowledges he knew contained false information about his DOB undermines his claims that he fled Bangladesh in fear of his life and his claim that he could not rectify the false information contained in his passport because he was afraid of being caught by the Bangladeshi authorities. Also of concern: despite claiming that he was targeted within three days of returning to Bangladesh and that it was impossible to stay at his aunty’s place in Dhaka because of his political profile, the applicant gave evidence he did not depart Bangladesh earlier because his departure flights had already been booked, and the entry and exit stamps on his passport indicate he returned to Bangladesh on 27 October 2013 and did not depart until 2 December 2013, over a month after he first arrived in Bangladesh.

5. Fifthly, the applicant has given inconsistent evidence about why he deliberately deceived authorities in Australia by providing a passport which he knew to contain false information when he applied for a visitor visa to travel to Australia. In a statutory declaration submitted to the Tribunal, the applicant declares that he came to Australia to seek protection and save his life so this should not be held against him. However, this claim is inconsistent with his oral evidence to the Tribunal, which was that he came to Australia for one month but his company were not able to renew his visa. Before the Tribunal the applicant confirmed that he was travelling on a passport that he knew had a false date of birth and he told the Tribunal that he used this information to obtain a visitor visa as he had no other way to prove his identity. In oral evidence to the Tribunal he claimed that he initially travelled to Australia for tourism purposes, not to seek asylum, and it was only after he had arrived in Australia and was informed his temporary [Country 1] employment pass had been cancelled that he decided to seek asylum in Australia. He has also acknowledged travelling to [Country 4], [Country 2] and [Country 3] for tourism purposes.  In the Tribunal’s opinion, the applicant’s immigration history suggests that the applicant deliberately obtained and retained  a passport that contained false information about his date of birth for the purpose of obtaining a favourable immigration outcome from the [Country 1] government, that is, a temporary [Country 1] work permit visa, and not because he feared persecution in Bangladesh.

6. The Tribunal does not accept that the applicant obtained a bogus document to enable him to escape Bangladesh without attracting the attention of the Bangladeshi authorities. It rejects the explanation that he had to provide the passport to the Australian authorities because he had no other way to prove his identity. While the Tribunal acknowledges that at the interview with the delegate the applicant disclosed that the passport contained false information about his DOB and that his protection visa application form records his date of birth [as Date of birth 2]. However, this does not change the fact that the applicant provided a bogus document in connection with his protection visa application as evidence of his identity, nationality and citizenship. Because the Tribunal does not accept that the applicant had to acquire this passport to escape political persecution in Bangladesh, the Tribunal is not satisfied that the applicant has a reasonable explanation for providing this bogus document to the Department in connection with his protection visa application.

7. In reaching this conclusion, the Tribunal has considered whether its concerns about the credibility of the applicant’s evidence can be overcome by the testimony of the various witnesses who have supported his claims. These witnesses include [Mr A] who has provided oral and written testimony in support of the applicant’s claims. In a written statement [Mr A] stated that the applicant was severely beaten on 13 November 2010, this news was covered by the media, and following the attack BNP senior leaders advised the applicant to leave the country. [Mr A] states that they managed to get a broker to obtain a passport and visa under a different date of birth because they feared that, based on his name and DOB, the authorities might detect him.[50] [Mr A]’s statement also addresses the treatment of the applicant’s family members after the applicant left Bangladesh, however it is apparent from the evidence before the Tribunal that [Mr A] does not have, or claim to have, first-hand knowledge of these events but has recorded the details in his statements based on information provided to him by the applicant’s family members.

   [50] Tribunal file, folio 310

8. The Tribunal accepts that [Mr A] is prepared to provide oral and written testimony that is supportive of the applicant’s claims. At the hearing the Tribunal raised with the applicant that it located an anonymous blog which alleges that [Mr A] has a long history of corruption, which everyone in his area is aware of.[51] However, the Tribunal places no adverse weight on anonymous allegations contained in this blog as the Tribunal acknowledges that it is possible that, as the applicant suggested, these may be false allegations spread by [Mr A]’s political enemies. The Tribunal did, however, have specific concerns about the information [Mr A] gave the Tribunal on 7 November 2016 and, in accordance with s 424A of the Act, it wrote to the Tribunal about these concerns. (These concerns included: [Mr A] initially seemed confused about whether he was giving evidence in support of the applicant or his father and he subsequently described the applicant’s father as a BNP supporter who lives in [District 1], which conflicts with the applicant’s claims that his father is a JI supporter now living in Comilla; in contrast to [Mr A]’s written statement, [Mr A] told the Tribunal he did not know about any problems [the applicant] had on Facebook; that [Mr A] said that he first met the applicant in 2001, whereas the applicant’s evidence was that they first met in around 2009; [Mr A] had a Facebook page that the applicant appeared unaware of; [Mr A] gave evidence his position with the BNP was [an official] for the students’ and that he obtained this position in 2009).

