1507901 (Refugee)

[2016] AATA 4649

1507901 (Refugee) [2016] AATA 4649 (1 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507901

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Tania Flood

DATE:1 November 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.

Statement made on 01 November 2016 at 3:55pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who claims to be a citizen of Bangladesh, applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] May 2015.

3. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa. Although the delegate refused the application as an application for a Protection (Class XA) visa, the effect of r.2.08F is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD) visa.

4. The applicant appeared before the Tribunal on 11 October 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

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

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

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

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

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

    The issue in this case is whether there is a real chance the applicant will suffer serious harm for a Convention reason on return to Bangladesh or alternatively, whether there are substantial grounds for believing there is a real risk he will suffer significant harm if removed from Australia to Bangladesh.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Summary of claims

11. In an entry interview held [in] June 2013 the applicant claimed the following:

12. His father was involved with Jamaat-e-Islamiya and had a [shop].  After his father’s death he and his [Relative 1] ran the shop.  They were harassed by Awami League supporters who asked them for donations and damaged their shop several times.  The last time was in August 2008.  He was also a supporter of Jamaat-e-Islamiya and like his father, he promoted the party.  He also went to protest marches between August and September 2008.

13. In a written statement dated 4 August 2013 the applicant claims the following:

14. He is Bengali and a Muslim. 

15. He was born in [a village in] [District 1], Bangladesh.  His parents [and siblings] live in Bangladesh.  He is married and his wife lives in [Country 1].  His [children] live with his [specified relatives] in [Country 2].  His wife is working in [Country 1] on a work visa and cannot look after their children.

16. His father was a member of the Jamaat-e-Islamiya group which is associated with the BNP party.  He was very active in politics. 

17. After his father died his [Relative 1], [named] looked after his father’s shop and they became the owners of the shop. 

18. He and his [Relative 1] also support Jamaat-e-Islamiya and the BNP party.  They often attended rallies supporting Jamaat-e-Islamiya and the BNP.

19. In about October or November 2008 several Awami group members came into his shop. They asked for money and when he said no they beat him with their fists and feet and stole money and damaged the shop.  There were about 15 men involved and he knew some of them personally. 

20. He did not report the matter to police because he knew they would do nothing.  He had previously reported a similar attack but the police took no action to investigate it.  The police generally take no action against members of the Awami group because they are in government.

21. He left Bangladesh in February 2009 because he wanted to escape this harassment.  He stayed in [Country 1] for about [number] years even though he entered on a [temporary] visa.  In that time he met his wife and they married in [Country 2] in 2001. 

22. He fears he will be harmed by people associated with the Awami party because of his political beliefs.  [Relative 1] also left the country in 1996 for the same reasons.

23. Relocation is not reasonable because the Awami party is all over Bangladesh and he has no relatives, friends or contacts anywhere else in his country.

24. Evidence to the Tribunal

25. In a submission dated 10 October 2016 it is claimed:

26. The essential and significant reasons for the applicant’s fear of persecution is because of his political opinion as an active and vocal Jamaat-e-Islami (JI) supporter, in opposition to the ruling Awami League.

27. Since the delegate’s decision, the applicant has moved from [a rural area] to [City 1]’s [Suburb 1].  The move has allowed him to socialise with other Muslims, in particular Bengali supporters of [JI]. There were no Muslims in [the rural area] so at that time he was not able to engross his interest in JI politics.  He is now a very active supporter both in the [Suburb 1] community and online.  Various screenshots of posts on the applicant’s [social media] page demonstrate his support for JI policies, anger at the execution of its leaders and anger at police violence toward JI supporters.  One [social media] post of [a date in] May 2016 contains a series of photos that he uploaded after he attended a rally [protesting] against the execution of JI Leader, Motiur Rahman Nizami.  He has also shared posts by Bangladesh Islami Chhatrashibir, the student wing of JI.

28. There is credible information to support the view that the Awami League are intent on stamping out all supporters of JI from Bangladesh and are and will continue to use violence to achieve this aim.

