1507912 (Refugee)

[2016] AATA 4780

1507912 (Refugee) [2016] AATA 4780 (2 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507912

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Tania Flood

DATE:2 December 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 02 December 2016 at 11:06am

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.

CATCHWORDS
Refugee – Protection visa – Bangladesh – Dispute with employer – Employer’s political connections – Applicant opposition party member – Persecution – No state protection – Relocation unreasonable

LEGISLATION
Migration Act 1958,ss.36(2)(a), (aa), (b), (c), 499
Migration Regulations 1994

SECONDARY MATERIAL

DFAT Country Information Report, Bangladesh, 5 July 2016

Asian Human Rights Commission, Collapsed criminal justice system compounds violence against women, 21 May 2013

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] August 2014 and the delegate refused to grant the visa [in] May 2015.

3. The applicant appeared before the Tribunal on 16 November 2016 to give evidence and present arguments.  

   THE LAW

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

5. 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).

6. 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.

7. 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’).

8. 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.

   ISSUES

9. The issue in this case is whether there is a real chance the applicant will suffer serious harm for a Convention reason if he returns 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 matter should be remitted for reconsideration.

   SUMMARY OF CLAIMS

10. In his application for a Protection visa the applicant claims the following:

11. He came to Australia for work and holiday purposes.

12. He is an active member of the BNP in [District 1] and is in constant fear of being kidnapped and killed by the current ruling party.  Since the last election everything has changed in Bangladesh but he was less fearful as he was in Australia.

13. His father died [in] January 2014 and he returned to Bangladesh to show his grief [in] January 2014.  During his visit local political people approached him and demanded BDT[amount] claiming because he was living in Australia he had a better lifestyle.  He told them he would try to arrange the money within the month.  As the people are current government cadres he feared they may kill him and [in] February 2014 he organised a ticket to travel back to Australia.

14. Since he left, other family members are telling him that the political leader, ‘[name deleted]’ is demanding money and if they do not receive the money they will kidnap or kill him.

15. In an interview with the Department held [in] May 2015, the applicant stated:

16. He fears returning to Bangladesh because some members of his family were supporters of a party in opposition to the Awami League and as a result false charges have been initiated against members of his family.  If he returns to Bangladesh his name will be included in the false charge.

17. He is not currently a member or supporter of any political party in Bangladesh.

18. His written claims were written by a friend, he only signed the application.

19. In an email to the Tribunal dated 31 August 2016 the applicant claims:

20. He was working as a [occupation] at [Company 1] which is a sub-contractor of [Company 2].  The proprietor of [Company 1], [Mr A], is from Bangladesh.  He worked there for more than two years and was financially exploited.  [Mr A] is a powerful person in Bangladesh and has good connections with political parties and high government officials.  Recently, the police were sent to his house in Bangladesh and his family were harassed after he filed a case with [Agency 1].  He will also face persecution and imprisonment if he returns to Bangladesh due to [Mr A]’s connections.

21. Email correspondence between the applicant and [Company 2] and the applicant and [Agency 1] are attached.  In an email to [Agency 1] dated [in] July 2016 it is asserted that [in] July 2016 his mother and [sibling] were taken to the [police] station and were interrogated by the Officer in [Charge].  The next day his [sibling] was taken to [District 1] Special Branch office and `interrogated there.  [A senior officer] of [District 1] Special Branch threatened his [sibling] and told [the sibling] to ask the applicant to resolve the matter with [Mr A] otherwise he will be falsely accused.  The [senior officer] also told his [sibling] that [Mr A] is a very powerful person in Bangladesh and he has a good relationship with the [Senior Officer 1] in Bangladesh, [who] usually stays with [Mr A] when he visits Australia.  The [senior officer] told his [sibling] that [the] family will be harassed if [they do] not resolve the matter immediately.  His family have advised him not to return to Bangladesh as he might be falsely accused and incarcerated.

    FINDINGS AND REASONS

    Country of reference

22. The applicant produced a copy of his People’s Republic of Bangladesh passport numbered [number deleted] at hearing which confirms his claimed identity, date of birth and citizenship.  The Tribunal accepts that Bangladesh is the applicant’s country of nationality for the purposes of the Convention and also the receiving country for the purposes of s.36(2)(aa) of the Act.

23. The applicant stated at hearing that he does not have citizenship of any other country or the right to enter and reside in any other country.  In the absence of information to the contrary, the Tribunal accepts this evidence and finds the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.

24. The applicant initially claimed that he fears returning to Bangladesh because of his and his family’s active support for the BNP and because on his last trip home to Bangladesh a local Awami League leader attempted to extort a sum of money from him and has threatened to kidnap or kill him.  For reasons, which are outlined below, the Tribunal has not found it necessary to make any definitive findings about these claims.

    Fear of [Mr A]

25. As can be seen from the summary of claims above the applicant fears returning to Bangladesh because he has brought proceedings against his former employer in Australia, [Mr A], through [Agency 1].  The applicant claims he has exposed [Mr A]’s illegal employment practices, namely employment of persons with no legal right to work in the country and gross underpayment of employees including him.  These claims are supported by extensive documentation provided by the applicant including copies of emails between himself and [Agency 1] concerning the progress of an investigation into his allegations, as well as various emails between himself and [Company 2] for whom [Mr A]’s company was subcontracted to provide [work].

26. At the Tribunal hearing the applicant expanded upon his claims.  He claims that when he commenced working for [Mr A] he had a [temporary] visa.  He said he desired to remain in Australia but needed a sponsor to obtain a further [visa].  He said [Mr A], being from his home country, offered to help him and underpaid him on the promise that he was retaining additional funds to obtain a sponsorship deal for him.  He said that when his visa was nearing completion he began pushing [Mr A] to keep his promise.  When nothing happened he informed [Company 2], [another agency] and [Agency 1] about his situation and the situation of many other employees suffering the same fate.  He said that soon after he was sacked from his employment.

27. When asked why he should fear returning to Bangladesh because of this situation the applicant stated that [Mr A] has a very close relationship with [Senior Officer 1] in Bangladesh and the Awami League government.    The applicant stated that [Mr A] also has business dealings in Bangladesh and returns there often.  He said that following one of these visits [police] officers went to his home and threatened his mother and [sibling] stating that he had to resolve the matter with [Mr A].  He said they were taken to [a] Police Station in [District 1] and held there for three or four hours before they were released.

28. The applicant stated that after the visit to the [Police] Station his [sibling] was taken to [another] Police Station and the [senior officer] threatened his [sibling] in the same manner.  He said that since then members of the Awami League continue to push and threaten his mother and [sibling] when they encounter them.  He stated that his mother received a threatening phone call just last week.  He confirmed that to date they have just been threatened and have come to no physical harm.  When asked if they had reported the matter to any higher authority he said they have not because [Mr A] is a friend of [Senior Officer 1].

29. The Tribunal asked for further information about [Mr A] and the applicant stated he is from [location] and is related to [name] who was the Minister for [ministry].  He said that [Mr A] is aligned with the Awami League government in Bangladesh but he is an Australian citizen and has lived in Australia for around [number] years.  He repeated he is a friend of [Senior Officer 1] and added that he owns [an organisation] in Bangladesh and associates with [a senior Australian official] in Dhaka.  At hearing, the applicant produced numerous copies of screenshots from Facebook, which show [Mr A] photographed with [Senior Officer 1] at his office and home in Dhaka and in [Australia] during a visit, with [the] Minister for [ministry] and with [an official] of the Australian [agency] at his [organisation] in Dhaka. 

30. The Tribunal asked the applicant whether [Mr A] had personally threatened him in Australia and he said he has not.  However, he said that [Mr A]’s [relative], who works as his supervisor, sent a colleague to his home to tell him to withdraw his case.  He said he went to report the incident at [a] Police station but they told him there was no direct threat.

31. The Tribunal asked why he has not dropped the case if he and his family are at such risk of harm.  He said that the situation has gone too far and that [Agency 1]’s investigation has progressed to the point that they are now calculating his entitlement to back payments.  He said he was asked to provide a copy of his log of hours and bank details showing how much he was paid.  He said that he has also supplied the names of other people similarly affected to [Agency 1] and that the matter is not going to go away.   The latter is confirmed in email correspondence produced at hearing.  The applicant said that [Mr A] stands to lose a great deal and he will seek revenge on him for this as threatened already.

32. The Tribunal considers the applicant has provided a credible and plausible account of his former employment situation and subsequent complaints to [Company 2] and [Agency 1] which is supported by documentation produced at hearing.  The Tribunal accepts the applicant was employed by [Mr A], that he was underpaid alongside others similarly working outside their visa conditions, that he complained to [Company 2] and [Agency 1] and that an investigation into the dealings of [Mr A]’s company is underway.  Based on the evidence before it, the Tribunal also accepts that the applicant’s former employer, [Mr A], is a well-known and influential businessman with connections to parliamentarians in the ruling Awami League government in Bangladesh and close personal ties to [Senior Officer 1]. 