   [51] [Source deleted]

9. In response to the 424A letter the applicant provided a statutory declaration and [Mr A] provided a further statement. In a statement dated 22 January 2017 [Mr A] states that he ‘couldn’t provide proper information at the beginning of [the] conversation ‘as he ‘could not clearly recall [the applicant] and his father, [name deleted], clearly’ and he was in a ‘crowded place’ and it was difficult to hear. Furthermore, he is [age] years of age, has ‘hearing issues ...due to his age’, is ‘sometimes forgetful’, and needs to confirm details with his personal secretary. Furthermore, although he speaks English he did not clearly understand the Tribunal member’s English and became ‘tired and exhausted giving evidence’ without a break.  In his statutory declaration, the applicant declares that [Mr A] found it hard to understand the Tribunal’ questions as he was not a native English speaker, had hearing issues, was elderly, was speaking on a phone from a busy area, and was not provided with a break. The applicant declares that his name is sometimes mentioned as [his first name], sometimes as [Applicant’s Alias 1], and sometimes as his father’s name. He stated that when the Tribunal took evidence from [Mr A] the member referred to [the applicant’s surname] or Mr ‘[applicant’s first name]’ (mispronouncing the applicant’s first [name]). He stated because the Tribunal referred to the applicant by his surname, [Mr A] believed the Tribunal was asking about his father. He declares that this was why [Mr A] told the Tribunal about his father when the Tribunal was asking questions about the applicant and that [Mr A] described the applicant, not his father, as a BNP supporter. He declares that [Mr A] forgot his parents no longer lived in [District 1] due to his age, the length of the interview, and the fact he now lives in Dhaka.  It was submitted that other concerns that the Tribunal had about [Mr A]’s evidence could be explained by significant errors made by the interpreter or confusion on the part of [Mr A].

10. Having regard to the concerns raised above, the Tribunal has not relied upon [Mr A]’s oral evidence to draw adverse conclusions about the applicant’s credibility. At the hearing in October 2017 the applicant’s representative expressed concern that when [Mr A] was questioned by the Tribunal, he was not asked about his role in obtaining a passport for the applicant and he suggested doing so may have resolved the Tribunal’s concerns. The applicant subsequently provided a further statement from [Mr A] in which [Mr A] reiterates that he advised the applicant to leave Bangladesh and assisted him to do so by arranging – with a broker /agent -- to obtain the passport and employment pass.  The Tribunal is prepared to accept that if [Mr A] was recalled to give oral evidence, he would give evidence that was consistent with his written testimony. However, given the applicant has testified that [Mr A] is elderly, prone to confusion, hard of hearing, and reliant – to some degree – on a personal secretary to recall details and that [Mr A] has had the opportunity to provide further written statements to the Tribunal, the Tribunal is not persuaded that there would be any utility in taking further oral evidence from [Mr A]. Assuming that, if [Mr A] was recalled to give oral evidence, he would give evidence that was consistent with his written statements, the Tribunal does not accept that such evidence could overcome its concerns about the credibility of the applicant’s evidence about the circumstances in which he obtained his passport and left Bangladesh in April 2011 or the circumstances in which he repeatedly used a passport that he knew contained false information about his DOB to travel in and out of [Country 1] (including to Bangladesh in 2013) and as evidence of his identity, nationality and citizenship when he applied for a visitor visa to travel to Australia and, most recently,  for a protection visa.  

11. The Tribunal has considered all the witness statements that have been submitted to the Tribunal over the course of the review application.  The authors of most of these statements are resident in Bangladesh; two statements are from witnesses in Australia. Before the first hearing requests were made to take oral evidence from two witnesses ([Mr A] and [Mr C]), which the Tribunal did.  Subsequently, a request was made to contact an additional witness in Bangladesh [on] 1 December 2016 and on 27 October 2017 further requests were made to contact [the] additional witness in Bangladesh, and a witness in Australia. The Tribunal declined to do so, noting that all proposed witnesses have had an opportunity to provide written statements. The Tribunal has had regard to the letters submitted from BNP officials in the [District 1] area in Bangladesh, the applicant’s father and [Mr E]. However, in this case, even if it is assumed that the authors of these letters are who they say they are and that they would, if contacted by telephone, testify that the contents of the statements they have made in the letters presented to the Tribunal are true, this would add nothing to the statements conveyed in these letters. It would also not overcome the Tribunal’s concerns about the credibility of the applicant’s explanation as to why he provided a passport containing false information about his date of birth to the Department in 2014 or, more generally, the credibility of his claims that he fled Bangladesh to escape political persecution.