29. The Awami League recently accused protesters of the building of a power plant of being JI supporters as a way of justifying a crack-down on their activities.  The sons of former JI members are being arrested by the ruling Government with no charges laid against them and no information given their families as to their location.  One son states that his only support for JI has been on his [social media] page, suggesting that the ruling government is concerned about the expression of political beliefs online.

30. A United States Department of State report on human rights conditions in Bangladesh in 2015 states that the government restricted some access to the internet and censored online content, and there were credible reports that the government monitored private online communications.

31. There are now concerns that a new cyber security bill will restrict freedom of speech and will enable the ruling government to locate people who politically oppose them.

32. Based on independent information there is a real chance the applicant’s online activities will be monitored by the authorities on return to Bangladesh and that his anti-Awami league views and pro JI views will become known to the ruling government who will seek to persecute him through prosecution under laws that contain penalties grossly disproportionate to the crime, not appropriate and adapted to a legitimate state objective and discriminate against those who hold views in opposition to the ruling government.

33. The Awami League members who attempted to extort the applicant before he left Bangladesh were likely to have been local mastaans, the term for local strongmen or mafia, whose activities generally focus on crimes for profit and electoral violence.   Extortion, harassment and acts of political violence committed by AL members are still major problems in Bangladesh and the government has failed to crack down on extortion because Awami League members and law enforcement officers are the ones engaged in the illegal practice.

34. The applicant’s political beliefs are fundamental to his conscience.  If he returns to Bangladesh where politics is a part of everyday life, he will not be able to withhold the expression of his beliefs and to stand up for what he believes in. 

35. If the applicant returns to Bangladesh, he is also likely to work in business as he has done in the past and will thereby be exposed to extortion from local Awami League members and mastaans as a means to harass and intimidate him for his support of JI.  He is likely to refuse to comply with the demands and will thereby be subject to serious harm in the form of physical violence and/or disappearance.

36. It is clear that the party in government uses their political power to influence the operations of the police and the court and the applicant cannot expect any form of protection from Awami League members and mastaans seeking to seriously harm him because of his support of JI.

37. Relocation is not an option for the applicant because his feared persecutor is the ruling government who have effective control over the entire country and its use of mastaans and government security forces to exhort violence and suppress its opponents is endemic.

38. The applicant’s affiliation to JI would quickly become known in any area to which he might move and may already be known due to his active support of JI on social media. 

39. The applicant would not be able to lead a relatively normal life if forced to move to a place where he had no family support.  Such internal relocation would be unduly harsh and therefore unreasonable.

40. Given the applicant’s lack of family support, combined with his limited education and skill set and no referees to assist him in obtaining employment, he will not be able to find a place to live or job to enable him to subsist.  If forced to live in Dhaka, he is likely to end up in a slum and/or evicted from a slum, unable to fend for himself and lead a relatively normal life.  As an outsider with no protective support networks, he will no doubt come to the adverse attention of the locals in any city, town or village that he moves to, thereby exposing him to the risk of kidnapping and extortion.

41. It is the applicant’s fundamental right not to have to change his political beliefs in order to be protected in another part of his home country.

    Tribunal hearing

42. The applicant appeared before the Tribunal to give evidence on 11 October 2015.

43. By way of background the applicant stated that he was born on [date] in [a village in] [District 1], Bangladesh.  He married [a Country 2] citizen whom he met in [Country 1] [in] 2001 in a religious ceremony in [Country 2].  His wife lives and works in [Country 1] and their [children] live with their [specified relatives] in [Country 2]. He was unable to apply for [Country 2] residency because the two times he has travelled to [Country 2], including to be married, was illegally.  The boss of his wife tried to help him to regularise his visa status in [Country 1] but was unsuccessful.

44. The applicant stated that immediately before departing Bangladesh in 2009 he was staying with his [Relative 2] in [Village 1] village which is approximately [distance] from his village.  At that time members of the Awami League were looking for him and he went to take shelter with his [Relative 2].  His father is deceased since 1993 and his mother and [siblings] remain in Bangladesh.  His [Relative 1] has lived in [Country 1] since about 1995 due to his past problems with the Awami League.  At the moment his mother has moved to her [relative’s] house because Awami League members came to enquire about his whereabouts about two months ago.  Since then he has not been in communication with her.

45. In Bangladesh he completed [number] years of schooling and after that he worked in his father’s [shop] until he departed for [Country 1] in 1998.   He worked in [Country 1] from 1998-2005 and again from 2009 until 2013.  From 2008-2005 he held a visa and when he re-entered [Country 1] from Bangladesh in 2009 it was on a [temporary] visa, arranged by an agent.

46. The applicant claims to fear returning to Bangladesh because he is an active and vocal supporter of JI as were the rest of his family in Bangladesh.  Neither he, his father or [Relative 1] were members of JI but they promoted the party and attended rallies.  They have all experienced problems with the Awami League in the past.  In particular, when they attended rallies they were often attacked by Awami League supporters.

47. The applicant stated he commenced his involvement with JI around 1990 by participating in rallies alongside his father.  When asked why he chose to support JI he said he liked their activities and principles.  He said that after 1971 the party made efforts to develop good relations with the general public.  He said JI strives to establish fairness in society and the main aim is to establish democracy and righteousness.  He said that the party was led by Motiur Rahman Nizami until he was hanged in May 2016.

48. The applicant stated that he belonged to the electoral zone of [name] and that [name deleted] from the Awami League won the election in his area in 2008.  He said there was no JI candidate at the time but there was a BNP candidate.  He said that he did not vote in that election because at the time his relationship with the Awami League was contentious and it was difficult for him to approach the voting station.  When asked if he campaigned for JI or the BNP during that election he said he only had limited involvement by speaking to relatives and encouraging them to vote for the BNP candidate.

49. The applicant was questioned about the letter he has produced from JI in [District 1].  The applicant said that one of his cousins had obtained and sent the letter to him.  He confirmed he was aware of the contents of the letter.  The Tribunal asked why this letter states he is a member of the executive committee of [another district] when he has not mentioned anything about that role.  The applicant was unable to state why the letter says this and suggested it must be a mistake.  The Tribunal stated that it does not think such a mistake would be made by the [senior officials] of the party.  The Tribunal discussed with the applicant country information[1] which indicates that fraudulent documents are readily obtainable in Bangladesh and pointed out that it is problematic that the letter he has produced as evidence of his involvement with JI contains information which is contradictory to his claims.  The Tribunal asked the applicant to comment on this.  The applicant stated the document is genuine but confirmed he was never a member of the executive committee.

    [1] DFAT Country Report, Bangladesh, 5 July 2016; Immigration and Refugee Board of Canada, ‘Bangladesh: reports of fraudulent documents’, 20 September 2010; UK Home Office, Country Information and Guidance, Bangladesh, Background Information including actors of protection, and internal relocation, November 2014

50. When asked to speak about the issues currently facing JI in Bangladesh the applicant said that the War Crimes Tribunal is underway.  He said that the Supreme Court declared the party illegal in August 2013 and subsequently JI is not allowed to contest elections.

51. The applicant was asked about his recent political activity in Australia, noting the claim he has become a very active supporter of JI since relocating to [City 1].  When asked what JI requires of its active supporters he said that if he sees something going wrong in front of him he should protest about it.  He said he has to be alert to others trying to oppress them and to always fight for fairness in society.

52. When asked about his political activity in [City 1] he said that he attended a protest near [a location in Suburb 1] after Nizami was hanged.  Apart from that he attends some discussions with other party members at the mosque.  He said they have discussed the filing of false cases against JI people and the war crimes tribunal and subsequent hangings of JI leaders.  When asked if he played an active role in the protest at [Suburb 1] he said he had only just arrived to [City 1] and was only a participant.  He confirmed he took the photographs of the protest which have been included in submissions and that is why he does not appear in the photographs.  The Tribunal put it to the applicant that the level of activity he has described does not support the claim he is a very active supporter of JI. In reply he stated that there is not a lot of scope to be politically active in [City 1].

