1509778 (Refugee)

1509778 (Refugee) [2017] AATA 588 (22 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1509778
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Gabrielle Cullen
DATE:22 March 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 22 March 2017 at 3:00pm

CATCHWORDS
Refugee – Protection visa – Bangladesh – Political opinion – Bangladesh National Party activist – Jatiyabadi Chattra Dal activist – Opposition to Awami League Government – Threats of physical violence – Credibility issues
LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2

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

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, a citizen of Bangladesh and born in Rangpur District, fears return from Awami League activists on account of his involvement with the Jatiyabadi Chattra Dal (JCD)[1] and Bangladesh National Party (BNP). He fears for his safety and that he will be seriously harmed on return.
[1] Student wing of the Bangladesh National Party (BNP)
The applicant departed Bangladesh for Australia and arrived [in] July 2009 as the holder of a student visa valid to [March] 2011. He applied for a further student visa [in] March 2011, which was refused by the Department [in] June 2011 and by the Tribunal (differently constituted), on 29 July 2013. The applicant applied for a protection visa [in] December 2014.
[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.
The delegate refused to grant the visa [in] July 2015[2] 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 which led him to leave Bangladesh. While accepting he was a supporter of the JCD and the BNP from 2002 and may have faced some instances of political violence including a one-off incident in 2009 when the Awami League entered his parent’s home, he did not accept the applicant was targeted in the manner claimed including being assaulted. He did not accept the applicant was persecuted in Bangladesh on the basis of his political opinion.
[2] The decision was attached to the Application for Review.
The applicant appeared before the Tribunal on 13 February 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, although much of the hearing was conducted in English, with the applicant’s approval.
The applicant was given until 24 February 2017 to provide a response to the s.424AA matter raised at hearing and to provide information on any other matter he considered relevant. He provided a response on 23 February 2017.
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
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.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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’).
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
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 of [December] 2014, attached statement and identity documents.
·Oral evidence provided at the Department interview held [in] June 2015 and Tribunal hearing held on 13 February 2017.
·Letter from [Mr A], [senior office bearer], JCD Dhaka indicating the applicant was an active member from 2002 to 2004 at [College 1], Dhaka and was elected [office bearer] of [College 1] in [year].
·Letter from [Mr B], [senior office bearer] JCD, [District 1] branch indicating the applicant spent much time building the JCD in [District 1], and in [year] was elected [office bearer] of the [District 1] Chattra Dal and in [year] was elected [senior office bearer] of the [College 2] Chattra Dal [District 1], Rangpur. It notes that during the 2008 election he worked for the BNP candidate, [Mr C]. The letter notes that after their candidate lost the election the applicant became the subject of oppression by the activists of the Awami League. He claims the applicant had to leave Bangladesh for his safety and if he returns he will be caught by the police or the Awami League supporters may attack him.
·Letter from [Mr D], [office bearer], BNP, Rangpur noting that the applicant belongs to the BNP of [District 1]. He writes that the applicant was involved in student politics under the JCD, was active and suffered oppression at the hands of the Awami League activists. The letter notes the applicant was attacked on a number of occasions and was compelled to leave the country for his safety. He writes that the applicant was the [office bearer] of the [District 1] Chattra Dal and later on became [senior office bearer] of the [College 2] Chattra Dal. He claims the applicant will be persecuted if he returns and requests Australia provide him with protection.
·Written submissions dated 10 October 2016 and 23 February 2017.
·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.
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
The applicant claims in his statement attached to his protection visa application that he was involved in the Jatiyatabadi Chattra Dal (JCD), student wing of the BNP, at [College 1] from [year] and became the [office bearer] of the JCD at [College 1]. He claims in [year] when he finished his HSC he returned to Rangpur and joined the local JCD chapter and in [year] he became the [office bearer] of [District 1].
He claims during the 2008 election he worked for [Mr C] who was a candidate for the BNP and his main opponent was Sheikh Hasina. He claims he campaigned from door to door but his candidate was defeated. He claims after the Awami League won the election and came to power the Awami League sought revenge against the BNP and their allies. He claims his family became a target.
He claims in the meantime he was admitted to [College 2] to undertake a [course] and he was affiliated with the local JCD and had a leadership position.