12. The Tribunal considers that the applicant’s immigration history indicates that he is a person who is willing and able to obtain and use fraudulent documentation to secure favourable immigration outcomes: he is in possession of a passport which appears to be genuine but which the Tribunal accepts contains false information about his date of birth; he has travelled to various countries (including Australia) for tourism purposes using a passport he knew contained false information about his DOB; he used this passport to obtain a [Country 1] employment pass that contains false information about his DOB, and his occupation.  Furthermore, key aspects of his evidence about his claims for protection are, for reasons that are discussed in detail below, lacking in credibility and these concerns are compounded by the fact that the problematic content of certain documents he has provided as well as the fact that certain documents do not support his claims (para 100-101). The Tribunal is not satisfied that the applicant has told the truth about why his passport records that he was born on [Date of Birth 1] instead of his true date of birth.

[53]Immigration and Refugee Board of Canada (IRBC), ‘Bangladesh: Reports of fraudulent documents, 20 September 2010’, BGD103532.E, available at: see also  Canada: Immigration and Refugee Board of Canada, Bangladesh: Reports of fraudulent documents (2011-2015), 20 August 2015, BGD105263.E; Tribunal folio 9 (delegate’s decision and country information referred to therein)

103.   Overall, the applicant’s evidence did not satisfy the Tribunal that he was any kind of political activist. Despite claiming to be a dedicated BNP activist who encouraged others to vote for the BNP, the applicant gave evidence that he had never voted in Bangladesh as he was not registered to vote and did not have a national identity card, While the Tribunal acknowledges there is some conflicting information about whether a person could vote in the 2008 election without a national identity card, the Tribunal was concerned that when it put to the applicant it had read he could vote without his national identity card[54], the applicant shifted his evidence and claimed that he was too frightened to vote in 2008 because his parents had told him that it could be violent doing so. Notwithstanding his concerns about violence on Election Day, he claims that he handed out pamphlets in support of [Mr A]’s unsuccessful bid to be elected in 2008 and that his parents voted in the 2008 election.  Other aspects of the applicant’s evidence about his involvement in the BNP to be vague and, in some instances, highly improbable. For example, he claimed to have organised a visit by [an official] to [District 1] whilst he was working in [Country 1] and to have been politically active online, however the very limited evidence he has provided of his activity online does not corroborate his claims to have been involved in political organising, either in [Country 1] or in Australia. Furthermore, the Tribunal finds it lacks plausibility that the BNP would ask party members who have fled abroad to organise local political events.

[54] Canada: Immigration and Refugee Board of Canada, Bangladesh: National Identity (NID) Card; its use as a voter's identity card; procedures to obtain one, 16 September 2010, BGD103531.E

104.   In submissions to the Tribunal it is claimed that the applicant is afraid he will be harmed because of his perceived association with JI. However, contrary to the written claims he submitted to the Department, the applicant told the Tribunal that neither he nor his father ever experienced difficulties in Bangladesh because his father supported JI. The applicant’s evidence indicates his father is not a member of JI, but votes for JI. While the Tribunal is prepared to accept that the applicant’s father may support JI it finds that he is not an active member of JI and that the applicant is not a JI supporter and nor has he ever been imputed to be one. On the evidence before it,  the Tribunal finds that there is no real chance that the applicant will face serious harm or significant harm because of his imputed political opinion and/or because his father supports the JI.