53. Referring to his [social media] activity the applicant was asked how long he has had an account and he replied it has been [number range] years.  The Tribunal asked why his [social media] posts about political issues only commenced in May 2016.  He stated that in fact he started making these type of posts roughly about two years ago.  The Tribunal asked the applicant to reveal those posts from two years ago and after a discussion with his representative he changed his evidence and said that he didn’t formerly post articles, rather he [forwarded the entries] of other people and this history of activity is not able to be proven.

1. The Tribunal asked the applicant what motivated him to start making posts about political issues.  He said that he liked to share news with friends.  The Tribunal asked why the Bangladesh authorities or anybody else would be interested in his posts particularly as he appears to only share news reports which are publicly available rather than posting his own political commentary.  He said that he has not received any threats because of these posts but as he mentioned earlier his mother was recently approached by Awami League members.  He said this occurred after he posted reports about the death of Nizami.  He said those people asked his mother why her son was doing these things. 

2. The Tribunal pointed out to the applicant that for the purpose of assessing his claims against the refugee criterion it is required not to have regard to any activity he has engaged in, in Australia which is solely for the purpose of strengthening his claims for protection.  The Tribunal indicated that the timing of his online and protest activities in Australia might suggest his recent political activity has been for this reason.  The applicant replied that what he has done has been for the party.  He said when he was interviewed before he was not making political posts but when he moved to [City 1] it was around the time that Nizami was hanged and that really shocked him.  He said if he wanted to get involved in activities to strengthen his claims he could have done that while he was in [the rural area].   The applicant’s representative added that his [social media] activity commenced when he reconnected with the Muslim community in [City 1] which sparked his interest in political discourse again.

3. The applicant was asked who the JI elders in the Muslim community here are.  He replied that he met a lot of people at the [Suburb 1] protest but he doesn’t know their names.  He said that most of his communication is with a [friend] who he knows from the mosque.  He was asked who leads the discussions at the mosque and he said it is people familiar with [his friend] but they don’t attend regularly.  He said he attends the mosque when he doesn’t have anything else to do.  He then stated that at the moment he goes two to three times a week.

4. Regarding his involvement in any future political activity the applicant stated that the Awami League government is trying to stamp out JI from the country.  He said that JI can no longer participate in general elections but if he goes back he will continue supporting this party.  It is a party which his father and forefathers have supported and he cannot stay away from that.  He said he will participate in rallies and meetings of JI. 

5. The applicant was asked to elaborate on the problems he claimed to experience in the running of his business.  He said that his father had a [business] [from] about 1990.  He said his father often encountered problems with Awami League activists and when he got involved in the business he was also assaulted many times.  He said his father passed away in 1993 and when his [Relative 1] left for [Country 1] he started running the business.  He said that Awami League supporters came to his shop and treated him badly.  Before the 2008 elections he said that 15-20 Awami League people appeared at the shop in the evening and ransacked the premises, broke glass frames and beat him with a hockey stick.  He said he was hit on the head, arm and leg and was bleeding.  He said other people gathered around and the Awami League people left.  After than he went to a public clinic where he was treated for roughly one month.  When he was released he moved to [Village 1] and commenced arrangements to go back to [Country 1].

6. When asked who ran the business between 1998 and 2005 he said that his family rented out the business to someone else.  When asked why his shop was attacked in 2008 he said it is because his whole family are JI supporters.  He said they faced problems in the past but back then it was only low or moderate disturbances.  In 2008 Awami League activists told him he should stop doing JI activities but he told them it was his democratic right to support his party.  He said they threatened to kill him if he continued and then beat him up.  Only when prompted did he add that they also demanded money. The Tribunal asked the applicant how he was able to escape and he said that when other people gathered around he saw an opportunity to escape and he did.  He said he came across his cousin who took him to the public clinic.

7. The Tribunal put it to the applicant that the delegates decision which is before the Tribunal for the purpose of this review, makes no mention of him stating he spent one month in a health clinic.  In fact, the Tribunal put it to him that the decision indicates he informed the delegate that he sustained only “slight injuries, nothing significant”.  Nevertheless the Tribunal asked the applicant what injuries he now claims to have sustained.  He said that his leg was broken and he couldn’t walk. 

8. In response to the above concerns, the applicant stated that he was scared to reveal everything during the delegate’s interview because he thought those matters might become publicly known.  He said that as the Tribunal had informed him everything would remain confidential he decided to say what happened.  The Tribunal indicated it was surprising he was not told by the Delegate that his interview would be confidential and he agreed that he was given that assurance but still didn’t believe it.

9. Noting that the applicant claims to have gone to [Village 1] when he was released from the clinic the Tribunal put it to him that the delegate’s decision also indicates he claimed to remain living in the same property in his home village where he undertook some [work].  He then said it was barely a month that he stayed there and then it was impossible to remain.

10. The Tribunal pointed out that he spent [number] years in [Country 1] before coming to Australia.  The Tribunal asked why he did not apply for protection in [Country 1] if he feared returning to Bangladesh.  He reiterated that his wife’s boss tried to help him but he did not have a passport.  Earlier in the hearing the applicant indicated that he was assisted to obtain a passport and [temporary] visa to [Country 1] by an agent and he said he is not sure whether that passport was genuine or not.  In any event he said that there are no rules for protecting people in [Country 1].  The Tribunal said it did not agree with that and pointed out there is a United Nations High Commission for Refugees in [Country 1] which he could have approached for help.  He said the UN only looks after people from [a certain country] and as he was illegally residing in [Country 1] it was too risky to make the journey [across Country 1] as he might be caught by the police. 

    FINDINGS AND REASONS

    Country of reference

11. The applicant has provided consistent information to the Department and the Tribunal about his identity, place of birth and citizenship of Bangladesh.  Attached to the Department file is a copy of his People’s Republic of Bangladesh Birth Certificate which confirms the same.  In the absence of information to the contrary, the Tribunal finds that the applicant is a citizen of Bangladesh and has assessed his claims against Bangladesh.

    Applicant’s claims to be an active JI and BNP supporter

12. Having considered the applicant’s claims and evidence in relation to his support for JI the Tribunal has concerns about the credibility of his claims.  The Tribunal considers the applicant was only able to speak in very general terms about the political objectives and aims of the party he claims to have a longstanding relationship with.  For instance, when asked what is expected of an active supporter or worker of JI his response was essentially that he is expected to engage in protest activity.  He made no mention of being required to promote the party or recruit new members, despite previously claiming he has been involved in such activities and nor did he mention anything in relation to religious beliefs and practices.    The Tribunal finds the latter significant as JI is the largest Islamic political party in Bangladesh and has among its aims the objective of turning Bangladesh into an Islamic state.  According to a publication by Frances Harrison in June 2013, Political Islam and the Elections in Bangladesh, there is an expectation that dedicated supporters and workers of JI are required to observe a strict religious code and demonstrate dedication to religious studies.  In this respect, the Tribunal notes the applicant’s account of his religious practice in Australia, namely that he attends mosque when he has nothing else to do, falls short of these expectations.  While the applicant demonstrated some knowledge of what is currently happening with JI in Bangladesh, this is, in the Tribunal’s view, general knowledge that has received a lot of media coverage both in Bangladesh and internationally.  

13. With regard to his claimed political activity in Bangladesh the applicant provided no detail about the political rallies he claims to have attended, including the reasons behind the rallies, how frequently he attended or where he attended these rallies.  Nor did he provide any substantive detail about what transpired at those rallies other than to claim the opposition threw bricks at them.   His brief account of events did not persuade the Tribunal that he had personally been affected by any violence at political rallies or that he regularly participated in rallies or other political activities.

14. In view of his claims to have been very active in politics and in promoting JI, the Tribunal asked the applicant about his involvement in the lead up to the 2008 election.   He did not claim to have been involved in any campaigning and his responses to questions posed by the Tribunal do not support that he was.  The Tribunal does not consider conversations with his relatives, is evidence of any involvement in political campaigning.  Also, in the Tribunal’s view, the fact he did not vote in the election also calls into question his claimed level of political involvement. In view of the low level of political awareness and involvement he has demonstrated, the Tribunal does not accept his reason for not voting.  Rather, the Tribunal considers he was not sufficiently interested or motivated to do so.

15. The applicant claims that his family’s troubles with the Awami League commenced in the 1990’s and that this eventually led to his [Relative 1] and later himself moving to [Country 1] in 1998.  However, the applicant stated at hearing that the problems they had prior to 2008 were only low level disturbances.  Based on this evidence the Tribunal is not persuaded the applicant or his [Relative 1] moved to [Country 1] in the 1990’s because they were harassed and intimidated by Awami League members for their support of JI.  Further, the applicant returned to Bangladesh in 2005 when his work visa expired which also suggests to the Tribunal his past experiences in the 1990’s were not as claimed.

16. The Tribunal also has significant concerns' regarding the applicant’s claimed past harm in 2008.  The Tribunal has considered the applicant’s responses in respect of the inconsistent evidence he has provided about the nature and severity of the injuries he claims to have sustained following a beating which occurred at his shop and his movements thereafter. The Tribunal has also had regard to the submission made by the applicant’s representative that he was reluctant to reveal the extent of his injuries because the Awami League might target him for exposing them to another government. However, the Tribunal was not persuaded by these responses.

17. The applicant agreed that the delegate had noted the proceedings of his interview would be kept confidential. He came to Australia to seek protection from persecution and revealed in written claims that his family is politically involved and came under attack by members of the Awami League for this reason.  He described being physically attacked and having his business ransacked.  The Tribunal can see no reason in the circumstances what difference it would have made to reveal the true nature of his injuries to the Delegate.  If anything, the Tribunal considers he would have mentioned this freely in his written and oral evidence if indeed it had occurred rather than stating that his injuries were not significant.  In any event, in his oral evidence to the Tribunal the applicant stated that when the attack occurred he noticed an opportunity to get away when a crowd of people gathered around and he quickly made his escape.  The Tribunal finds it implausible the applicant would have been able to escape a group of about fifteen men in this manner if he had sustained a broken leg and other serious injuries which required him to spend one month in hospital. 

18. Based on the inconsistency of his evidence to the delegate and the Tribunal regarding his movements after the attack, the Tribunal also does not accept the applicant fled to another village to stay with [his Relative 2].  The delegate’s decision indicates the applicant reported remaining in his home village for three to four months before he departed Bangladesh.  When this was put to him at the Tribunal hearing he attempted to modify this statement saying he barely spent one month there before going to his [Relative 2’s] house in [Village 1]. 

19. In view of the credibility concerns the Tribunal has about key aspects of the applicant’s evidence the Tribunal does not accept the above response.  Rather, the Tribunal considers this evidence has been fabricated for the purpose of strengthening his claims.  In this respect the Tribunal notes that at the commencement of the hearing the applicant made the point of stating he was living in [Village 1] immediately prior to departing Bangladesh.  He also said that his mother no longer resides in his home village because of problems she has recently encountered with Awami League members in relation to his political activities.  At the time of his interview with the Delegate no mention was made of his mother facing problems with any Awami League members and the Tribunal finds it coincidental that these issues have arisen just two months prior to the Tribunal hearing when it has been several years since his claimed attack in 2008 and his departure from Bangladesh in 2009. For reasons explained below, the Tribunal does not accept that Awami League supporters came to question the applicant’s mother because of his recent [social media] activity and given the Tribunal’s concerns about his claimed level of political involvement the Tribunal is also not persuaded by the submissions made by the applicant’s representative at hearing, namely that given his family were JI supporters it could be that Awami League supporters were just going around to harass known JI families or alternatively they may have heard through the grapevine about his [social media] posts.   On the information before it the Tribunal does not accept the applicant fled to [Village 1] or that his mother was forced to move away from their home village due to harassment and intimidation by Awami League members.

20. Further, the Tribunal finds it significant that the applicant, who claims he was forced to flee the country after he was attacked by members of the Awami League, did not make any attempt to claim protection in the four years he spent living in [Country 1]. Based on his comments about the UN only helping people from [a certain country] the Tribunal is satisfied the applicant was aware of the possibilities for people to seek protection in [Country 1].  His discussion of how his wife’s boss attempted to help him obtain a visa to remain in [Country 1] did not persuade the Tribunal that he or anybody on his behalf had approached the UNHCR for assistance.  It might be the case that some efforts were made to regularise his visa status in [Country 1] on account of his wife holding a valid work permit, but the Tribunal is not satisfied the applicant attempted to seek protection from either the [Country 1] authorities or through the United Nations. The Tribunal is not persuaded that this was because of concerns about the validity of his passport.  The Tribunal considers the applicant’s inaction in this respect undermines his claims to have fled Bangladesh in fear for his life and to fear returning to Bangladesh.

21. The Tribunal also finds the letter of support from the [District 1] Branch of JI to be problematic and has given it no weight.   The applicant has made no claim to have been a member of the executive committee as stated in the letter.  Despite claiming to be aware of the contents of this letter the applicant made no attempt at hearing to rectify this mistake before it was pointed out to him and could provide no plausible explanation as to why the letter claimed he had this level of political involvement with JI.  The Tribunal does not find it plausible that senior members of the [District 1] Branch would make such an error.  The Tribunal is satisfied the applicant played no such role in JI and finds the fact he was prepared to provide documentation in support of his application which clearly contains information which is not true, calls into question the credibility of his claims.

22. As noted above, the Tribunal also has concerns about the applicant’s recent political activity in Australia.  It is submitted that the applicant has been motivated to re-engage with politics now that he has moved to [City 1] and is in contact with other Muslims and JI sympathisers.  On the evidence before it, the Tribunal finds it more likely that on his return to [City 1] the applicant has been advised by members of his community that his claims for protection will be strengthened if he can demonstrate a greater level of political involvement.  Despite claiming to have become very active and vocal in his support for JI, in reality the applicant has only attended one protest meeting since coming to [City 1].   Other than this he claims he attends some discussion groups in the mosque but when questioned about this he was unable to identify the leaders of these discussions and again the level of detail he provided about the discussion topics was general and in relation to high profile events covered by the media. 

23. On the evidence before it the Tribunal does not accept the applicant has a long history of sharing or liking political posts on [social media].  The Tribunal accepts that since May 2016 the applicant has shared some news reports about JI’s participation in the political process in Bangladesh including reports about the execution of JI leaders.  However, as noted at hearing the applicant has made no personal comments or statements about these posts and the Tribunal is of the view the posts have been made for the sole purpose of strengthening his claims for protection.  For this reason and pursuant to s.91(R)(3) of the Act the Tribunal has disregarded this activity for the purposes of assessing his claims against the refugee criterion. 

24. As to whether there are substantial grounds for believing there is a real risk the applicant will suffer significant harm on return to Bangladesh for reason of his online activity, the Tribunal has considered the likelihood of the applicant’s [social media] activity coming to the adverse attention of the Bangladeshi authorities or members of the Awami League in light of the information provided on the applicant’s behalf in submissions made to the Tribunal.  The Tribunal accepts that there is some evidence of government censoring and monitoring of online content in Bangladesh.  However, according to a report of the US Department of State on human rights practices in Bangladesh, 2015, mobile phone operators reported approximately 1.5 million internet subscribers and more than 41.3 million additional mobile internet users. According to the International Telecommunication union, approximately 6.5 per cent of the population used the internet in 2013.  The report goes on to state that individuals and groups still do generally engage in the expression of views via the internet albeit that some activists have stated they fear prosecution under the Information and Communication Technology Act and have limited their online speech.

1. The Tribunal is not persuaded on the information before it that it is probable the Bangladeshi authorities are monitoring the internet communications of all registered internet subscribers.  The Tribunal does not find the applicant has a high level of political consciousness or that he is a known anti-government or JI political activist whose online activities are more likely to be monitored.  In view of his political profile and his limited activity to date, the Tribunal is not persuaded the applicant’s online activity has or is likely to be monitored by government officials or members or supporters of the Awami League.  The Tribunal is satisfied his past online activity will not place him at risk of significant harm. 

2. Further, the Tribunal is satisfied there is not a real chance or real risk the applicant will suffer serious or significant harm in the future for this reason.  Based on the information before it, the Tribunal is not persuaded the applicant will engage in politically motivated online activity on return to Bangladesh which would be deemed to be anti-government or anti-Awami League.  The Tribunal has concluded that this will not be due to fear of harm from either the government or Awami League members or supporters but rather because he is not genuinely motivated to do so and does not have the political profile or interest he claims to have.

3. Having considered all the applicant’s claims, all the evidence and the submissions, the Tribunal finds that the applicant is not a witness of truth.  The Tribunal does not accept that the applicant or any member of his family was a supporter, member or was in any way associated with JI or the BNP.  The Tribunal does not accept that he or his [Relative 1] were forced to move to [Country 1] in the 1990’s to avoid harassment, intimidation and harm from Awami League members.  Nor does the Tribunal accept the applicant was physically attacked and seriously harmed by members of the Awami League in 2008 because of his support for JI or the BNP or forced to flee his home village and ultimately return to [Country 1] in 2009 to avoid being seriously harmed.  The Tribunal does not accept that members of the Awami League are continuing to look for him or that his mother has been forced to relocate to avoid harassment and intimidation by Awami League members.  The Tribunal does not accept the applicant has political beliefs which are fundamental to his conscience, that he has become politicised since moving to [City 1] or that he is or will be a genuine supporter or member of JI or the BNP or to be in any way associated with JI or the BNP if he returns to Bangladesh now or in the reasonably foreseeable future. 

   Claim the applicant is likely to work in business if he returns to Bangladesh and will therefore be exposed to extortion and harm at the hands of the Awami League

4. While the applicant claims his family ran a [business] his evidence is that the business was ransacked in 2008 and is no longer operating. The Tribunal finds there is a speculative element to this claim and finds it significant that the applicant previously lived in [Country 1] for a total of eleven years without resorting to establishing his own business.  Instead he undertook paid employment.  The Tribunal considers this past employment history does not support he will necessarily return to work in business on return to Bangladesh.  In the event he does, the Tribunal has found that he was not and will not be a supporter of JI, or associated with JI or the BNP in any way on return to Bangladesh.  While the Tribunal acknowledges that AL members and activists have reportedly extorted BNP business owners in rural areas, threatening them with violence if they fail to comply with demands for money[2], in view of its findings about his support for JI or the BNP, the Tribunal is not satisfied that there is a real chance or risk he will be targeted for harm for this reason. 

   [2] DFAT country information report, Bangladesh, 5 July 2016

5. Therefore, having considered the applicant’s circumstances and evidence individually and cumulatively, for the reasons set out above, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm for reason of actual or imputed political opinion or for continuing to work in business on return to Bangladesh or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh, there is a real risk he will suffer significant harm for the reasons claimed or for any other reason.   

   CONCLUSION

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

7. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

   DECISION

8. The Tribunal sets aside the decision to refuse to grant the applicant a Protection (Class XA) visa and substitutes a decision to refuse to grant the applicant a Protection (Class XD) visa.

   Tania Flood
   Member