He claims [in] January 2009 at 9pm a group of Awami cadres entered the family house and looted their belongings. He claims they insulted his father and mother and threatened them. He claims he was not at home at the time.
He claims there is no possibility of him living peacefully so he decided to leave the country to secure his future. He claims his parents supported the plan and he contacted an agent to organise a visa to come to Australia. He claims if he returns he will be persecuted.
At the Department interview held [in] June 2015, the applicant reiterated his claim to fear return from Awami League activists due to his political involvement. He outlined his involvement since 2002 while at [College 1] in Dhaka and on return to his local area in 2005. He claims after the 2008 election he and his family were targeted by the local Awami League activists because of his role in the election campaign. He claims his family was robbed on two or three occasions and he was physically assaulted. He described the attack [in] January 2009 and said only his parents were at home. He said the incident was reported to the police; they came but took no action. As to other incidents he said his house was robbed twice and there were other incidents when stones were thrown at his house. He said the house was robbed in March 2009 but no one was at home but he knew the Awami League was responsible for the robbery. He said after January 2009, his family was threatened a couple of times and he sometimes went to friends and relatives places to stay. He said he moved to Dhaka in April 2009 as he and his family were being threatened in when they liv in Rangpur (about 300kms from Dhaka).
On 10 October 2016 the applicant submitted a further statement to the Tribunal. In the statement he outlines his migration history in Australia. He notes that during the 2008 election he was an activist for the BNP. He claims he was also a polling agent at that election and the Awami League won by rigging the vote. He claims he was a witness of the malpractice. He claims he raised his voice that it was an unfair election to the concerned authorities. He claims as a result he was identified as a diehard BNP supporter and the Awami League leaders did not like this. He claims after winning the election the Awami League started oppressing and torturing the party members of BNP. He claims the BNP was suffering and he and his family were also threatened and warned. He claims he was warned to stay away from BNP supporters. He claims they warned him at gunpoint and harassed his family.
He claims initially they were harming them verbally and later on they started harassing him and his family and robbed his house. He claims with his family he raised his voice against what was happening, which resulted in them being physically tortured at gunpoint.
He claims he went to the police to report the incidents but no action was taken as the Awami League are in power and no one stands up to them. He claims even the police failed to protect them against the Awami League brutality and injustice.
He claims his whole family was mentally oppressed. They feared they would be killed and that there is no freedom of speech for supporters of the BNP. He claims their life was miserable and they were unable to access the basic daily needs such as food, groceries and drinking water. He claims they were even unable to pay their utility bills and he was scared to go out as his life was at risk.
He claims he contacted the police again and again but the police are corrupt. He claims he discussed the situation with the BNP leaders and they suggested he leave Rangpur and move somewhere to save his life. He claims fortunately he got the chance to move to Dhaka but he claims the Awami League supporters found him in Dhaka and he faced the same problems. He claims there was no place in Bangladesh to escape from the Awami League thugs who have ordered the police to search for BNP activists and put them in prison.
He claims as there was no safe place in Bangladesh and there was extreme danger and risk to his life he decided to leave.
At the Tribunal hearing, the applicant reiterated his claims of fearing return due to his political opinion and involvement in the JCD and BNP. He said there is a fair chance he will be killed on return by Awami League activists due to his membership and leadership positions with the JCD. He said he was not a member of the BNP, but that the JCD is the student organisation of the BNP. He claims he was with the Jubo Dal (or youth wing) when [office bearer] of [District 1] in [year], not the JCD.
As to the difficulties he faced, he claimed that the difficulties only began after the 2008 election, held at the end of December 2008. He said when advocating for his candidate he criticised Sheikh Hasina and her father and this is punishable by jail time. He said as soon as the election result was known, Awami League supporters in a rally passed his house and threw stones. He said they were targeting him and other BNP supporters. He said he was inside and they called his name asking him to come out and saying they wanted to kill him for saying things against Sheikh Hasina and her family. He said he was very scared but they did not enter the house and went on their way. He said it was in December 2008.
He said once victory was confirmed they started harassing BNP supporters and he was harassed as he was [office bearer] at the Thana level. He said at first they targeted his parents who were on their tricycles. He claims they told his parents that he, the applicant, should stay away from other BNP supporters. He said that was early January 2009.