The applicant’s claims about his online activity

105.   The applicant has given evidence that he was active in support of the BNP on Facebook. He has claimed that after he was threatened online by an AL supporter he deactivated his Facebook account. Although the applicant made claims that he posted on Facebook in the statement of claims that accompanied his protection visa application, he did not provide any Facebook posts until after he first appeared before the Tribunal and he claimed he was not aware that this would support his application. The Facebook posts he has submitted are in the name of ‘[Applicant’s Alias 2]’ which, as the Tribunal put to him, was different from the names he had previously said he was known by. Further, as the Tribunal put to the applicant, despite providing Facebook material from 2013 and 2014 to the Tribunal, he did not produce any material corroborating his claim he was threatened online by an AL supporter. The applicant claimed that he had lost the record of the threat. He told the Tribunal that he made a request from Facebook for his activity log but he couldn’t find it as they had lots of material. On the evidence before it, the Tribunal is not satisfied that an AL activist threatened to kill or otherwise seriously harm the applicant online and it finds that this claim has been fabricated.

106. The applicant told the Tribunal that BNP members from his local area who were active on Facebook could not put their real names on their Facebook accounts. When the Tribunal put to the applicant that [Mr A] had a public Facebook page, he told the Tribunal this was not the case. However, as the Tribunal put to the applicant under s.424A of the Act, [Mr A] has a publically available Facebook page. The applicant has complained that at the second hearing [Mr A] said he ‘may have’ a Facebook page whereas the interpreter said ‘he has’ a Facebook page. Be this as it may, a Facebook page in the name of [Mr A] bearing images of [Mr A] appears online, and it finds, based on the evidence before it that this Facebook page belongs to [Mr A]. After initially claiming [Mr A] was not politically active on Facebook, the applicant subsequently claimed there were two types of Facebook, private – which [Mr A] does not have – and public and that [Mr A] has a public Facebook maintained by his followers. The Tribunal finds, based on the images on [Mr A]’s Facebook page, that [Mr A] has a Facebook page in his name, and that he openly supports the BNP on this page.[55]  As the Tribunal put to the applicant, this tends to undermine his evidence that BNP members in his area cannot put their real names on their Facebook account. Furthermore, the Tribunal considers it reasonable to expect that, if the applicant was actively involved with the BNP in [District 1] as claimed and a protégé of [Mr A], he would have been aware that [Mr A] had a Facebook account, including if that account was a public account Facebook account maintained by his followers.

[55] Tribunal file, folios 219-220

107.   Overall, the Tribunal finds the applicant’s claims he will be at risk of harm because of his political activity online contrived and unconvincing.  The evidence of the applicant’s online political activity is scant and limited to posts he made on Facebook in 2013 and 2014 under the Facebook avatar [Applicant’s Alias 2]. When it was put to the applicant that most of the Facebook comments were posted after he lodged a protection visa in June 2014, he responded that he made some Facebook posts in [Country 1] when he had not contemplated seeking protection in Australia.[56] While the applicant may occasionally expressed views that are supportive of the BNP, one of Bangladesh’s oldest and largest political parties, these comments do not, even when accepted at face value, support the conclusion that the applicant was a high level BNP activist or involved in organising political activity in support of the BNP. The material the applicant has provided from his Facebook page, which is not in his own name, does not indicate that he shares information about the BNP or events organised by the BNP online. The most recent post is now almost four years old.

[56] The Facebook posts he has presented show that [in] February 2013 [Applicant’s Alias 2] shared a post about the meaning of leadership with the comment ‘[deleted]’. [In] January 2014 a comment was posted that ‘[deleted]’, and [in] February 2014 he posted a general remark that was critical of Bangladeshi politicians. The applicant has also provided copies of comments he made in May, July, August, November and September 2014. As discussed with the applicant the comments are brief and refer to the AL and the police: for example, [comments deleted] etc. He also posted ‘[deleted]’ in July 2014’ and earlier in November 2013 he commented ‘[deleted]’. He also liked a post by JI.  

108.   The Tribunal does not accept that the applicant stopped posting political material online because he was threatened by an AL supporter or that he deactivated his Facebook account for this reason. The Tribunal has considered the applicant’s submissions concerning the risks facing political activists who post political material online, including the use of the Information and Communication Technology Act 2006 to prosecute political activists and critics of the current regime. However, the applicant has provided scant evidence of his online political activity and the Tribunal is not satisfied that the applicant would be motivated to post any political material online if he were to return to Bangladesh. Furthermore, even if it were accepted that the applicant prefers the BNP to the AL and might very occasionally express such views online using a Facebook avator ‘[Applicant’s Alias 2]’ or elsewhere, the Tribunal is not satisfied that this would expose the applicant to real chance of serious or significant harm. Having considered all the evidence before it, the Tribunal rejects any suggestion that he would engage in any public political activity (including online) that would give rise to a real chance that he would be subject to serious or significant harm because of his actual or perceived political opinion.

