1508911 (Refugee)

[2017] AATA 199

1508911 (Refugee) [2017] AATA 199 (2 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1508911

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Gabrielle Cullen

DATE:2 February 2017

PLACE OF DECISION:  Sydney

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

Statement made on 02 February 2017 at 11:00am

CATCHWORDS

Protection visa – Bangladesh – Political opinion – Bangladesh National Party activist – Jatiyabadi Chattra Dal activist – Opposition to Awami League Government – Threats of physical violence – Politically-motivated arrests – Extra-judicial killings

LEGISLATION

Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994 Schedule 2

CASES

MIMA V KHAWAR [2002] HCA 14; (2002) 210 CLR 1

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, a citizen of Bangladesh and born in Sylhet District, departed Bangladesh for Australia [in] August 2014. He fears return from Awami League activists, including those associated with the Chattra League, the student arm of the Awami League, and the police on account of his involvement with the Jatiyabadi Chattra Dal (JCD) and Bangladesh National Party (BNP). He fears for his safety and that he will be arrested and detained on return. The applicant applied for protection [in] October 2014.

3. [In] June 2015 the applicant was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.

4. The delegate refused to grant the visa [later in] June 2015[1] on the basis that the applicant was not a credible witness as to the difficulties he claims he faced in Bangladesh due to his political involvement. While accepting he was a low level supporter of the JCD and the BNP from 2010 and may have faced some instances of political violence, he did not accept the applicant was targeted by his political opponents or the police in the manner claimed. He also did not accept the applicant feared for his life after the Awami League government retained power in January 2014.

   [1] The decision was attached to the Application for Review.

5. The applicant appeared before the Tribunal on 24 January 2017 to give evidence and present arguments and where relevant the evidence from that hearing appears in this decision. The applicant was assisted with an interpreter in the Bengali and English languages.

6. The issues to be considered in this case are as follows.

   ·Is the applicant credible as to his claims?

   ·Does the applicant have a well-founded fear of persecution in relation to Bangladesh and meet the protection obligations under the Refugees Convention?

   ·Does he meet the protection obligations under the complementary protection provisions of the Migration Act?

   RELEVANT LAW

7. 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.

8. 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).

9. 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.

10. 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’).

11. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following.

    ·The applicant’s protection visa application [in] Octboer 2014, attached statement and identity documents.

    ·Oral evidence provided at the Department interview held [in] June 2015 and Tribunal hearing held on 25 January 2017.

    ·Written submission dated 2 July 2015.

    ·DFAT DFAT Country Report Bangladesh 5 July 2016.

    ·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.

13. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

    Is the applicant credible as to his claims?

    The Applicant’s Claims

14. The applicant claims in his application to have experienced physical and mental harm in Bangladesh due to his political belief. He claims if he returned he will be at risk of physical assault. He claims he fears return from the police and Awami League supporters, and he will be harmed as he was heavily involved in the politics of BNP. He claims he will be unable to obtain protection as he is involved with the opposition political party.

15. He claims in his statement attached to his application that while studying his HSC at Sylhet from [specified year] to [year] he became involved in the politics of the JCD, the student arm of the BNP. He claims he became a member in 2010 and was an active member.

16. He claims after the Awami League came to power in 2008, he was involved in all movements with the BNP against the Awami League, especially the movement demanding parliamentary elections under the caretaker government. He claims he attended meetings, rallies, hartels and picketed against the Awami League Government. He claims their meetings were attacked by the Awami League government a few times and the police always acted against them. He claims he was a victim of physical assault on a few occasions; his life was under threat so to save himself he fled Bangladesh to come to Australia.

17. He claims since the Awami League came to power in January 2014 he did not feel safe in Bangladesh and was suffering mentally before he left Bangladesh, including not being able to study or sleep properly. He claims during this time many BNP leaders and workers were arrested and targeted by members of the police and Awami League activists. He claims he was a victim and spent his life in fear in Bangladesh. He claims his life will be under threat on return to Bangladesh.

18. He claims while he was at [his] College [Mr A] was the leader of the Chatra Dal and encouraged him to play an active role with the BNP both inside and outside College. He claims in 2013 the BNP was able to create a strong resistance against the government on the side of a caretaker government, he claims he started to participate in meetings and demonstrations and pickets organised by his party in the College and in Sylhet. He claims when their leader, Elias Ali, disappeared he participated in protests for his release and his activities brought him to the attention of the Awami League.

