1507813 (Refugee)

[2016] AATA 4739

1507813 (Refugee) [2016] AATA 4739 (14 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507813

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:James Silva

DATE:14 November 2016

PLACE OF DECISION:  Sydney

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

Statement made on 14 November 2016 at 5:57pm

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. The applicant is a man in his [age range] from Dhaka District, Bangladesh. He claims to be a citizen of Bangladesh.

2. The applicant arrived in Australia in August 2014, as the holder of a [temporary] visa.

3. He applied for a Protection (Class XA) visa [in] September 2014, and attended an interview with the delegate of the Minister for Immigration [in] May 2015.

4. [In] May 2015, the delegate refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

5. This is an application for review of that decision.

6. The applicant appeared before the Tribunal on 7 November 2016, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant was represented in relation to the review by his registered migration agent, who did not attend the hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

8. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. The relevant law is set out in Attachment A.

   CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

   Background

9. The applicant is [an age] year old man from the village of [home village], Munshiganj District, Dhaka Division, Bangladesh.  The applicant is an ethnic Bengali and a Muslim, whose languages are Bengali and English.

10. The applicant studied in Munshiganj ([in specified years]), and completed his Secondary School Certificate. He then moved to Mirpur, Dhaka, where he attended [his college] in Mirpur, completing a [degree] in [year]. He was unemployed for several years, and in 2002, he became [an occupation 1] in a [product 1] store. From March 2010, he owned and operated a [product 2] business, named [name], working from a garage in the family home. The applicant claimed that this was a successful business. At the hearing, he stated that he has sales stock ([of product 2]) in a storage facility, which he has been unable to sell.

11. The applicant gave one residential address in Mirpur, from 1996 to August 2014.

12. The applicant married in July 2007. His wife and [sons], [ages] years old, are currently living with his in-laws in Munshiganj.

13. The applicant’s father passed away in 2006, and his mother passed away after the applicant arrived in Australia (hence, after August 2014). The applicant’s father used to operate a [product business] in Dhaka, and had a house in Mirpur. The applicant’s four married siblings are currently in Bangladesh. The applicant’s older brother took over the [product business] after their father’s death in 2006, and the whole family moved from Munshiganj into the house in Mirpur around that time.

14. The applicant holds a Bangladeshi passport issued in [2012]. He held a previous passport, issued in 2008. He indicated previous travel to [various countries], for business and tourism, on several occasions since 2009; to [Country 1] for [Organisation 1’s] International Convention in June-September 2012; and to [one country] for tourism in 2012. The applicant presented both passports at the Tribunal hearing, and the Tribunal was able to confirm his travel (as well as a [Country 2] visa application in 2013).

    Claims

15. The applicant claims to be a supporter of the Bangladesh Nationalist Party (BNP), who joined the party’s student wing in 1996 and remained involved in its activities until about 2010. He was also close to a BNP politician. The applicant claims that his political opponents, the (currently ruling) Awami League (AL), put him under pressure and extorted money from him – including physical attacks on three occasions, and ongoing threats and harassment. He fears that AL supporters (and associated criminals) will mistreat, harm or even kill him if he returns to Bangladesh, due to his past role as ‘a former BNP activist’. He fears that growing political violence in Bangladesh will increase the risks that he faces. The applicant claims that the Bangladesh authorities will not protect him, given their close links with the AL, and that relocation to another location in Bangladesh is neither a safe nor reasonable option for him.

16. The applicant presented a number of associated claims. He fears that his wife and children may be subject to targeting; this causes him psychological stress. AL cadres once assaulted his brother, as a warning to the applicant. And the applicant suggested that he is also afraid of former BNP associates, as they may resent him having moved on from party politics to more successful endeavours.

    Evidence

17. The Tribunal has before it a range of material, including, relevantly:

    §The applicant’s protection visa application form, submitted [in] September 2014

    §Covering letter, undated, from the applicant’s migration agent

    §An undated statement of claims is on the Department file

    §The applicant’s identity documents (copies): a birth certificate; Bangladeshi passport; Taxpayer’s Identification Number (TIN) certificate; and three [Organisation 1] membership certificates. The applicant attached a copy of his current Bangladeshi passport to the protection visa application; he brought both this and his previous passport to the Tribunal hearing.