Witness testimony

109.   The Tribunal accepts that [Mr A], who is [a senior officer] of the BNP in [District 1], has presented oral and written testimony in respect of the applicant’s claims. [Mr A]’s written testimony reiterates the applicant’s claims about his experiences in Bangladesh and his claims about the treatment of his family members. With respect to the claimed treatment of his family members, it is apparent that [Mr A] does not have first-hand knowledge of these events but he appears to have provided details based upon reports that were made to him by the applicant’s family members.

110. As noted above, the Tribunal had specific concerns about the information [Mr A] gave the Tribunal on 7 November 2016 and it wrote to the applicant about these concerns under s.424A of the Act. The applicant provided a detailed response to information that was put to him in accordance with s 424A of the Act and the Tribunal has also considered further written statements from [Mr A]. In response to these concerns it was submitted:

·[Mr A] is an elderly man who has difficulty hearing and is sometimes confused (for example, the applicant claims [Mr A] was aware his parents no longer lived in [District 1] but said they did because he was tired and confused). In [Mr A] states that he is elderly, becomes tired, has hearing issues, and sometimes forgets matters and needs to consult with his personal secretary.

·[Mr A] was not given breaks when he testified before the Tribunal (it is noted none were requested) and that [Mr A] was initially questioned in English rather than with the assistance of the interpreter. Where [Mr A] was questioned with the assistance of an interpreter, the applicant has complained that the interpreter made errors of interpretation (these errors were not identified in the submissions about the impact of the interpreter but made in response to the 424A letter).

·The fact the interpreter observed that someone was speaking to [Mr A] is evidence of her bias. (The Tribunal notes that the audio records that an unidentified person did speak to [Mr A] while he was giving evidence to the Tribunal and [Mr A] subsequently stated this person was his personal secretary). 

111.   It is apparent that one of the limitations of taking evidence from witnesses via telephone is that the Tribunal cannot see what written material the witness has before them or whether anyone else is present while the witness is giving evidence.  Having regard to the concerns raised above, the Tribunal has not relied upon [Mr A]’s oral evidence to draw adverse conclusions about the applicant’s credibility. However, to the extent that [Mr A]’s written and oral testimony corroborates the applicant’s claims, including his claims that [Mr A] helped him to depart Bangladesh by arranging a passport containing false information about his age, ultimately [Mr A]’s does not overcome the Tribunal’s concerns that the applicant is not a witness of truth. The Tribunal has formed the view that [Mr A] has given oral and written testimony in support of the applicant because he has agreed to a request to assist the applicant in his efforts to obtain a protection visa in Australia, not because the events which are described in his written statements or referred to in his oral testimony actually occurred or because the applicant is or was a political colleague or protégée. 

112.   Having considered all the written witness statements, the Tribunal does not accept the applicant’s case could be assisted by taking oral evidence from the authors of these statements, including the additional witnesses proposed at the hearings in December 2016 and October 2017.  The Tribunal considered whether taking telephone evidence from additional witnesses could overcome its concerns about the the credibility of the applicant’s claims but ultimately it is not satisfied that, in circumstances where those witnesses have provided written statements, that doing so could have assisted the applicant’s case. While it is possible that telephone calls might be answered by respondents who would confirm that they authored these statements, and that the contents of those statements were true, this would add nothing to what has been conveyed by the statements and to what the Tribunal has already considered. The Tribunal is not satisfied that, even if the authors gave oral evidence consistent with their statements, such evidence could overcome the Tribunal’s significant concerns about the credibility of the applicant’s evidence (set out in detail above) which include: the Tribunal’s concerns that the applicant’s immigration history undermines his claims he fears harm in Bangladesh;  the fact that applicant’s evidence about significant matters (for example, why his passport records a false date of birth, whether he supports JI or the BNP, why he travelled to Australia) has been inconsistent and shifted overtime ; the problematic content of certain documents he has submitted as noted at para [100]-[102]]; the failure to credibly explain why documentary evidence was not presented earlier in the protection visa application process; his tendency change his evidence when challenged about its plausibility (for example, after initially claiming that his father had to have a tonsillectomy as a result of being attacked the AL, he changed his evidence and suggested the treating doctors could not record the real reasons for his treatment for political reasons); and his willingness to rely to false information to further his own immigration objectives (for example, renewing his employment pass in [Country 1] and travelling for tourism).