He then said that as he was a polling agent during the 2008 election and witnessed the malpractice of Awami League and reported it, they were out to harm him.
He said the next incident occurred in late January 2009 when he was [at a shop]. He said two Awami league activists came inside and told him to come outside, which he was forced to do. He said he was beaten by ten to fifteen people and he ran away and went to a [location] where [people] protected him. He said he was beaten with a rod and suffered bruising and swelling.
He then referred to the robbery of his parent’s home [in] January 2009, although he was not there at the time. He said his parents were pushed and threatened under gunpoint by the Awami League. He said they looted the house and smashed it. He said he went to stay elsewhere and returned after 10/15 days.
He said in mid-February he tried to attend College and he became [senior office bearer] of the JCD at the College. He said in February 2009 the Awami League held a rally for new enrolees. He said there was a couple of hundred and when they saw him and other members of the JCD they ran after them. He said they ran to the principal’s office who stopped them although his office was smashed. He referred to another robbery at his parent’s house in March 2009 although no one was at home. He said his neighbour told them it was the Awami League who robbed them.
As to how he tried to protect himself, he said he contacted senior leaders of the BNP to try and talk to senior leaders of the Awami league to stop the activists.
He said his parents thought he should leave so he went to Dhaka and rented a place with a few friends in April 2009, however after ten to fifteen days there, Awami League activists found him and he was beaten and told to stay away from politics. He said he then went and stayed at other friends’ places and moved around to avoid harm.
At the end of the hearing he added that after his father left his [job], he opened a business but had to close it due to Awami League harassment. He said his father was harassed due to his, the applicant’s, involvement in the JCD.
The Tribaunl discussed with him in detail his involvement in politics and why he was involved and why he was a supporter of the BNP. At the end of the hearing it raised with him its concerns, particularly whether he is credible as to his claims generally, specifically as to being politically involved and whether he and his family faced the difficulties he claims. Where relevant, these concerns have been outlined below.
In his post hearing response received on 23 February 2017 the applicant repeated the incidents of harm claimed at the hearing. In particular, he repeated that he was targeted as he was a polling agent in the 2008 election and raised his voice against the irregularities of the Awami League and they did not like it. He claims they targeted him as a result. He refers to the claims made at hearing that in January 2009 he was in a [shop], located opposite the Awami League office and he was taken outside by them and beaten. He adds that a gun was pointed at him but he escaped to a [location] and was protected by [people] [inside]. He repeats that [in] January 2009 his house was robbed and he was not at home, they threatened his parents and he stayed away for 10 to 15 days with friends and relatives because of a fear of being killed. He refers to the incident at College in 2009, when he was [senior office bearer] of the JCD. He claims he was attacked by Awami League activists, threatened with a gun and warned not to attend College. He claims they managed to escape and entered the principal’s office. He claims later the police came to the College to save them. He repeats that in the first week of April 2009 he moved to Dhaka. He claims that one week later a few Awami League activists saw one of his flatmates and came to know that he was with the BNP. He claims alter that they come with other Awami League activists from Dhaka and attacked him and threatened to kill him. He claims he was saved by his flatmate and others. He claims he then moved from place to place until he left for Australia. He refers to the robbery incident in March 2009 when no one was at home. He said they informed the police but no one was at home. He repeats that his father’s business was shut down and moved to other locations because of threats and harassment by Awami League activists.

He claims that at the Department interview, the delegate did not ask him about these incidents. He claims he was new in Australia and his migration agent did not guide him properly. He claims he also suffered from the language barrier as well as stress and tension. He claims when his protection visa was refused he thought he better mention these incidents to the Tribunal, which he did.
Assessment of Credibility of Claims
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.
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. It follows it does not accept that he was ever involved in the JCD or Jubo Dal or an active supporter of the BNP in the manner claimed or that he and his family were harassed, threatened and physically assaulted by members of the Awami League. 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
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 due to his political involvement and activism with the JCD and Jubo Dal, acting for and with the BNP. However, in the manner outlined below, the applicant’s account of the difficulties he faced has changed and evolved over time which leads the Tribunal to find that he has embellished his evidence as to the difficulties faced and that he is not a credible witness as to these claims. This adds to the finding he is not a credible witness.