    §Protection visa interview (‘Department interview’) held [in] May 2015, a recording of which is held on the Department file and which the Tribunal has listened to

    §The protection visa decision record (‘delegate’s decision record’) of [May] 2015

    §The review application form, lodged on 9 June 2015, has attached to it a brief synopsis of the applicant’s claims and a copy of the delegate’s decision record

    §A pre-hearing submission dated 19 October 2016 addresses a number of issues from the Department interview

    §The applicant appeared before the Tribunal on 7 November 2016, to give evidence and present argument. The applicant presented to the Tribunal his two Bangladeshi passports, one issued in 2008 and now expired, and his current passport.

    Country of reference / receiving country

18. The applicant claims to be a national of Bangladesh. He presented his current Bangladeshi passport and his previous passport to the Tribunal, as well as a number of other documents bearing his name. His first language is Bengali, and he is thoroughly familiar with life in Bangladesh. On the available evidence, and in the absence of any contrary information, the Tribunal finds that he is a national of Bangladesh. Bangladesh is therefore the country of reference for the purpose of his assessing the applicant’s refugee claims, and the receiving country when assessing his eligibility for complementary protection.

    Assessment of claims: credibility

19. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. It formed the impression that the applicant had drawn on his personal experiences to some extent, as a businessperson and a person who favours the BNP. However, it found his claims of political involvement and to have been subject to past harm to be lacking in detail and supporting evidence, and sometimes changeable. Moreover, his business success and travel history did not sit well with the substance of his protection claims. The Tribunal has broad concerns about the truthfulness of the applicant’s protection claims, and his account and interpretation of events, even though some of this might have been based in part on actual experiences. Its assessment follows below.

    Political profile and activities

20. The applicant claims that he was attracted to the BNP, and became involved in the party while still in college. At the hearing, he said that the BNP is a national party that has managed the country well when in power, and which has good people. It inspired him. The applicant’s evidence about the party was stated in very general terms. He told the Tribunal that all his family favoured the BNP, but he was the only one who became involved or active.

21. The applicant claimed that in February 1995, while he was at [his college], he joined the BNP’s student wing, the Jatiya Chhatra Dal (JCD). He claims to have attended meetings, processions and demonstrations at the college, and became well-known in the college and in the Mirpur area as a JCD activist.

22. The applicant claims that, later, he befriended and became close to a BNP member of parliament during the 2001 national parliamentary elections. The applicant did this in part because he preferred the BNP but also, as he explained at the hearing, for his own advancement. The applicant’s comment that he ‘needed to be with someone’ suggested that he was in part motivated by his wish for contacts and some kind of patronage.

23. The applicant claimed that, as a result of his political work, everyone in Mirpur knew that he was an active BNP member and linked with the local BNP leader. The applicant identified this person as [Mr A]. At the Tribunal hearing, the applicant said that this person had been the [Leader of a specified ward]. He was not sure of the seat, but thought that it might have been [seat name]. The Tribunal explored with him this person’s background, and tried to confirm the applicant’s advice through the published parliamentary election results on-line,[1] without success. Following the hearing, the Tribunal has been able to confirm that [Mr A] was the BNP candidate for the seat of [different seat], in which [the specified ward is] located, in the 2001 national parliamentary elections. As the applicant indicated in his oral evidence, [Mr A] did not win his seat in the 2001 elections.

    [1] Through Amardesh.com

24. The applicant claims that [Mr A] used to give him various tasks and assignments, such as organizing meetings, participating in demonstrations and the like. The applicant continued this work through to 2010, despite his brother’s pleas that he was putting himself at risk, and that he should look instead to find work or set up a business. From 2010, when the applicant became involved in the successful [product 2] business, he stopped working for the BNP and instead became involved with [Organisation 1]. The applicant told the Tribunal that he was living ‘in panic’ during this period, as he was under constant threats, but [Organisation 1] provided him an opportunity to engage in various charity and similar activities (as a kind of substitute for his political work, which was now too risky).

25. The Tribunal explored these claims with the applicant, in order to confirm his association with the party, and to clarify his role and profile. The applicant said that he was an ‘ordinary member’ of the BNP, but he did not formally join it in the sense of obtaining written membership or a card. He described his role, organising rallies and processions, and providing other support. He said that it was his ability to organise events, and gain the trust of BNP leaders, that distinguished him from others and helped him gain him a profile locally. When asked whether he had supporting evidence – the Tribunal gave as examples photographs, letters of appreciation or other materials – the applicant said that he had did not bring any documents with him to Australia. He explained that he was now afraid of contacting BNP people in Dhaka, for fear that they would learn his whereabouts in Australia. Asked to clarify these comments, the applicant appeared to state that he has a lot of inside knowledge about the BNP, and some within the organisation are resentful that he was first in the party and then moved on to his business, where he made money.  He said that they used to ‘torture’ him and demand money. He is now worried that they will also target his wife and children, if they discover the applicant’s whereabouts. (The applicant raised these issues in the context of explaining that he did not have any evidence to corroborate his claims of political involvement, and why he believed that he could not obtain them. The Tribunal returns to the substance of these apparent claims later in this decision.)