Conclusions: the applicant is not a credible witness

113.   For all the reasons that are set out above, the Tribunal has concluded that the applicant is not a credible witness.  The Tribunal is not satisfied that he was ever a member of the BNP or that he was actively involved in the BNP in the [District 1] area as claimed. The Tribunal does not accept that the applicant is genuinely regarded as a potential national level BNP leader by anyone in Bangladesh and rejects, in their entirety, his claims that he fled Bangladesh in 2011 to escape political persecution. Because the Tribunal does not accept that he is now, or was ever, a BNP activist of any type, it does not accept that he was ever threatened and assaulted by AL supporters in 2010. The Tribunal does not accept that the applicant ever participated in meetings of the BNP, rallies, protests, election campaigns, organising BNP rallies or any other public political activity in Bangladesh or that he communicated about political matters with political activists whilst in [Country 1] or made political donations as claimed.  The applicant gave evidence he had never voted for the BNP in elections in Bangladesh and the Tribunal does not accept that he has encouraged others to do so or that he actively supported the BNP in any way whilst in [Country 1]. The Tribunal does not accept that AL supporters assaulted him in 2010 or at any other time or that AL supporters have been looking for him in his home area or in Dhaka or elsewhere.

114.   The Tribunal does not accept that the applicant is of any adverse interest to members of the AL or to the authorities or to any other persons or groups in Bangladesh because of his claimed political involvement in the BNP.  Because the Tribunal does not accept that the applicant was ever actively involved in the BNP, it does not accept that he ever attracted the adverse attention of supporters of the AL for this reason or that he has ever been the subject of a false case or that he is otherwise of interest to the authorities. Because the Tribunal does not accept that the applicant was ever of adverse interest to the AL, it does not accept that either the applicant or his family members have been harassed or threatened or assaulted because of his claimed political profile. Specifically, the Tribunal does not accept that his father was subject to physical harassment, threats and demands for extortion, or that the AL burnt down his family home, or that his father and other family members moved house to avoid threats made against him by AL supporters or that his relatives have been harmed or threatened by AL supporters because of their association with the applicant.

The applicant’s conduct in Australia

115.   The applicant gave evidence was that between 2014 and 2017 he did not have any formal role in the BNP in Australia but he was a regular attendee at BNP meetings at restaurants in [Australian city 1]. Prompted by the Tribunal to expand upon his involvement in political activity in Australia, he did not claim to have attended any public protests. The Tribunal has considered the evidence of [Mr C], a former [official] of the BNP in Australia. As [Mr C] has acknowledged, he has previously written letters supporting other applicants before the Tribunal. [Mr C] gave evidence that he has not travelled to Bangladesh for many years but he believes BNP activists in Bangladesh are at risk of harm and that he knows that AL people in Australia collect information about the BNP in Australia and pass it on to the AL in Bangladesh.  The Tribunal accepts that [Mr C] believes that the applicant is a BNP activist and wants to assist him. [Mr C] told the Tribunal he had verified some details about the applicant with [Mr A] and, while the Tribunal has some doubts about this issue, the Tribunal is prepared to accept that the applicant may have arranged a phone call between [Mr A] and [Mr C].  Overall, the Tribunal found the evidence of [Mr C]’s evidence to be vague – for example, while [Mr C] suggested that the applicant was involved in protest activity, the applicant himself did not make such a claim and, in this respect, the Tribunal prefers the evidence of the applicant.

116.   The Tribunal acknowledges the political environment in Bangladesh is volatile and violent and that there are significant risks facing BNP leaders and party activists who publicly speak out in an increasingly repressive environment. However, the Tribunal is not satisfied that he ever held a position within the BNP in Bangladesh or that he was a political activist of any type in Bangladesh. Nor does the Tribunal accept that this situation would be any different if he were to return to Bangladesh now or in the reasonably foreseeable future.  In making this finding, the Tribunal accepts that the applicant has regularly attended meetings of the BNP in Australia and has had regard to the fact that [Mr E] and [Mr C] are prepared to support his claims to be a BNP activist. [57] The Tribunal is prepared to accept that since late 2017 the applicant may have acquired a role in [an Australian city 1]-based committee of the BNP in Australia as stated by [Mr E] in his letter of October 2017. However, the Tribunal is not satisfied that the applicant has engaged in any public protest activity in Australia in support of the BNP.

[57] Tribunal file, folio 300 (support letter from [Mr E] which states that the applicant is now [an official] of [a BNP affiliated organisation in Australia] and working with the organisation as ‘an activist and executive member convening committee’.