In his initial statement attached to his protection visa application, the applicant only refers to one incident of harm which was specifically faced by his parents. He claims [in] January 2009 Awami League activists came to his home, insulted and threatened his parents and looted their belonging. As a result he said he decided to leave Bangladesh.
However, at the Department interview; he added that his family home was robbed two or three times and he was physically tortured. When asked to describe the particular incidents, he referred to the event [in] January 2009, although adding that the attackers told his parents that if the applicant continued his political activities he would be killed. When asked about other incidents, he said the house was robbed in March 2009 but nobody was at home but they knew it was the Awami League activists. He also said it was robbed every month. As to other incidents he said that the Awami League and Chattra League (student wing of the Awami League) offices were not far from his home and after meetings and rallies the activists would come to his home and throw stones. He said because of the threats to his family he left to live in Dhaka in April 2009. When asked if he had put forward all his claims for protection, he answered in the affirmative. He was also asked on two occasions whether there was anything he wished to add.
In a further evolvement of his claims and the difficulties he faced, in his statement of October 2016 he stated that after the 2008 election a group of Awami League activists came to his home and warned him and his family to stay away from BNP supporters. He claims he and his family were warned at gunpoint and is family was harassed. He said this pattern of harassment continued. He said they harmed them verbally, started harassing him and his family and robbing the house, looting much stuff from their home. He said when they raised their voice; they were physically tortured at gun pint. He claims he and his family lives were miserable and they were unable to access basic daily needs, such as food, groceries and drinking water and scared to go out as their life was at risk. He claims he fled to Dhaka but faced the same difficulties from the Awami League thugs.
In the Tribunal hearing, the applicant’s evidence changed and evolved further as to the difficulties he and his family faced. He was asked in detail as to the difficulties faced and provided the following chronology of events, some of which he also referred to in his post-hearing submission:
·[In] December 2008 soon after the election, there was an Awami League rally and on passing his house they threw stones. He said there were more than a hundred of them and they specifically targeted his house. He said they called out his name and said words to the effect of “Come out, we are going to kill you” and “How dare you say things against Sheikh Hasina and her father.” He said he was inside and they did not stop and come inside.
·In early January 2009 his parents were riding their tricycles and at gunpoint they were threatened and told to tell the applicant to stay away from other BNP supporters. He said he was not with them.
·Later in January 2009 he was in [a shop] when two Awami League activists came in and then ten to fifteen of them beat him on the street. He said he was able to run away and [people] in a restaurant protected him. He said he was beaten with rods and sustained bruising and swelling, pointing to his arm and back.
·He referred to the robbery of his home [in] January 2009. He said they pushed his parents and said they were looking for the applicant. He said under gun point they threatened his parents, and smashed the house and looted goods. He said his parents told him not to come home for 10/15 days.
·In mid-February he returned to College but in February 2009 there was an Awami League ceremony celebrating new enrolments. He said he and other JCD members were chased by 100/200 Awami League activists. He said they ran to the Principal’s office who stopped the Awami League activists. He said they smashed his office.
·In March 2009 he said there was another robbery at his parent’s house but no one was at home. He said his neighbor saw it was the Awami League activists.
·He said he fled to Dhaka and lived in a rental home with friends. He said after 10/15 days there the Awami League activists visited him and beat him. He said they said he is to stay away from BNP politics. He said he was bruised after this incident.
Concerns were raised with the applicant generally as to his evolving evidence and that this questions the credibility of his claims and particiculary:
·as to why he did not mention the other incidents outlined above in his statement attached to his protection visa application, apart from the January 2009 robbery and harassment of his family.
·why, as raised via s.424AA, he did not mention the serious assaults at the [shop] in Rangpur and in Dhaka in his Department interview despite being asked whether there was anything more he would like to add to his claims and whether there is anything else he wanted to tell about his application. It raised with him that he was also asked whether he had put forward all his claims for protection, to which he responded in the affirmative. It also raised with him why he did not mention these incidents when discussing at the Department interview the instances of harm he faced. It also raised why he did not mention these in his statement attached to his protection visa application or his recent statement of October 2016, given their significance.
·why he mentioned being personally threatened at gunpoint in the statement of October 2016 but not at the Tribunal hearing when recounting the individual events or previously to the Department and in his statement attached to his protection visa application.