19. He claims in July 2014 he was organising meetings in his College criticising the activities of the government and all of a sudden a group of Awami League activists attacked them. He claims some of them were seriously injured and a few of them were injured. He claims he was involved and since then the Awami League activists have been seeking to take revenge against him.

20. He claims he is a victim of the situation and the Awami League and the government has been targeting BNP leaders and workers. He claims he was unable to lead his life normally and his family home was attacked by them. He claims he was traumatised and had no other option but to leave Bangladesh.

21. He claims on return he will be harmed because of his political belief, his life will be under threat and he will be arrested and detained. He also claims he will face discrimination and be punished in relation to the false case due to his political opinion.

22. He claims since he has come to Australia he has kept in regular contact with family and friends and has been informed that the police are looking for him. He claims they visited his home a few time to arrest him and many of his peer political workers have been arrested and detained under the Special Power Act. He claims his family members have told him not to return. He claims as the government is detaining his party members he cannot obtain protection from them. He claims the Awami League activists will look for him if he returns due to his political profile and he has been warned not to return.

23. At the Department interview the applicant added he was assaulted five times by activists of the Chattra League (CL), the student movement of the Awami League; twice while attending meetings at his College, and three times during rallies. He said other JCD and BNP people were also assaulted on those occasions and the first assault occurred in 2010 and the last in 2013. He added that he was assaulted three times in 2013. He said he was not injured in any of the assaults. He indicated that his political opponents attacked him at his home [in] December 2013 when he was visiting his mother. He said the attackers were CL people from the College but he was unsure how many there were as he was inside the house. He said his mother opened the door and four or five CL people came in and they accused him of taking people from their group and then a fight broke out. He said his mother stopped the fight and the CL people left. He said the only damage to the house was a broken [appliance].

24. He said he started staying at relatives houses in March 2013 due to his fear of being harmed. When asked to explain how he was at home when the fight occurred in December 2013, he said he was going home in the day but spending nights at his relatives’ houses. He said he went to his home weekly or monthly but did not stay at home at night. He also referred to Jamaat (JeI) visiting his home but did not substantiate this claim.

25. At the Department interview the applicant also referred to the police visiting his home to arrest him since he had been in Australia on a few occasions. He said the first visit by police occurred in August 2013 and the last that he was aware of was in January 2015. He said in August 2013 CL people went inside the home and the police waited outside. He said the police act on the orders of the Awami League.

26. He also added that his mother travelled with him to Australia but that she returned to Bangladesh. He said on return she had lived in the family home for a month but moved to a different locality. He said the reason for the move was that CL people came to the family home looking for him.

27. A number of concerns as to the credibility of the difficulties he claimed to have faced were raised and whether he was in hiding.

28. In his submission to the Tribunal of 2 July 2015 the applicant referred to independent information to support his claim to fear return due to his political involvement and activism against the Awami League as he was an activist with the BNP and JCD. He claims he was a victim of harassment and physically assaulted and his life was at risk. In particular he refers to instances where BNP activists have been shot dead on the street due to clashes with the government and police. He refers to the detention of many BNP leaders. He refers to violence on Election Day in January 2014. He refers to the Odhiker report, on Human Rights on harassment, killing and harm of those opposed to the government. He refers to reports that membership or perceived support of groups opposed to the government does not itself give rise to a well-founded fear of prosecution but may in individual circumstances. He refers to the high level of politically motivated violence, the difficulties faced by those actual or perceived to be opposed to the government and the lack of state protection. He refers to the corrupt nature of the Awami League Government. He claims many BNP activists are being harassed by the Awami League.

29. At the Tribunal hearing held on 24 January 2017 the applicant reiterated his fear of return on the basis of his political involvement and activities with the JCD and BNP. When asked as to his involvement in Australia, he said he was involved in the Jubo Dal and said he was attending meetings. He said he was a member. He outlined the political activities and the difficulties he had faced in Bangladesh including being assaulted on 20 to 25 occasions. The Tribunal questioned him in detail regarding the difficulties he had faced, whether he was politically involved as he claimed, went into hiding in 2013 and departed in fear. Concerns raised where relevant, have been outlined below.