117.   The Tribunal accepts that the applicant has left Bangladesh and sought asylum abroad. However, as discussed with the applicant, DFAT assesses that people who return to Bangladesh, voluntarily or involuntarily, are unlikely to face adverse attention on their return.[58]  Authorities may take an interest in high profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia.[59] As the Tribunal put to the applicant, he did not appear to be a high profile leader or activist and it was difficult to see why he would be at risk because of any involvement in the BNP in Australia or because of the posts he made on Facebook in 2013 and 2014. The applicant reiterated his claims that he held a position in the BNP in Bangladesh and he worked for the party. He claimed that the next election in Bangladesh was approaching although when pressed to identify when this occur would occur, he did not provide any detail. On the evidence before it, the Tribunal does not accept that the applicant had any profile as a political activist in Bangladesh. Furthermore, while the Tribunal has considered the applicant’s submissions that his activities in Australia will have been noted by AL spies and that he will perceived as ‘a BNP activist with wealth’ due to his stay in Australia and Bangladeshi diaspora in Australia, the Tribunal finds this evidence highly speculative and it is not satisfied that there is a real chance he will face serious or significant harm on this basis. Having  regard to the information about returnees discussed with the applicant, the Tribunal satisfied that  there is a real chance that any of the activities in Australia and/or his posts he has made under a Facebook avatar and/or his relative wealth give rise to a real chance that he will attract the adverse attention of the Bangladeshi authorities. 

[58]DFAT, DFAT Country Information Report Bangladesh, 5 July 2016, p.23; DFAT, DFAT Country Information Report Bangladesh, 2 February 2018, p. 36.

[59]DFAT, DFAT Country Information Report Bangladesh, 5 July 2016, p.23; DFAT, DFAT Country Information Report Bangladesh, 2 February 2018, p. 36.

118. On the evidence before it, the Tribunal is not satisfied that the applicant has any genuine interest in, or commitment to, political activism in support of the BNP. Because the Tribunal does not accept he is now or ever was a genuinely motivated to active supporter of the BNP because of his political beliefs and opinions, the Tribunal rejects any suggestion that he would have to modify his political beliefs and activities to avoid harm if he returned to Bangladesh. The Tribunal does not accept that the applicant would actively support the BNP if he returned to Bangladesh now or in the reasonably foreseeable future. While the Tribunal acknowledges the applicant has been in Australia for some time, the Tribunal has formed the view that his involvement with the BNP in Australia reflects his desire to obtain a protection visa, not his political beliefs and convictions. The Tribunal is not satisfied that the applicant has engaged in political activity in Australia otherwise than for the sole purpose of strengthening his claims to be a refugee. The Tribunal finds that the applicant’s conduct in learning about the BNP, attending BNP events, and contacting and associating with BNP activists has been engaged in for the sole purpose of strengthening his claims to be a refugee. Accordingly, the Tribunal disregards his involvement in BNP activities in Australia in accordance with s.91R(3) of the Act. However, the Tribunal has had regard to this conduct in assessing the applicant's claims under the complementary protection criterion.

119. The Tribunal is not satisfied that there is a real chance that he will face harm of any type because of his actual or imputed political opinion if he returns to Bangladesh. The Tribunal has considered the country information about the security situation in Bangladesh and the high levels of politically motivated violence, but, on the evidence before it, the Tribunal does not that accept that the applicant will be an active member/supporter of the BNP if he returns to Bangladesh or that there is a real chance that he will face serious harm because of his actual or perceived political opinion. The Tribunal does not accept that he has a well-founded fear of being persecuted for his political opinion or any of the Convention reasons if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act. Having regard to its findings of fact and the applicant’s conduct in Australia, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Bangladesh, there is a real risk that he will suffer significant harm because of his involvement with the BNP in Australia and/or his communications with BNP members and activists. The Tribunal is not satisfied that his conduct in Australia would expose him to a real risk of significant harm if he were removed from Australia to Bangladesh.