33. In view of the fact the Tribunal has found the applicant’s account of these events to be credible it finds it plausible and is also prepared to accept his claims that his mother and [sibling] have been threatened by police in Bangladesh in a bid to get the applicant to resolve the issue with [Mr A].   The Tribunal accepts that [Mr A]’s reputation and business dealings in Australia might be damaged as a result of the applicant’s actions and that he will possibly incur financial and legal penalties.  The Tribunal accepts it is likely he will seek to exact revenge on the applicant as claimed.  The Tribunal finds it plausible that [Mr A] will wait to exact this revenge on the applicant until he returns to Bangladesh where the consequences of his actions are likely, for reasons outlined below, to go unpunished.

34. Notwithstanding the above, the Tribunal put it to the applicant at hearing that the harm he fears from [Mr A] does not appear to be for a Convention reason but rather an act of personal revenge.  The Tribunal acknowledged that if he were to return to Bangladesh and seek and be denied police protection for a Convention reason then his claims would fall within the definition of a refugee. The applicant responded that he could not seek protection from the police if he is threatened on return to Bangladesh because [Mr A] is affiliated with the ruling Awami League party and [Senior Officer 1] and the police act on the directions of the Awami League.   For the reasons outlined above, the Tribunal accepts that [Mr A] has links to parliamentarians in the ruling Awami League and is closely connected to [Senior Officer 1].

35. In arriving at its decision the Tribunal has had regard to the following relevant country information:

    DFAT’s most recent reporting on state protection in Bangladesh[1], acknowledges that political manipulation and corruption operate to constrain the rule of law.  The report notes International Crisis Group advice that political and bureaucratic interference is a significant impediment to police efficiency.  BNP and AL governments have both used the police to undermine opposition forces, and many politicians have used the police to advance their political interests.  While it is noted that senior officers are relatively well trained, the lower ranks are often poorly paid, trained and equipped. 

    A report published by Landinfo, the Norwegian Country of Origin Information Centre, dated 4 July 2013, states in its summary that the police force in Bangladesh is generally inefficient, and corruption is widespread at all levels.  Low wages, lack of education and poor working conditions contribute to maintain corruption and susceptibility to pressure.  Police investigation of criminal offenses is often inadequate and the police can be reluctant to investigate persons affiliated with the ruling political party.  Malicious accusations and fabricated cases occur in order to frame personal and political enemies and to achieve financial gain.

    The Asian Human Rights Commission noted in 2013[2] that in Bangladesh’s criminal justice system practically every step requires bribery and persuasion by influential persons from the ruling political parties.  Complainants have to pay bribes to police officers to register complaints, along with using their political connections to pressure the police and others involved in the process.  Often, the perpetrators become very influential due to their capacity to pay a higher bribe to the police and manage to ensure backings from the ruling political parties.  The police protect the perpetrators, receiving bribes and/or following political persuasions.

    A UK Home Office report of November 2014, quotes various sources (US State Department, Odhikar and Human Rights Watch) who report the Bangladesh security forces commit abuses of power and act with impunity.

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

    [2] Asian Human Rights Commission, Collapsed criminal justice system compounds violence against women, 21 May 2013.

36. Given the independent reporting on the extent of corruption, the lack of police efficacy and the political affiliations of the Bangladeshi security forces, the Tribunal is persuaded by the applicant’s claim that police protection will not be available to him in Bangladesh due to [Mr A]’s political affiliations and connections.  The Tribunal accepts there is a real chance the applicant could be physically harmed by members of the security forces acting on instructions from [Mr A]’s Awami League associates and/or close friend, [Senior Officer 1], or that he could become the victim of false accusations and be detained or falsely imprisoned.  The Tribunal is satisfied the applicant is unwilling and unable to access adequate state protection against the harm he fears on return to Bangladesh.

37. The issue of whether it would be reasonable to expect an applicant to relocate within their country only arises if the circumstances indicate that there is a region where there is no appreciable risk of the occurrence of the feared harm.  In view of [Mr A]’s close personal ties to [Senior Officer 1] and the Awami League the Tribunal considers there is a real chance his whereabouts could be detected through official channels wherever he resides in Bangladesh.  The Tribunal is satisfied that relocation is not a safe option for the applicant in these circumstances.

1. For these reasons, the Tribunal finds the applicant has a well-founded fear of persecution if he returns to Bangladesh now or in the reasonably foreseeable future.

   CONCLUSION

2. The Tribunal is satisfied the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a) of the Act.

   DECISION

3. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   Tania Flood
   Member