    Assessment of Credibility of Claims

30. Having sighted a copy of the applicant’s identity documents, and on the basis of the applicant’s evidence at hearing, the Tribunal accepts that the applicant is a national of Bangladesh for the purposes of s.36(2)(a). For the purposes of s.36(2)(aa) the Tribunal accepts that Bangladesh is the receiving country.

31. As to the applicant having faced the difficulties he claims in Bangladesh, for the reasons that follow the Tribunal does not accept that the applicant is a credible witness and suffered the harm or difficulties in his country that he claims for the reasons that he claims, which led him to leave Bangladesh and why he fears return.

32. It follows it does not accept that he was ever involved in the JCD or an active supporter of the BNP in the manner claimed or that he was harassed, threatened and physically assaulted by members of the Chattra League, Awami League and the police. It finds his testimony to be inconsistent and lacking in detail as to these claims, and is of the view that he has fabricated claims and concocted evidence to achieve an immigration outcome.

    Difficulties faced due to his political involvement

33. Central to the applicant’s claims as to why he fears return and why he departed Bangladesh is the difficulties he faced at the hands of the Awami League and Chattra League  due to his political involvement and activism with the JCD acting for and with the BNP. However for the reasons that follow, including his inconsistent evidence between the Department and Tribunal, the Tribunal does not accept he is a credible witness as to ever having faced any of the difficulties he claims due to his political involvement and beliefs. This adds to the finding he is not a credible witness.

34. Firstly, when asked as to the physical assaults sustained due to his political activities and beliefs at the hands of the Awami League and Chattra League (CL); the applicant’s evidence has been inconsistent as to how many times he was attacked and/or assaulted and the injuries sustained. At the Department interview he indicated that he was assaulted five times by members of the CL, twice while attending meetings at his College and three times during protest rallies. He said the first assault occurred in late 2010 and the last in late 2013. He said he was assaulted three times in 2013. When asked whether he sustained any injuries he said he did not. However at the Tribunal hearing, in contrast, he stated he was assaulted personally and in fights on 25 to 30 occasions. When asked whether he sustained any injuries, in contrast to his evidence at the Department interview, he answered in the affirmative. He referred to being injured on his head near his ear. He referred to marks near his ear and back.

35. When the Tribunal raised with him the above inconsistencies in his evidence he referred to his statement being written by his [sibling]. The Tribunal does not accept this response as explaining the significant inconsistencies in his evidence as to the extent of the assaults, the injuries sustained as it is his own oral evidence to the Department and Tribunal which is significantly inconsistent. Considering the applicant’s education[2]; and the significance of being assaulted and attacked, the Tribunal is of the view that if he sustained the difficulties he claims he would be consistent as to the extent and injuries sustained. This leads the Tribunal to find he was not assaulted or attacked as claimed from 2010 until his departure in 2014 due to hi political involvement nor sustained any of the injuries sustained as a result of his political involvement and activism. This adds to the finding the applicant is not a credible witness.

    [2] It was his evidence at the Tribunal hearing that he completed [time] towards a [qualification] up to his departure in 2014 and he also referred to his level of education in his statement.

36. Secondly, in the applicant’s statement he refers to his family home being attacked by his political opponents. At the Department interview when asked as to when his family home was attacked by opposition activists, he described how in December 2013 Chattra League activists came to his home, about four or five came inside the house and there was a fight until his mother stopped it. He said [an appliance] broke. However despite being given numerous opportunities at the Tribunal hearing to describe the difficulties he faced he did not refer to this incident. In particular he was asked such questions as “other than facing difficulties in meetings and processions, did you face any other difficulties?” and “whether any further significant events occurred at the hands of the Awami League, Chattra League and or police which you have not talked about?”; and after outlining the evidence he had provided as to difficulties faced he was asked “whether he faced any other events where he was targeted”. When the concern was raised with him at the Tribunal hearing, he said the doorbell went and the Chattra League activists rushed in. The Tribunal does not accept his response as explainaing why he did not refer to it unprompted. The Tribunal is of the view if Awami League activists or Chattra League activists came into his home in December 2013 while he was there and there was a fight that he would recall this when asked on numerous occasions as to the difficulties he faced. This leads the Tribunal to find that the Chattra League and Awami League did not come to his home in December 2013 to harass him and a fight broke out inside his house. This adds to the finding he is not a credible witness.