26. The Tribunal accepts that the applicant prefers the BNP, and was associated with it from about the mid-1990s until around 2010. He spoke about it mainly in pragmatic terms – of how it could help his business or economic prospects – and did not demonstrate any real interest in its ideology or policies. The Tribunal notes that the BNP’s student wing is often a kind of gateway to the party for young people, and indeed remains a focus for some even after they leave college: “Newspaper reports indicate that the leadership of the Chhatra Dal is dominated not by students, but by middle aged people who are engaged in business or service or are full-time politicians.”[2]

    [2] Rounaq Jahan, Political Parties in Bangladesh, CPD-CMI Working Paper Series.

27. The applicant’s description of his activities, whether for the JCD or with the BNP itself, through [Mr A], was vague and lacking in detail. Despite his claimed involvement with the party over more than a decade, and his local profile, he gave no supporting details or corroborative evidence. The Tribunal appreciates that asylum seekers cannot be expected to document their protection claims, but in the present case, it detected little genuine interest on the applicant’s part in exploring whether there might be some. It also found the applicant’s explanations as to why he did not wish to pursue this – because he did not want to reveal his whereabouts to former party colleagues, for fear that they (or others) might harm his family – to be improvised and unpersuasive.

28. In light of these concerns, the Tribunal considers it possible that the applicant has some kind of association with the BNP’s student wing and later with the local parliamentary candidate, [Mr A], especially during the period of the BNP government (2001 to 2006), mainly for pragmatic reasons to do with his career and business prospects. The Tribunal finds that such links did not involvement ‘membership’ of any organisations. It finds they were marginal, and did not extend beyond 2010. It does not accept that the applicant gained a profile, even within Mirpur or [the specified ward] (where [Mr A] was based), as a devoted BNP supporter, or for his skills in organising or providing logistics to the party or its local leader.

29. It follows that the Tribunal does not accept that the applicant continued to have a profile as a person with close BNP links beyond 2010, in any capacity.

    Political targeting and attacks

    Experiences before 2010

30. In his original statement of claims, the applicant wrote in general terms that he ‘became a target of […] Awami League activists of the Mirpur locality and ever since [he was] facing tremendous problems from my political rivals’. He also wrote that his brother counselled him to leave his political work, and instead look for work or to establish businesses. So, ‘after two years of […] unemployment, [the applicant] finally found [work]’ in the [product 1] company. This statement does not mention specific dates, but it appears to refer to the period from about [year] to 2002, when he claims to have been unemployed.

31. The applicant did not spell out what ‘tremendous problems’ he had during this period. On the contrary, the tone of his evidence appears to be that he became involved in the JCD and later with [Mr A’s] office in order to better his lot in life. The absence of direct threats or harm is perhaps not surprising, particularly given that the BNP was in power from 2001 to 2006, after which there was a caretaker government up to the December 2008 elections.

32. At the Tribunal hearing, the applicant said that his older brother is Islamic-minded and favours the BNP, but does not get involved in political activities. He mentioned almost in passing that ‘they’ (the applicant’s political opponents) used to demand money from his brother, and also ‘tortured’ him because of the applicant’s profile with the BNP. Asked for details of this, the applicant said that some men attacked his brother one day in 2008 while he was returning home from work ([the product business] that he had taken over following the father’s death). The men assaulted him, holding a gun to his head and warning that they would kill him if he did not stop the applicant’s political activities.

33. The applicant said that after this, his brother tried to persuade him to give up his political work, but the applicant was not willing to quit politics. The Tribunal flagged its concern that the applicant made no mention of an assault of or death threats against his brother in his original statement. It also queried why the AL people had attacked his brother rather than him, and why the applicant had appeared to react so casually to the assault of his brother and death threats towards him. The applicant addressed this concern indirectly, saying that he moved around in the company of other people, for his safety. The Tribunal understands him to be implying that he felt subject to virtually constant threat during this period.