In response the applicant indicated at hearing that when he applied he was misguided by his agent and he did not realize he had to outline all the instances of harm and difficulties faced. He said at the Department interview his mind went blank and he said there was an interpretation issue and he did not catch the questions at the Department interview. As to being warned at gunpoint he said this occurred in the incident at the [shop].
In his post-hearing response he indicated that the delegate did not ask about the incidents; he was new in Australia and his migration agent did not guide him properly; he also suffered from the language barrier as well as stress and tension. He claims when his protection visa was refused he thought he better mention these incidents to the Tribunal, which he did.
The Tribunal does not accept the applicant’s responses as to why he did not mention these events earlier, and why the claimed difficulties have evolved over time. As to his mind going blank, the Tribunal has difficulty accepting this as true as there was no other evidence as to this occurring and he did not mention it previously, only when concerns were raised as to his credibility. As to their being an interpretation issue and language barriers, the Tribunal does not accept he is being truthful in this regard as it was only raised after the credibility concerns were raised at hearing. The Tribunal expects if there was an interpretation or language barrier or communication problem at the Department interview he would have raised these matters earlier or mentioned it at the interview, which he did not, only after the above concerns were raised. As to his migration agent not guiding him properly the Tribunal has difficulty accepting this to be the case as to why he did not mention it prior to the Tribunal, especially as he was directly asked at the Department interview as to the difficulties faced and did not mention the significant events of being attacked outside the [shop], in Dhaka and Rangpur when asked whether he had anything further to add. It also is of the view that, if true, these would have been mentioned in his initial statement if he had told his migration agent, not only that his parents’ were threatened. It does not accept he was misguided by his agent as the reason for the omission in evidence.
The Tribunal does not accept the applicant’s responses explain why he only mentioned his family being robbed in his statement attached to his protection visa application outlining his claims for protection and not the assaults at the [shop], in Rangpur and in Dhaka. The Tribunal is of the view if he was assaulted in the manner claimed, or had rocks thrown at his house and was threatened with is life he would have mentioned it in his statement, due to the significance of these events.
Similarly it does not accept the applicant’s responses as to why he did not mention the assaults at the [shop], in Rangpur and in Dhaka when he was asked on a number of occasions, in the manner outlined above, whether he had anything to add.
The Tribunal is therefore of the view that the applicant has fabricated and embellished his claims as to the difficulties faced. This adds to the finding he is not a credible witness.
Reason targeted
The applicant’s evidence has changed over time as to why he was targeted after the December 2008 national election by Awami League activists. While he has been largely consistent throughout the process as to his roles and work with the JCD and that the Awami League targeted him because he worked for the BNP candidate in his local area, [Mr C], he has added other evidence central to his claims only before the Tribunal, which further undermines his credibility.
Firstly, in his letter to the Tribunal of October 2016 outlining why he fears return, and then again at the Tribunal hearing and in his post-hearing submission, he claims he became a target as he was a polling agent in the December 2008 election, witnessed the malpractice and rigging by the Awami League and reported it to the authorities. He claims due to this he was identified as a diehard supporter, who fights for injustice and tyranny and the Awami League thugs do not like this type of figure. In his October 2016 statement to the Tribunal he gave this as the main reason he was targeted by the Awami League. However, despite claiming this, there is no mention in his statement attached to his protection visa application or at the Department interview that he was targeted due to his role as a polling agent and reporting the Awami League malpractice at the election to the authorities. This is particularly of concern as the applicant was asked at the Department interview, as raised with him via the process outlined in s.424AA, whether there was anything more he would like to add to his claims, whether there is anything else he wanted to tell about his application and was asked whether he had put forward all his claims for protection, to which he responded in the affirmative.
When raised with him at the Tribunal hearing he replied that he had the help of an agent but he did not explain that he had to include each and every event. He said his mind was blank at the Department interview. He later said it was an interpretation issue at the Department interview as to why he did not raise it.
For the reasons outlined in the paragraph above, and considered there, the Tribunal does not accept the applicant’s responses as explaining the inconsistency. Due to its significance it is of the view if he was targeted due to his role as a polling agent and reporting the malpractice of the Awami League, he would have provided the evidence to the Department. It is of the view that he has fabricated his evidence to enhance his claims for protection. It adds to the finding he is not a credible witness.