1. Further, in his statement the applicant referred to a significant event in July 2014 where when organising a meeting in the College they were suddenly attacked by a group of Chattra League activities. However, in contrast, at the Department interview he did not refer to this event and said that that the last assault took place in 2013. This is despite discussing the difficulties he faced and being asked whether he wished to add anything regarding his claims. When the concern was raised with the applicant he indicated he said that it has been quite a few years since he arrived and faced the difficulties, and he has been frustrated with the process. He said he has been trying to keep things blocked away. While he did refer to a significant event at the Tribunal hearing in 2014, the Tribunal is of the view if the applicant was attacked in July 2014 with other members of the JCD as claimed in his statement, in which he claims was the time they really began to try to take revenge against him; if true he would have referred to this at the Department interview. This leads to the Tribunal to find he did not face the difficulties he claims in July 2014. It adds to the finding he is not a credible witness.

   Hiding

2. The applicant claims that as a result of the difficulties he faced due to his political involvement and activities he went into hiding in 2013. He indicated that he went into hiding in 2013 until his departure in August 2014. While he could not remember when at the Tribunal hearing he said he was in hiding from March 2013 at the Department interview. It is his claim that he stayed with relatives during this period at night but would on occasion return to his home in the day for a few hours, possibly weekly or monthly depending on the security situation.

3. However, despite claiming to be hiding at the Department interview and Tribunal hearing, there is no mention of this in his statement. When questioned at the Tribunal as to why he did not mention it he said that his [sibling] wrote the statement and wanted to make a long story short. The Tribunal does not accept this response as the statement is three pages long and it is of the view if he went into hiding in 2013 until his departure in August 2014 in the manner he claimed, if true, due to the significance of this event it would have raised in his statement even if his [sibling] assisted him to write it.

4. The Tribunal also views as inconsistent with his claim of why he went into hiding being his fear of being kidnapped and disappearing, inconsistent with his continued attendance as a student at College until his departure in August 2014. He confirmed he attended daily. It also views as inconsistent his evidence at the Tribunal hearing that despite claiming to be in hiding he also continued to attend JCD meetings at the College, advocated for people to join the BNP and JCD and was involved in BNP rallies and protests up until his departure in August 2014. This is particularly so as it is his claim that Chattra League activists were present on College and had said he was assaulted while at College. When the Tribunal’s concerns was raised in this regard he responded he could attend College while in hiding as people would pick him up and drop him off and he was required to be there for the JCD. He said he had to attend because of the political situation. He said his Seniors of the party told him he had to come. The Tribunal does not accept this response and views as inconsistent his going into hiding as he feared being kidnapped as he claimed the senior people in the JCD had been kidnapped and they were coming for the members, with his continued study and attendance at College for political reasons. It leads the Tribunal to find he did not go into hiding as he claimed or went into hiding as he feared being kidnapped or disappearing as other activists had. It adds to the finding he is not a credible witness.

   Visa to [Country 1] and Delay in Departure

5. The Tribunal also views as inconsistent with his claims of the difficulties he faced, which led him to go into hiding in 2013 and caused him to flee Bangladesh to save his life, his continued stay in Bangladesh to August 2014 despite having a valid visa to depart to [Country 1] from March 2014. This is particularly so as he claims in his statement that after the Awami League came to power in January 2014 the Awami League workers almost had the same power as the police and whoever they caught from the JCD was assaulted or arrested by police. He also said that he went into hiding due to the kidnapping of JCD and BNP activists in 2013 and indicated at the Tribunal hearing that he was regularly receiving death threats.

6. When the concerns in this regard were raised with him he responded at the Department interview that the [Country 1] visa was obtained the same year as the Australian visa and he felt safer coming to Australia. At the Tribunal hearing he responded that the situation in [Country 1] and Bangladesh is similar and his [sibling], who is a citizen in Australia, said to come to Australia and he was getting the papers ready to apply to Australia. The Tribunal does not accept this response as explaining why he remained in Bangladesh after he had a visa to depart to [Country 1] in March 2013, particularly given the size and political landscape in [Country 1] is so different and as an application to apply for a visa to Australia was not made until [June] 2014, as outlined in the Department decision. The Tribunal is of the view his lack of departure to [Country 1] even though he had a visa to depart from June 2014 undermines his claim to be in fear at the time for the reasons he claims. It adds to the finding he is not a credible witness.

7. Further, of concern is that despite being granted a visa to travel to Australia [early in] July 2014, the applicant did not depart until [in] August 2014. The Tribunal views this as further undermining his claim to be in fear of serious harm and his life at that time for the reasons he claims; and that he was in hiding as a result. When this concern was raised at the Department interview he indicated that the delay arose as he had to obtain money to pay for the airfare. At the Tribunal hearing he responded that his mother wanted to travel with him, which she did and two airfares are very expensive. The Tribunal does not accept money as the reason for the delayed departure as he had previously said the airfares were paid from saving and by his mother. Also the Tribunal does not accept if he was fearing serious harm and his life was in danger he would have waited to gather money for two airfares, rather than travelling earlier himself.

8. The applicant’s delayed departure of approximately six weeks after his visa adds to the finding the applicant is not a credible witness as to his claims.

   Involvement and activities with JCD , Jubo Dal and BNP

9. Central to the applicant’s claim as to why he fears return and why he departed Bangladesh is his political involvement with the JCD, the student wing of the BNP, acting for the BNP. He claims this is why he was targeted by the Awami League, JCD and the police acting on their behalf. He claims he has been involved in the Jubo Dal in Australia, being the youth organisation of the BNP.

10. However for the reasons that follow, he Tribunal does not accept the applicant is a credible witness as to his involvment or interest in the JCD and BNP in Bangladesh in the manner he claimed or his involvement in the Jubo Dal in Australia. This adds to the finding the applicant is not a credible witness.

11. It is the applicant’s claim he was involved in the JCD, the student organisation of the BNP from 2010 until his departure in 2014, working for and with the BNP at meetings, regularly attending demonstrations, promoting the party to others to join it and assisting senior BNP leaders when they visited the area. It is also his evidence that he continued to be activiely involved even after he was harmed on numerous occasions because of his political belief. His evidence is that he is well educated, having completed High School and [time] of a [qualification].

12. However, despite his active involvement, conviction for the JCD and BNP, continuing with his activities despite being threatened and assaulted on numerous occasions and his level of education;

    ·The applicant was unable to accurately draw and describe the BNP flag at the hearing before me. This is particiculary of concern as he said it was the flag used by the JCD and was hung at meetings and extensively used at demonstrations, protests and strikes with the BNP which he claims he regularly attended.

    While he was able to partially draw and describe the flag, including that it was half red on top and green below with a paddy sheath in the middle, he omitted the star on top and kept drawing and saying that there was a circle with decorations on it in the middle. Despite asking him to describe the round circle in the middle he was unable to describe it and said it had decorations in it. He was also unable to describe the symbols of the flag and what they meant.

    As raised with him, the BNP Constitution notes the following with regard to the flag that

    “the upper half of this party’s flag will be red and its lower half will be green. An industrial wheel in black will be in the centre of the flag. A golden sheaf of paddy will rise from within the wheel with a white star on top of the paddy. The green symbolizes the country, red is the symbol of our liberation war, industrial symbolizes development and progress and the white star is the symbol of our national hopes and aspirations. “[3]

    ·He was unable to describe in any manner the four fundamental principles of the BNP, which are followed by the JCD, which were laid down at the formation of the party. When asked on two occasions he said he could not remember and then referred to the 18 principles but said he could not name them either. However, as raised with him independent information from the JCD website indicates that there are four main principles, being absolute trust and faith in Almighty Allah, Nationalism, democracy and socialism (meaning to economic and social justice).[4]

    ·Further and while not solely determinative, he indicated there were 18 guiding principles which he could not remember. The independent information indicates there are 19 principles, or programs of action that is followed by the JCD, acting with the BNP.[5]

    ·His evidence as to why he belonged to the JCD in 2010 and what he believed in was vague and lacking in detail. Despite repeated request as to why he had chosen the JCD/BNP to join and become involved in, what the JCD/BNP believed in as a political party, and why he continued his involvement even though in hiding and in fear of serious harm; his evidence as to why he joined was because his [sibling] was involved, he had to have a political association, the BNP worked for the betterment of the people, the Awami League is corrupt and the BNP would improve the roads and the community would be better. The Tribunal is of the view that his evidence as to why he became involved and what the JCD/BNP stands for to be lacking in detail and inconsistent with his claimed involvement, even though in fear and being assaulted and level of education. While not determinate it adds to the finding he is not a credible witness as to his claimed involved with the JCD and BNP and, Jubo Dal in Australia, being a period of over six years.