34. The Tribunal is concerned by the applicant’s failure to mention this in protection visa application, and by the lack of context to this claim – such as his opponents making other  attempts to locate and assault the applicant, or of the applicant being under constant threat. The Tribunal does not accept that there was any such assault of the applicant’s brother, or threats made to kill the applicant or his brother if the applicant continued his political activities (such as they were). 

    Attacks in 2010, 2012 and 2014

35. The applicant claims that AL cadres physically attacked him on three occasions, in January 2010, around December 2012, and again in March 2014. The focus of the applicant’s claims was on the three attacks. However, in his protection visa application, he referred to ongoing harassment and threats, in the following terms:

    Those Awami activists were […] seriously taking on me variously. Such as – asking me for money every now and then in the name of donation, harassing and assaulting me in the street, and if I was late to pay their donation and demand, they were speculating and accusing me with false charges which I was not even aware of and again making unidentified phone calls threatening me to quiet the business if I was not prepared to pay them. And again threat was given more often that they would kidnap my sons from school and also would kill me in front of my wife and sons etc.

36. The applicant also wrote that during this period he paid a total of Taka 600,000[3] to protect himself. Despite the applicant’s vivid references to the AL’s and his business competitors’ ongoing pursuit of him, the Tribunal found that he was scant on detail, and there was little comment on how, in the face of ongoing demands and threats, his fledgling business thrived.  

    [3] Bangladesh Taka 600,000 is approximately $A 10,000 at the current exchange rate.

37. The Tribunal also explored what happened in the period after the AL parliamentary election win in December 2008. The applicant replied that his enemies were trying to undermine his business, and they targeted him because of his BNP background. He appeared to be referring to the [product 2] business, which he set up only in March 2010. As a result, it is unclear whether the applicant was targeted during 2009, when he was still working at the [product 1] store and (according to his claims) involved with the BNP. Also of note, the applicant’s comments reinforce the impression that, from 2010, his main focus was the [product 2] business, rather than any political issues. This could indicate that, to the extent that he was facing some challenges, these arose out of his business activities (rather than related to his past association with the BNP).

1. Attack in 2010: In his protection visa application, the applicant claimed that in January 2010, a group of AL workers were waiting for him as he got off a bus. They punched, kicked and beat him with sticks, leaving him unconscious. The applicant ended up in a local private clinic, where he stayed for two days. After the incident, the applicant’s brother advised him to stop working at the [product 1] store, and instead start a business from home so that he would be safer and also be able keep an eye on his family.

2. At the hearing, the applicant confirmed this claim. He said that there had been some earlier threats, but this was the first physical attack. Some 10 to 12 men assaulted him, near Mirpur, as he was returning home after delivering some [product 2]. The applicant said that he lost consciousness, and some senior people (implicitly, senior BNP party people) took him to a private hospital, where he received stitches for cuts. The applicant said that his brother became angry with him after that, and pressed him to quit the BNP. The applicant said that he cut back his involvement with the party, but did not completely sever his links. Instead, he shifted his focus to [Organisation 1]. The applicant provided several [Organisation 1] certificates of membership, the earliest dated [in] August 2010.

3. The Tribunal notes that there is little detail or evidence to support the applicant’s claim of having been bashed in January 2010. Also, there are several anomalies. In his written statement, the applicant wrote that the men attacked him while he was on his usual travel route to the [product 1] store, and that after this, he decided it was safer to work from home. This led him to become involved in the [product 2] business. However, at the Tribunal hearing, he claimed that the attack occurred while he was returning from a delivery of [product 2]. The Tribunal also notes that a large group of men was involved in the attack, and the applicant claims to have lost consciousness, yet he spent only a few days in a private hospital, after receiving stitches. Finally, the applicant emphasised that his [product 2] business was successful. This means that, even if AL cadres did target the applicant in early 2010, this did not have any significant impact on his business activities or living arrangements. Nor did they compel the applicant to change his work or living arrangements, for fear of future attacks of that kind.

4. Overall, the Tribunal considers the evidence to support this alleged attack to be weak and inconclusive. It returns to this claim, and makes findings (see paragraphs 50, and 54-56).

5. At the Tribunal hearing, the applicant claimed that following this attack, he more or less stopped his contact with the BNP. He emphasised that such political work was unsafe. His statement of claims, however, indicates that he did remain a BNP ‘member’ throughout, and a person who continued to be well-known because of his BNP profile.

6. Attack in December 2012: The applicant said at hearing that around New Year 2012/2013, some AL people came and demanded money from him, threatening him and leaving him in a state of panic. Pressed for details, he said that one day in the area of [a location in Mirpur], a group of some ten to fifteen people attacked him just before lunch time. They attacked him with rods and with their fists, warning him that he should not be so active. The applicant said that he knew three or four of these people, as they used to follow him around. In response to further questions, the applicant said that many local people knew about the attack, but the applicant did not think that it had made the news or attracted any publicity. Again, the applicant had little to add by way of context or details. He said that he continued to operate his business profitably, although he was in a ‘sort of compromise’ (by which the Tribunal understands him to mean that he somehow had to accommodate his opponents or take some precautionary measures). The Tribunal has broad concerns about this claim, and makes findings below in the context of the applicant’s circumstances as a whole (see paragraphs 50, 54-56)

7. Attack in February 2014: The applicant claimed that in February 2014, a person telephoned him indicating an interest in buying some [product 2]. He visited the person’s home (or home office) in another part of Mirpur, which (he said at the hearing) was a normal way of conducting business in his sector. On arrival there, the applicant saw three known local AL activists – he described them at the hearing as known ‘killers’. The man who had lured him there demanded that he pay them Tk [an amount], on account of his involvement in the BNP and because of his successful business. They threatened to kill him if he failed to comply with their demands. At the Tribunal hearing, the applicant added that some of the men held him, put a pistol to his head, punched him and then tied him to a chair. The applicant called his brother, who gathered the money and handed it over, to secure the applicant’s release.

8. The Tribunal noted, and the applicant confirmed, that despite the alleged ongoing threats over a number of years and two assaults up to that point, he had continued to grow his successful business in the preceding four years or so. The Tribunal queried in particular whether any such incidents were connected with politics – after all, the AL had been in power by about five years at that stage, and the applicant had not been involved in the BNP to any degree for most of this period. The timing suggested instead criminal activities or business rivalries. The applicant said that it was linked with his previous political work, and that it was part of politically targeted extortion.

9. The applicant claimed that after the attack, he went to the Mirpur police with his relatives. The police listened to the complaint, but warned the applicant that he would be at greater risk if he filed a complaint. The applicant and his brother decided not to proceed with a police report, and left.

10. The Tribunal notes that extortion of businesses, often targeting political opponents or with the backing of political elites, is a significant problem in Bangladesh. For instance, a recent study[4] noted: “There has been an increasing trend towards criminalisation of politics as mastaans became an integral part of political parties and electoral politics. While mastaans were sparingly used by politicians in the 1950s and 1960s, in the last two decades their use by political parties has become pervasive. […] Mastaans used their immunity from law enforcement to extract tolls from various business and construction contracts to further their own individual wealth. The nexus between politicians, businessmen, mastaans and the law enforcement agencies, have thus, become embedded in the political system during the period of electoral democracy.”

    [4] Rounaq Jahan, Political Parties in Bangladesh, CPD-CMI Working Paper Series. August 2014.

11. In the Tribunal’s view, this claim must be assessed in the context of the applicant’s circumstances as a whole, and also taking into account his credibility and his conduct. It considers this further in the paragraphs below, and makes findings in paragraphs 50, and 54-56.

    The applicant’s experiences and his departure from Bangladesh

12. The Tribunal accepts that the applicant prefers the BNP, which is Bangladesh’s oldest and one of its largest political parties. However, as noted above, it has a number of concerns about his claimed political profile; his claims to have been targeted and assaulted on three separate occasions; and his broader claims to have been subject to ongoing threats and intimidation.

    §  First, the applicant’s account of his political work or activism, even before 2010, was quite superficial, and his claimed link with a local BNP leader was vague and unsubstantiated. Although he claimed that he still had some kind of association with them even after 2010 – at a reduced level, he said – the Tribunal has difficulty believing that he was ever a person of adverse interest to AL activists or criminal working as their agents. The applicant’s lack of demonstrated interest in the BNP in recent years adds to the Tribunal’s doubts about whether he had any real past involvement. The Tribunal has considered the reasons the applicant advanced for this lack of contact or engagement – such as the fear that ‘they’ (presumably meaning former BNP colleagues, or the Bangladesh authorities) would learn about his whereabouts – but found his explanation of this to be piecemeal and unpersuasive.

    §  Second, the applicant’s ongoing business activities throughout this period cast doubt on his claims to have been subject to ongoing harassment, or even individual, more serious assaults or threats. At the hearing, for instance, the applicant stated that he currently has [product 2] in storage, and had not managed to get his brother or anyone else to dispose of it. This suggests that his business continued to operate successfully throughout, and in the Tribunal’s view, it casts doubt on his claim to have left the country in response to some imminent threats, or while subject to a concerted campaign to ruin his business.

    §  Third, the Tribunal is concerned at the applicant’s propensity to embellish his claims with broad, unsubstantiated statements, or to claim dubious causal links. An example of this is the applicant’s claim that he has avoided contact with his wife and children, or approaches to family to obtain supporting members, for fear of his former associates learning his whereabouts (in Australia) and renewing their pursuit of him, and potentially harming his wife, children or other family members.

    §  Fourth, as discussed at the hearing, the applicant’s own conduct – specifically, his travel to and from Bangladesh over a period of time, and his apparent failure to explore other avenues of protection – adds significantly to the Tribunal’s doubts.

    -   The applicant held a Bangladeshi passport and undertook a significant amount of travel during the period that he claimed to have been subject to ongoing threats. His Bangladeshi passports, presented to the Tribunal, as well as his protection visa application form, indicate travel to [various countries] for tourism, and a trip to [Country 1] for more than two months, allegedly in connection with [an Organisation 1] International Conference. The applicant explained that he travelled to make purchases for his business. He confirmed that he did not explore options to remain in these places longer, for his safety (for instance, by using his 90-day multiple entry visa for [one country]), explaining that he had family and business obligations in Bangladesh and, in any event, he always held out hope that the situation in the country would improve.

    -   Similarly, the applicant told the Tribunal that a visa application stamp dated [in] June 2013 in his passport related to an application that he had made to the [Country 2] Embassy. He explained that the [Country 2] authorities did not grant the visa because he had been unable to provide documentary proof of his business interests. He told the Tribunal that he had no particular plans for his visit to [Country 2], but the Tribunal does not accept that he would go to such trouble and expense for no apparent reason. It notes, too, that there is no apparent link between that and the (alleged) attack that took place some six months earlier, in December 2012.

    -   In all, the applicant’s travel and movements strongly suggest that he was not under threat or persecutory or significant harm, and looking for an opportunity to find protection. Rather, they suggest that he was looking for opportunities to visit and perhaps settle in developed countries, such as [Country 1] (where he stayed for more than two months) or [Country 2] (where he unsuccessfully applied for a visa)

13. In light of these concerns, taken together, the Tribunal accepts that the applicant prefers the BNP. It accepts that he may have had associated himself with the party’s student wing, a local MP, or others. However, it does not accept that he was actively involved in the BNP’s student wing, with a local MP; that he was actively engaged in related activities; or that he acquired a pro-BNP profile beyond that of an ordinary citizen and business person who prefers the party.

14. Similarly, the Tribunal does not accept that the applicant was attacked on any of the three occasions that he identified in his protection visa application, that is, in 2008, 2010 or in 2012; that his brother was attacked (in lieu of the applicant) in 2008; that there were any other incidents of threats, intimidation or serious extortion; that the applicant suffered psychologically through any assault of his brother, or threats to family members; that the applicant had to refrain from political activities or take precautionary measures to avoid such harm; or that the applicant is inhibited from engaging in various activities (like contacting his family) for fear that his opponents will target him or family members afresh.

15. The applicant suggested that the police had been unable or unwilling to protect him (for instance, after he and his brother went to the police, following the alleged January 2014 abduction and payment of ransom), or even been complicit with the AL cadres. As the Tribunal does not accept that this incident took place, it does not accept that the applicant sought and was effectively denied protection. It also does not accept that there were any other occasions when the applicant was unable to obtain protection. The applicant also implied that former BNP associates might form some kind of threat, or at least inhibit him from revealing his whereabouts to friends or family in Bangladesh. The Tribunal does not accept that the applicant has any such concerns.

16. The applicant’s claim that his business faced demands for bribes or extortion finds some support in country information, which indicates that criminal and corruption are significant problems in Bangladesh. Businesses may face demands for protection money, including by local criminals, sometimes with political associations. However, the considerations set out above (particularly the success of the business and the applicant’s own conduct/travel) lead the Tribunal to find that the applicant was not subject to extortion demands, threats or other criminal activities that amounted to serious harm or significant harm; and that he was not targeted for excessive demands or threats for any reason association with his protection claims (in particular, for political reasons).

17. The applicant does not maintain contacts with BNP associates in Bangladesh, or have any ongoing political interests. In light of the above findings, the Tribunal does not accept that the applicant has refrained from such activities due to any past or ongoing fear that they would result in threats of persecution or serious harm. The Tribunal finds instead that the applicant has other priorities, such as business, travel and his ambition of settling in another country. 

    Summary of findings

18. The Tribunal accepts that the applicant is a businessman; that he prefers the BNP; and that he may have tried to associate with the party’s student wing and the former local BNP member [Mr A], particularly in the period of the BNP government (2001-2006). The Tribunal finds that the applicant pursued these contacts mainly for the pragmatic reasons of career and business advancement, and it does not accept that they involved his membership of the JCD, any close relationship with [Mr A] or any other activities that gave him a profile locally. The Tribunal finds that the applicant’s interest in local politics more or less petered out around 2010, as he immersed himself in his [product 2] business and overseas travel. The Tribunal does not accept that the applicant refrained from political activities because of the election of the AL government or due to any ongoing threats, harassment or attacks.

19. The Tribunal accepts that the applicant came under pressure to pay bribes, or protection money or some other form of corrupt transfer, and that he knows or suspects that the people making these demands were linked with the ruling AL. However, the Tribunal does not accept that his brother was assaulted in 2008 (as a warning to the applicant), or that the applicant was attacked on three occasions, in 2010, 2012 and 2014. Nor does the Tribunal accept that there were any ongoing threats or harassment that, individually or cumulatively, amounted to persecutory harm or significant harm. The Tribunal bases this conclusion on its assessment of the claimed incidents themselves, the applicant’s ongoing business interests and his conduct (in particular his travel history).

20. The applicant made a number of associated claims, such as his wife and children moved back to his in-laws, for their safety, and that his fear of his political opponents. The Tribunal accepts that the applicant’s family has moved home, but it does not accept that this is for any reasons related to his protection claims. 

    ASSESSMENT: REFUGEE CRITERION

21. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct if he returns to Bangladesh, and relevant country information, whether he has a well-founded fear of Convention-related persecution, now or in the reasonable foreseeable future.

22. The Tribunal accepts that the applicant would likely return to Mirpur, Dhaka if he goes back to Bangladesh, as his family is now based there. The applicant claimed that he would go back to the Mirpur area of Dhaka, explaining that his father’s house is there, his brother (and other relatives are there) and that it is a focal point for the sectors where he has worked, namely in [the product 1 business] and in the [product 2 business]. The Tribunal accepts that the applicants wife and [sons] are now in Munshiganj, with his in-laws, but it finds on the available evidence that this is a temporary arrangement only, while the applicant is in Australia.

23. For the reasons stated above, the Tribunal accepts that the applicant prefers the BNP and may have had some association with the student wing and/or the local MP, although it does not accept that he engaged in any political activities or was perceived as such. It does not accept that he has any political profile, in Mirpur or elsewhere in Bangladesh, and that he was not of adverse interest to AL cadres or anyone else. The Tribunal also does not accept that the applicant has any ongoing interest in the BNP, or that he will if he returns to Bangladesh.

24. The Tribunal does not accept the applicant’s recent suggestions that individuals in the BNP might be motivated to pursue him. It also does not accept that the applicant fears that his wife and children may be targeted, and that he is experiencing psychological problems as a result. 

25. The Tribunal accepts that the applicant may have paid some bribes while running his business, and that the persons demanding money may have been linked with the ruling AL party. However, the Tribunal is not satisfied that these (the bribes or any associated threats) involved persecutory or significant harm.

26. The Tribunal accepts that the applicant still favours the BNP. However, his involvement even prior to 2010 was only modest, and he has had minimal engagement or interest since then. In light of the findings above, the Tribunal does not accept that the applicant experienced any harm amounting to persecution in the past. The Tribunal does not accept that the applicant’s already very low engagement and interest in the BNP or Bangladeshi politics generally will increase if he returns to that country. Nor does it accept that he has any political opinion that would motivate him to engage in political activities, but which he might need to refrain from or modify, in order to avoid persecutory harm.

27. Country information discussed at the hearing indicates that the AL government and its agents suppress their opponents, such as BNP leaders, members and activists, although the level of risk will necessarily depend on an individual’s circumstances. For instance, the latest DFAT Country Report states:

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

1. The Tribunal is not satisfied that the applicant faces a real chance of serious harm amounting to persecution, for political reasons, in Mirpur or elsewhere in Dhaka. Having found that he has not suffered persecution in the past – either for reason of his preference for the BNP and/or for running a business where he faced some demands for bribes or protection money – the Tribunal is not satisfied that he faces a real chance of serious harm amounting to persecution for such reasons in the future. It takes into account that his absence from the country (and Mirpur) for more than two years has further reduced the possibility that AL cadres or anyone would regard him as a person of adverse interest.

2. Country information indicates that politics in Bangladesh is volatile, and that political violence occurs regularly, particularly affecting those involved in protest activities, or inter- or intra-party conflict. The Tribunal is not satisfied that the applicant will engage in or be affected by such activities; it therefore finds no real chance of him being subject to serious harm for political reasons. The Tribunal notes that some politically motivated violence can spill over and ordinary bystanders, usually in public areas such as streets and shopping areas. However, the Tribunal finds that there is no real chance of the applicant being affected by such generalised violence, and that it is also not ‘serious harm’, as defined in s. 91R(1) of the Act.

3. The Tribunal accepts that corruption is a major problem in Bangladesh. It is unable to determine with confidence whether the applicant current has [product 2] in storage in Mirpur, that he will then retrieve them and try to re-establish his business; whether he will try to resume his work in [the product 1 business] (he said that the company where he used to work in Mirpur uses specialist [equipment]); or whether he will find some other work in Mirpur or more generally in Dhaka. In light of the above findings, and taking into account all the applicant’s circumstances (including his preference for the BNP and his past experiences as a businessman), the Tribunal finds that there is no real chance of the applicant facing corrupt behaviour (such as demands for bribes or protection money, or associated threats) resulting in serious harm for a Convention reason.

4. The Tribunal discussed with the applicant whether, if he had a well-founded fear of persecution for a Convention reason in Mirpur, relocation within Bangladesh would be a safe and reasonable option, in the sense of ‘practicable’ in his personal circumstances. The applicant explained that Dhaka is a very expensive city, and that it would be inconvenient for him to have to move from Mirpur, given his family and business connections there. However, given the Tribunal’s finding above that the applicant does not have a well-founded fear of Convention-related persecution in Mirpur, it follows that the Tribunal does not need to consider whether relocation is an appropriate option for him.  

5. For the reasons set out above, the Tribunal does not accept that if the applicant returns to Bangladesh now or in the foreseeable future that there is a real chance he will face serious harm for reasons of his low-level support of the BNP or any past association he has with the party through his extended family. The Tribunal does not accept that he has a well-founded fear of persecution for reasons of political opinion or for any other Convention-related reason.

6. The Tribunal finds that the applicant does not have a well-founded fear of persecution for reasons of political opinion or for any other Convention related reason, now or in the reasonably foreseeable future, if he returns to Bangladesh. It is therefore not satisfied that he meets s.36(2)(a).

   ASSESSMENT: COMPLEMENTARY PROTECTION

7. The Tribunal has considered whether on the evidence before it, there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh.

8. Country information indicates that there are generally high levels of political violence in Bangladesh, both between and within the major parties. However, the findings above that the applicant’s political interests do not extend beyond a preference for the BNP, and that he has no other current or prospective profile, indicate that he does not face a real risk of significant harm arising from these circumstances.

9. Country information also indicates high levels of corruption and criminal activity in Bangladesh. The applicant claims that he has already experienced corrupt activity, exacerbated (he claims) because of his allegiance to the BNP), but the Tribunal has found that he has both exaggerated and misconstrued such incidents, and that they did not involve significant harm. Sources indicate that thugs associated with the ruling AL are responsible for some of the general criminality and protection rackets, and that they can and do select their targets based on political allegiance, at least at a local level. However, for the reasons given above, the Tribunal does not accept that the applicant has in the past or will in the future face an elevated risk due to any political leanings. The Tribunal accepts that the applicant might experience further corrupt conduct if he returns to Bangladesh – including if he re-enters the [product 2] market – but it is not satisfied that this gives rise to a real risk of significant harm.

10. The applicant’s concerns also relate to the broader security, and law and order problems, in Bangladesh. Country information indicates that these are real issues in that country. In the Tribunal’s view, these relate to the general security situation in Bangladesh, and associated economic concerns. Under s.36(2B)(c) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the lack of general security and instability that the applicant alluded to is faced by the population generally and not by him personally.

11. For the above reasons, the Tribunal is not satisfied that the applicant’s circumstances give rise to a real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. 

12. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm: s.36(2)(aa).

    Overall conclusion

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

14. 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).

15. 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

16. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    James Silva
    Member

    
    

    ATTACHMENT A: RELEVANT LAW

    The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Refugee criterion

    Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

    Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

    Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

    There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

    Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

    Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

    Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

    Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

    In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

    Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

    If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

    ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

    There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

    In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    
    

August 2014.