Further, the applicant only raised at the Tribunal hearing that he was targeted by the Awami League when campaigning in the December 2008 election as he criticized Sheikh Hasina (leader of the Awami League) and her father, and that this is punishable with jail time. Similar to the reasoning above the Tribunal is of the view if true he would have raised it earlier not only before the Tribunal. This is particularly so as although he talked about campaigning in the 2008 election at the Department interview he did not talk of criticizing Sheikh Hasina and her father or claim it as a reason he was later targeted. Similar to the reasons given above it does not accept he did not provide the evidence for the reasons claimed and rejected above. It adds to the finding he is not a credible witness.
Leaving to Dhaka and Hiding
The applicant claims that as a result of the difficulties he faced due to his political involvement and activities he went to Dhaka and lived with friends in April 2009 to avoid the difficulties he faced. He first claimed this at the Department interview.
He then indicated for the first time at the Tribunal hearing that he went into hiding ten to fifteen days after he came to Dhaka, leaving his rented place in Dhaka and staying with different friends. He said this was because Awami League activists found him in and beat him up. He said that they warned him to stay away from the BNP.
However, despite claiming to have fled to Dhaka at the Department interview and Tribunal hearing, there is no mention of this in his statement. When raised at the Department interview he said he did not know he had to write every detail, he had told the agent what happened and did not know the exact times. He said he did not know he should. He said his statement refers to him leaving.
When asked at the Tribunal hearing why he did not include moving to Dhaka due to the threats in his statement and then going into hiding in Dhaka because of the assault in the Department interview and in his statement; he provided the following responses. He said when he applied he was misguided by the agent and he did not realize he had to put in each and every event in. He said he did talk of physical torture and harassment generally.
The Tribunal does not accept the applicant’s responses as to why he did not mention going to Dhaka because of the threats in his statement. These have been considered above and rejected. It has difficulty accepting that he would only talk of his parent’s house being looted, and his parent’s being insulted when he was not there, and not mention fleeing to Dhaka as a result or going into hiding after an assault. It expects if true he went to Dhaka because of the threats, he would have mentioned it. It is of the view he would talk of the incidents in detail not just that he was physically tortured and harassed due to the significance of the event.
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.
Delay in Applying for Protection
The Tribunal also views as inconsistent with his claims of the difficulties he faced, which he claims led him to go into hiding in 2009 and caused him to flee Bangladesh to save his life, is his delay in applying for protection in Australia.
As evidenced by the Department decision submitted to the Tribunal by the applicant and the applicant’s own evidence the applicant arrived in Australia [in] July 2009 and applied for a protection visa [in] December 2014, being a delay of approximately 5 and a half years since his arrival. The evidence indicates his student visa ceased in mid-2013 after his application for a student visa was refused by the Tribunal. From this time he was living unlawfully in Australia until he applied for a protection visa.
The applicant’s oral evidence as to the reason for this delay was that he had no information about applying for protection. He said he was misadvised that he could not apply for protection while the holder of a student visa. He said in 2014 he discovered he could apply. When the Tribunal raised with him why he did not give this reason but a different reason why he did not apply earlier; he said he was frustrated and was waiting to see what happened after the January 2014 election and whether there would be a further election when BNP came to power. This later response was essentially the response he gave to the Department at interview as to why he did not apply for protection earlier. He said he was worried as he had not seen his parents for five years and said if there was a change in Government after the January 2014 election he would have been able to return. He said in the last twenty years there had been a change in government every 5 years. He also added at the Department interview that he was not focused.