    [3] BNP Website – Constitution - at JCD Website Objectives and Aim Ibid

13. When the Tribunal raised with the applicant its concerns as to his claimed involvement with the JCD, Jubo Dal and BNP, including being a member of the JCD and Jubo Dal and outlined its concerns as outlined above; he responded that he is frustrated, has been insecure for some time, the process has taken a few years with no progress and he doesn’t remember much of it. He said he can’t remember off the top of his head. While the Tribunal accepts that the process of applying for protection can take time, and that there can be discrepancies due to genuine lapses in memory, the applicant’s lack of knowledge as to core matters of the JCD/BNP to be for the reasons he claims. The Tribunal finds the applicant was not involved in the JCD/BNP in Bangladesh in the manner claimed, nor has he been involved in the Jubo Dal in Australia., This adds to the finding eh is not a credible witness.

    Credibility Summary

14. For all the above reasons, considered cumulatively, the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims as to why he departed Bangladesh and why he fears return.

15. In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. It is also sensitive to the length of the process and that frustrations can arise in this regard. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led the Tribunal to find that the applicant is not a reliable witness as to these claims.

16. In making this finding the Tribunal has also considered that some information has been consistent over time, including basic mattes as outlined in his statement, such as that he was involved in the JCD, involved in meetings, protests and hartels includidng for partliamentary elections and the dispappearance of Elias Ali, he joined in 2010 and was assaulted by the Chattra League and Awami League activities. However the Tribunal considers that these matters are relatively easy matters to recall and his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.

17. Accordingly, for all of the above reasons, in light of its findings that he was not a reliable witness, the Tribunal has no confidence in accepting that key aspects of his claims were based on his personal or actual experiences and considers it was fabricated to create a claim to be owed protection.  On the evidence before it, the Tribunal does not accept the applicant was ever was threatened directly or indirectly or faced any of the difficulties he claims at the hands of Awami League and/or Chattra League and/or Jamaat-e-Islami (JeI) and/or the police; and he was a supporter, member, or ever involved with the JCD and/or BNP or was ever perceived as a supporters of the JCD and/or the BNP and/or perceived as being opposed to the Awami League.

18. It follows the Tribunal does not accept as true his claim that he joined the JCD in 2010, regularly attended meetings, protests, hartals, rallies, strikes for the JCD or BNP or assisted in arranging them or organised demonstrations by Senior members or promoted the BNP or JCD or Jubo Dal to anyone. It follows it does not accept he was ever threatened with harm, kidnapping or death, was ever discriminated against, harassed, attacked, assaulted, in fights or threatened in any manner including death and/or revenge in any manner what so ever both in or outside his college at his home by the Awami League and JCD activists and members of the police force. It follows it does not accept as true that a false case has been laid against him. It follows it does not accept as true he sustained any of the injuries he claims, including to his head, ear and back for the reasons he claims.

19. It follows it does not accept s true that at any time he went into hiding at his relatives homes or anyone else as he feared harm because of his political beliefs and activities. It follows it does not accept he was traumatised, unable to lead a normal life and could not study or sleep, suffering mentally for the reasons he claims

20. It follows it does not accept that at the time of his departure he held any profile in Bangladesh with regard to being involved with the JCD or BNP and being in opposition to the Awami League or JCD. It follows it does not accept his home was ever visited by the police or members of the Awami League or Chattra League both before and after he left Bangladesh due to his political beliefs and activities.

21. Based on its findings as to the applicant’s lack of credibility the Tribunal does not accept as true that the Awami League, Chattra League or police at any time before he departed Bangladesh have visited his home, including in August 2013 and December 2013, harassed his mother as to the whereabouts of the applicant, demanded money or that his mother threatened in any manner what so ever. It follows it does not accept as true his mother moved one month after her return to Bangladesh due to the ongoing harassment due to the applicant’s political profile and activities.

22. It follows based on the applicant’s lack of credibility that it does not accept that at any time he or his mother was ever threatened with harm by JeI both before or after he departed Bangladesh.