The applicant is not a refugee and nor is he owed complementary protection

120.   The Tribunal has found the applicant is not a credible witness. For the reasons set out above, the Tribunal rejects his claims he was [an official] in his upazila and nor does it accept he was a member or active supporter of the BNP in Bangladesh. Even if it were accepted that the applicant favours the BNP and that he and his family have some connections with BNP figures in their local area, the Tribunal finds that he has never been of any adverse interest to the Bangladesh authorities or AL politicians or supporters in the past. The Tribunal finds that the applicant has never had a political profile that attracted the adverse interest of AL supporters or the Bangladeshi authorities. The Tribunal does not accept, having regard to its findings of fact, that this situation has changed in Australia or that it will change if he returns to Bangladesh now or in the reasonably foreseeable future. The Tribunal finds that there is no real chance of the Bangladesh authorities or the ruling AL party and its supporters or agents developing an adverse interest in the applicant due to any association he or his family have had with the BNP and BNP politicians, including [Mr A], or for any other reason and rejects his claims that a false case will be brought against him and that he will targeted by AL supporters and/or the authorities because of his actual or perceived political opinion. On the evidence before it, the Tribunal does not accept that there is a real chance that the applicant will face serious or significant harm if he returns to Bangladesh because of his actual or imputed political opinion and/or because he will be identifiable as a failed asylum seeker and/or because of his involvement with the BNP in Australia and/or his association with BNP activists in Australia and/or because of his online activities or for any other reason.

121. While the Tribunal accepts that the applicant has had some involvement with the BNP whilst in Australia, the Tribunal has disregarded this conduct under s.91R(3) of the Act. Because the Tribunal does not accept that the applicant has any genuine commitment to political activism in support of the BNP, the Tribunal does not accept the applicant would be motivated to be actively involved in supporting the BNP at public protests or at any level of politics if he were to return to Bangladesh. Furthermore, while the Tribunal accepts that the applicant will return to Bangladesh as a failed asylum seeker, having regard to its findings of fact and the available country information about returnees, the Tribunal is not satisfied that there is a real chance he will face serious harm on this basis or for any other reason. Having considered what it has accepted of the applicant’s claims individually and cumulatively, the Tribunal does not accept there is a real chance that he will suffer serious harm if he returns to Bangladesh for any of the reasons he has claimed. The Tribunal does not accept that he has a well-founded fear of being persecuted for his political opinion or any of the other Convention reasons if he returns to Bangladesh now or in the reasonably foreseeable future. The applicant is not a refugee.

122.   Having found that the applicant is not a refugee, the Tribunal has considered whether he meets the criteria for complementary protection. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[60] As noted above, the Tribunal has found that key elements of the applicant’s claims are not credible. Having carefully considered the complementary protection criterion and what the Tribunal has accepted of the applicant’s claims and circumstances, including his conduct in Australia and his conduct online, the Tribunal is not satisfied that there is a real risk that he will attract the adverse attention of the Bangladeshi authorities or any other person or group.  Because the Tribunal has found that the applicant has no genuine commitment to involvement in political activism in support of the BNP if he returns to Bangladesh, the Tribunal finds that there is no real risk that he will face significant harm on this basis.

[60] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

123.   The Tribunal has considered what it has accepted of the applicant’s claims and circumstances singularly and cumulatively. Having regard to the country information about the political and security situation in Bangladesh and its findings of facts, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Bangladesh, there is a real risk he would suffer significant harm for any of the reasons claimed, including any statements he has made or will make on Facebook and/or because of his involvement with the BNP in Australia, association and contact with BNP activists whilst resident in Australia and/or because of his status as a failed asylum seeker. Having considered what it has accepted of the applicant’s claims singularly and cumulatively, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Bangladesh, there is a real risk that he will suffer significant harm for any of the reasons claimed. The applicant does not satisfy the criteria for complementary protection. 

CONCLUSION

124. For the reasons given above, s.91WA(1) applies to the applicant. Therefore the grant of the visa is prevented by s.91WA.

125. Furthermore, and in the alternative, 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 s.36(2)(a). Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

126. 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).

127. 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

128.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Frances Simmons
Member

ATTACHMENT  - Extract from Migration Act 1958

5 (1) Interpretation
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

(a)purports to have been, but was not, issued in respect of the person; or

(b)is counterfeit or has been altered by a person who does not have authority to do so; or

(c)was obtained because of a false or misleading statement, whether or not made knowingly

…

91WAProviding bogus documents or destroying identity documents

(1)The Minister must refuse to grant a protection visa to an applicant for a protection visa if:

(a)    the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or

(b)    the Minister is satisfied that the applicant:

(i)has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or

(ii)has caused such documentary evidence to be destroyed or disposed of.

(2)Subsection (1) does not apply if the Minister is satisfied that the applicant:

(a)    has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and

(b)    either:

(i)provides documentary evidence of his or her identity, nationality or citizenship; or

(ii)has taken reasonable steps to provide such evidence.

(3)For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.