An applicant’s delay in applying for refugee status is a relevant consideration in the assessment of credibility of an applicant’s claims for refugee status. The period of time that has elapsed between an applicant’s arrival in Australia and the time when he or she claims refugee status, may be considered when assessing the genuineness, or at least the depth, of an applicant’s subjective fear of persecution. As was suggested to the applicant by the Tribunal at hearing such a delay may lead the Tribunal to conclude that the applicant is not genuine in his fear of persecution or faced the difficulties he claimed, in that if he genuinely feared persecution he would have applied sooner. In particular the Tribunal raised with him that if he fears return because of his claimed past involvement in Bangladeshi Politics and because of the threats of harm made to him and physical harm he suffered in 2008 and in 2009 it may expect on his arrival he would apply for asylum sooner five and a half years after his arrival. This is particularly so as for approximately 17 months proper to his application for protection he was in Australia without a valid visa

The Tribunal does not accept his reasons for his delay in applying for protection as it expects that if he truly feared persecution and left Bangladesh because of the reasons he claims in fear he would have applied sooner. It does not accept his reason that he did not apply as he lacked information. The applicant is well educated and speaks and reads English (as indicated in his application) and it expects if he departed for the reasons claimed he would have sought the information earlier. It also is of the view he would have checked whether he could apply for protection on a student visa not just rely on what someone told him if he fled Bangladesh for the reasons he claims. It also views as waiting for five years to see the outcome of the election to be inconsistent with his claim of fleeing in fear. It is of the view if he faced the difficulties in Bangladesh he claimed he would not have waited until 2014 to apply for protection. Further, the election was held in January 2014 and he did not apply until December 2014, long after the time when a further election would be held or announced.
His delay therefore adds to the finding he is not credible as to his fear of return and it adds to the finding that he is not credible that he was threatened with harm or assaulted by Awami League activists in the manner claimed or that he departed Bangladesh in fear because of his involvement in the JCD, BNP or Jubo Dal.
This adds to the finding the applicant is not a credible witness.
Involvement and activities with JCD, Jubo Dal and BNP
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, the Jubo Dal (youth wing of the BNP) acting for the BNP. He claims this together with his rolls, and activism is why he and his family were targeted by the Awami League, Chattra Dal and the police acting on their behalf.
However for the reasons that follow, the Tribunal does not accept the applicant is a credible witness as to his involvment or interest in the JCD, Jubo Dal and BNP in Bangladesh in the manner he claimed. This adds to the finding the applicant is not a credible witness.
It is the applicant’s claim he was involved in the JCD, the student organisation of the BNP from 2002 until his departure in 2009, working for and with the BNP at meetings, attending demonstrations and promoting the BNP candidate at election. He claims he held a number of committee positions within the JCD and one with the Jubo Dal.
.It is also his evidence that he continued to be actively involved at his College as [senior office bearer] of the JCD in 2009 even after he was harmed and threatened because of his political belief and activism. His evidence is that he is well educated, having completed High School, a [course] in Bangladesh, [another course] in Australia and was enrolled in a Bachelor course in 2009 in Bangladesh.
However, despite his active involvement, conviction for the JCD and BNP, continuing with his activities despite being threatened and assaulted and his level of education;
·The applicant was unable to accurately draw and describe the BNP flag at the hearing before me, despite acknowledging this flag was used at the demonstrations and meetings.
While he was able to partially draw and describe the flag, including that it was half red on top and green below with a black wheel; he omitted to draw the paddy sheath in the middle and the star on top.
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 “[3]
·He was unable to describe correctly and consistent with independent information all of the four fundamental principles of the BNP, which are followed by the JCD and Jubo dal, which were laid down at the formation of the party. When asked he referred to only three, economic growth, democracy and unity. He confirmed he could only advise of three. 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] When raised he referred to the paddy sheath being the symbol.
·Further and while not solely determinative, he was unable to describe the 19 principles or programs of action. In response he said he did not know of them. The independent information indicates there are 19 principles, or programs of action that is followed by the JCD, acting with the BNP.[5]
[3] BNP Website – Constitution - at JCD Website Objectives and Aim Ibid
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 was involved at the ground level. The Tribunal does not accept this response as it is his evidence that he was involved in a number of leadership positions, attended rallies, meetings and protests where the BNP flag was in display and where the four ideals and 19 principles are central to the party. This adds to the finding the applicant was not involved in the JCD/BNP in Bangladesh in the manner claimed. This adds to the finding he is not a credible witness.
Credibility Summary
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.
In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness, stress, tension 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.
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 and Jubo Dal and a supporter of the BNP and his roles in those organisations, his parent’s home was robbed while he was not there in January 2009 and his parents were harassed by the Awami League, the paddy sheath is the BNP election symbol, and he was involved in meetings, protests and hartels and he joined the JCD in 2002. The Tribunal has also considered that the applicant was able to provide information as to [Mr C], the candidate he claimed to work for in 2008 consistent with independent information. 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.