23. It follows based on the applicant’s lack of credibility the Tribunal does not accept as true that he fled Bangladesh as he feared being harmed or killed by the JCD and Awami League associates, members and activists or anyone acting on their behalf, including the police and members of the JeI. It follows it does not accept as true that since arriving in Australia in August 2014 he has spoken to his family and friends in Bangladesh, including his uncle, who have advised him that members of the Awami League, Chattra League and police have come to his home, continue to ask about his whereabouts or that they have harassed or threatened any member of his family, including his mother.

24. It follows that the Tribunal does not accept as true that at the time he departed Bangladesh in 2014 he held any concerns for his safety or feared being harmed for any of the reasons he claims.

25. As to his political involvement in Australia, based on the applicant lack of credibility it does not accept he is a member of the Jubo Dal or any BNP party or associated party or attended any meetings, events or protests held by them in Australia.

26. The Tribunal rejects the entirety of the applicant’s claims.

    Does he have a well-founded fear of persecution in relation to Bangladesh and meet the protection obligations under the Refugees Convention and does he meet the protection obligations under the complementary protection provisions of the Migration Act?

27. Based on its findings as to the applicant’s credibility the Tribunal has found that the applicant was not now or never was a supporter, member, associated with, involved or perceived to be associated with the JCD or BNP or Jubo Dal or in opposition to the Awami League or faced any of the difficulties he claims for the reasons he claims. It follows it does not accept were he to return to Bangladesh now or in the reasonably foreseeable future the applicant or his family will be killed, harmed, face extortion demands, be economically harmed, be physically abused, threatened, harassed, have a false case laid against him, be arrested and detained, have to go into hiding, be unable to live a normal life, be traumatised, suffer mentally and be unable to sleep and study or face any of the difficulties he claims from the Awami League, Chattra League , police or anyone else for the reasons he claims.

1. As the Tribunal has found that the applicant was never involved with the JCD and BNP in the manner he claims in Bangladesh and has rejected as true his claimed involvement with the Jubo Dal (youth organization of the BNP) while in Australia, it follows that the Tribunal is not satisfied that the applicant will participate in any BNP, Jubo Dal or JCD activities in any way on return or will suffer persecution by being prevented from being involved. It does not accept as he has not been involved in the past that he will continue to work for the JCD or Jubo Dal or BNP wherever he lives in Bangladesh which would place the applicant at any risk of harm.

2. As a result the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm if he returns to Bangladesh in the reasonably foreseeable future at the hands of the Awami League, Chattra League, JeI or anyone acting on their behalf or the police or the authorities or anyone else due to his political opinion or imputed political opinion associated with the BNP or JCD or Jubo Dal, including his support and membership, active involvement in trikes and hartels or meetings or any other political activities or because he will be viewed as in opposition to the Awami League or the government.

3. Similarly based on my findings above and on the information before me I am therefore not satisfied on the basis of the evidence before me that there is a real risk that he will suffer significant harm on his return to Bangladesh at the hands of the Awami League, Chattra League, JeI or anyone acting on their behalf or the police or the authorities or anyone else due to his political opinion or imputed political opinion associated with the BNP or JCD or Jubo Dal, including his support and membership, active involvement in strikes and hartels or meetings or any other political activities or because he will be viewed as in opposition to the Awami League or the government.

   Conclusions regarding the Refugees Convention   

4. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in Bangladesh in the reasonably foreseeable future.  Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future. 

5. Based on all the evidence before it, including the applicant’s claimed past circumstances and his current personal and family circumstances and profile in Bangladesh, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for any of the reasons claimed or arising on the evidence, either singularly or cumulatively, for a Convention reason, in the reasonably foreseeable future. It follows that the Tribunal is not satisfied that the applicant faces a well-founded fear of persecution in Bangladesh for a Convention reason in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that the applicant is a refugee under section 36(2)(a) of the Act.

   Complementary Protection

6. The Tribunal has also considered whether the applicant is eligible for complementary protection. Findings have been made above in this regard.

7. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real risk of him being subjected to significant harm on return to Bangladesh.  Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept 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 as defined in subsection 36(2A).

   CONCLUSION

8. 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).

9. 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).

10. 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

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

    Gabrielle Cullen
    Member