In making these findings the Tribunal has considered the letters from [Mr A], [senior office bearer], JCD Dhaka, [Mr B], [senior office bearer] JCD, [District 1] branch and [Mr D], [office bearer], BNP, Rangpur as to the applicants involvement in the JCD and BNP, his activities and the difficulties he faced as a result. However on the basis of the applicant’s lack of credibility and the prevalence of document fraud[6], as noted in the independent information, the Tribunal places no weight on these letters.
[6] See Immigration and Refugee Board of Canada 2009, NPL103010.E - Bangladesh: Prevalence of forged, fake or falsely acquired documents, including identity documents, professional certifications, membership cards and employment records, 26 January – Accessed 4 May 2010; Bangladesh: Reports of fraudulent documents (2011-2015)
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 and his family were 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 the police; and he was a supporter, member, [office bearer] or ever involved at any level with the JCD and/or BNP and/or Jubo Dal or was ever perceived as a supporter of the JCD and/or the BNP and/or Jubo Dal and/or perceived as being opposed to the Awami League.
It follows the Tribunal does not accept as true his claim that he joined the JCD in 2002, regularly attended meetings, protests, hartals, rallies, strikes for the JCD or BNP or Jubo Dal. It follows it does not accept as true he held any position as claimed with the Jubo Dal or the JCD or BNP at College, the Thana level to anywhere, was involved as a polling agent, complained to the authorities about voting irregularities of the Awami League, campaigned in the 2008 election for the local BNP candidate and the party going door to door and criticising Sheikh Hasina and his father.
It follows it does not accept that either he or his family was ever targeted, robbed, threatened with harm and death, threatened at gunpoint, had stones thrown at their house, was ever discriminated against, harassed, attacked, assaulted, economically harmed what so ever both in or outside his college or at his home or anywhere in Bangladesh by the Awami League and Chattra League activists and members of the police force. It follows it does not accept as true he or his family sustained any of the difficulties he claims.
It follows it does not accept as true that his father had to shut down his business and move to other locations because of the threats, harassment and fear of Awami League members due to the applicant’s political involvement and activities
It follows it does not accept as true that at any time he fled to Dhaka because he feared harm from the Awami League and Chattra League or the police or went into hiding in Dhaka as he feared harm from the activists of the Awami League because of his political beliefs and activities or as he was beaten.
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 or Jubo Dal and being in opposition to the Awami League or Chattra League or Government. 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.
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 Chattra League and Awami League members and activists or anyone acting on their behalf, including the police. It follows that the Tribunal does not accept as true that at the time he departed Bangladesh in 2009 he held any concerns for his safety or feared being harmed for any of the reasons he claims.
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?
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, leader or position holder, 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 physically and verbally abused, threatened, have a gun held at them, have stones thrown at their house, be harassed, be economically harmed, have to shut down their business or move locations, have a false case laid against him, be arrested and detained, have to go into hiding, be unable to live a normal life, from the Awami League, Chattra League , police, the authorities or anyone else for the reasons he claims.
As the Tribunal has found that the applicant was never involved with the JCD or BNP or Jubo Dal in the manner he claims in Bangladesh and as it is his evidence he has not been involved 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.
As a result the Tribunal does not accept that the applicant and his family face 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, 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, leadership position, active involvement in strikes and hartels or meetings or election campaigning or criticism of Sheikh Hasina and her father or on account of any other political activities or because he will be viewed as in opposition to the Awami League or the government.
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, 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, leadership position, active involvement in strikes and hartels or meetings or election campaigning or criticism of Sheikh Hasina and her father or on account of 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
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.
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
The Tribunal has also considered whether the applicant is eligible for complementary protection. Findings have been made above in this regard.
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
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).
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).

100. 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
101. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Gabrielle Cullen
Member

Research Directorate, Immigration and Refugee Board of Canada, OttawaBGD105263.E20 August 2015 and UK Home Office, Bangladesh: Background information. Including actors of protection, and internal relocation, November 2014 at 2.11.1

[2017] AATA 588

22 March 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction