1509839 (Refugee)

1509839 (Refugee) [2017] AATA 279 (10 February 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1509839
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Linda Symons
DATE:10 February 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 09 February 2017 at 11:53am
CATCHWORDS
Refugee - Protection visa – Bangladesh – Religion – Buddhist - Social group – Member of minority indigenous group – Societal discrimination – Charitable activities – Land dispute with Muslim neighbour - Credibility – Inconsistent evidence
LEGISLATION
Migration Act 1958, ss 36(2)(a), (aa), (b), (c), 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, who claims to be a citizen of Bangladesh, arrived in Australia [in] September 2014 are the holder of a [temporary] visa which was valid until [date] October 2014. [In] October 2014, he was issued with a Bridging visa in association with his application for a Protection visa.
The applicant applied to the Department of Immigration and Border Protection (the Department) for the Protection visa [in] October 2014 and the delegate refused to grant the visa [in] July 2015. [In] July 2015, he applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 13 October 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The issues that arise on review are whether Australia has protection obligations to the applicant under the Refugees Convention or under the complementary protection criterion.
RELEVANT LAW
The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a Protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The applicant’s claims in his visa application are summarised as follows:
·He is a Bangladeshi Buddhist. His village is within [distance] kms of the Chittagong Hill Tracts territory.
·His father used to work in the Bangladeshi [office] in [Country 1], [Country 2] and [Country 3]. His [relative], [name], was a [professional] and used to work as a [occupation] for the [company]. His family is middle class and known for their charity work in the region.
·Due to his father’s medical condition and the cost of his treatment, he dropped out of University [in] September 1999. In 2003, he began working at [workplace] as a [occupation]. His father passed away in 2010 and his mother in 2012.
·When he returned home he used to donate money to the Buddhist temple in his village and to local Buddhist orphanages. His father and [relative] were major donors to the Buddhist temple in Chittagong city.
·Almost a decade ago, his father donated land to [one]Orphanage and [another] Orphanage. However, the land was not transferred and registered in the name of the orphanage. In January 2013, while he was in [Country 2], [name], [official] of the orphanage, contacted him and requested that they complete the registration process as the village committee wanted to build a new building on that land. He promised that he would visit Bangladesh soon to resolve that matter.
·[In] February 2013, he visited Bangladesh and the [official] of the orphanage told the owners of the surrounding properties that a surveyor would be there to measure the land. The surrounding owners were all Muslims.
·[In] February 2013, while they were attempting to survey the land one of the Muslim neighbours, [Mr A], interrupted them. There was an argument and [Mr A] and his group became violent. The surveyor left. He was injured when [Mr A]’s son threw a bamboo stick at him and hit him in the [face]. He had to seek treatment from a doctor for stitches to the cut on his [face].
·On the following day, he and his [relative] went to the local Police Station at [location] Thana to lodge a complaint against [Mr A] and his group. Three days later, [Mr A] and his group went to the orphanage and rampaged through the orphanage. They damaged the orphanage and temple property and destroyed some Buddha statues.
·Within a week, [Mr A] and his group went to his house while he was away. His wife and [child] escaped to a neighbour’s house. They ransacked his house. [In] March 2013, he left Bangladesh and went back to [Country 2] for work.
·While in [Country 2] he was worried about the safety of his wife and [child] so he organised for them to stay with his [sibling] in Chittagong city. [In] September 2013, his [child] was seriously ill so he returned to Bangladesh. He did not visit his village and returned to [Country 2] [number] weeks later.
·[In] January 2014, he returned to Bangladesh with the intention of performing a memorial service on the anniversary of his father’s passing in his village. They were shocked to see that their house had been destroyed. The neighbours told them that it was caused by [Mr A]’s people.
·He went to the temple to talk to [name] about the memorial service and the status of the donated land. He told him that the local Police tried to take action against [Mr A] and his people but they escaped punishment. Instead, they attacked the orphanage and his house, chopped down trees and took them away.
·[Mr A]’s people came to know that he had returned to the village. Within [number] days of his arrival at the village, a group of local “Muslim hooligans” went to his house and demanded [amount] taka. They threatened him that if he did not pay the money they would kidnap his [child]. He did not dare to organise the memorial service in his village. On the following morning, he returned to Chittagong city where he and his family had a small memorial service at his [sibling]’s house. [In] February 2014, he left Bangladesh for the last time.
·[In] July 2014, he travelled to [Country 4] with a group. He was not able to get away from the group and seek asylum as the [number] leaders held all the passports. He had to return to [Country 2] after [number] days. One month later, he got the opportunity to visit Australia and arrived here [in] September 2014. He prepared a draft statement and went to the Department twice asking for the forms. The counter staff refused to give him the forms and told him to download them from the internet or find a lawyer to assist him. A person from the Bangladeshi Buddhist community took him to see a migration agent [in] September 2014 to prepare his application for a Protection visa before his [temporary] visa expired.
The applicant has provided to the Department a copy of his previous and current Bangladeshi passports, a Death Certificate for his mother, a Death Certificate for his father, his Marriage Certificate, a document titled Status of Scheduled Land, an almost illegible document that appears to be a prescription from [Doctor A] dated [in] February 2013, a statement dated [in] February 2013 from the applicant to the Police at [location], a First Information Report dated [in] February 2013, a statement from [Mr B] and a statement from [Mr C] dated [in] September 2014.
The applicant attended an interview with the Department [in] July 2015. He provided the Department with a Medical Certificate from [Doctor A] dated [in] February 2013 indicating that he was under medical treatment for the period [date] February 2013 to [date] February 2014 During his interview, he made the following additional claims:
·His father donated the land to the orphanage in about 2008 or 2009. After his father’s death in 2010, he became the heir to his property including the land that his father had donated to the orphanage
·[Mr A] is using little less than half of the disputed land for agriculture. The orphanage uses the remainder of the land.
·It is customary in Bangladesh to inform neighbouring landlords when a block of land is being surveyed.
·[Mr A]’s people ransacked his home in [Village 1] in December 2012.
·He relocated his wife and [child] to Chittagong before he left Bangladesh to return to [Country 2] in early March 2013.
·His trip to [Country 4] in 2014 included a visit to [Country 5]. When he visited [Country 4] in 2014 he did not have a plan to seek asylum anywhere.
·If he returns to Bangladesh, he will try to re-occupy land in [Village 1] and Muslims there will kill him.
The applicant has lodged with the Tribunal a copy of the Department’s Decision Record dated [in] October 2015 and a letter of support from the Honourable [Politician 1] MP, dated [in] February 2016.
Nationality
The Tribunal finds that the applicant is a citizen of Bangladesh, based on his Bangladeshi passport, his evidence and his fluency in the Bengali language, and will assess his claims on this basis. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.
Does Australia have protection obligations to the applicant under the Refugees Convention?
The applicant gave evidence to the Tribunal that a friend helped him to write down some information and he provided it to his migration agent who prepared his visa application. He stated that the information he provided his migration agent is true and correct and that he is satisfied that his visa application is accurate and complete.
During the hearing, the Tribunal discussed with the applicant his background, his family, his employment, his reasons for leaving Bangladesh and why he fears returning to Bangladesh. The Tribunal found aspects of his evidence to be vague, implausible, contradictory and unconvincing. There were significant inconsistencies in the evidence. He made new claims throughout the process. The Tribunal formed the view that he was fabricating his evidence as he was giving it. The Tribunal has concerns in relation to his credibility and the veracity of his claims. The Tribunal’s concerns are noted below.
In his visa application filed [in] October 2014, the applicant claimed that almost a decade ago his father donated land to [one] Orphanage and [another] Orphanage but the land was not transferred and registered in the name of the orphanage. He claimed that he was contacted in January 2013 with a request to complete the registration process and he went to Bangladesh [in] February 2013 to do so. He has filed with the Tribunal a copy of the Department’s Decision Record dated [in] October 2015 which indicates that during his interview with the Department [in] July 2015, he stated that his father donated land to the orphanage in about 2008 or 2009. During the hearing, he gave evidence that his father donated land to the orphanage in January or February 2010.
These inconsistencies in the applicant’s evidence raise concerns in relation to the credibility of his claim that there was a dispute over this land in 2013. When the Tribunal raised this as an issue, he responded that his mind is not working well and it should be 2009. He stated that he does not have a note of the date. The Tribunal is of the view that if he travelled to Bangladesh from [Country 2] in February 2013 for the purpose of registering the transfer of land, he would have ascertained when the land was donated by his father to the orphanage and be aware of the date.
The applicant’s evidence is that his family is a middle-class family. He stated that his father used to work in the Bangladeshi [office] in [Country 1], [Country 2] and [Country 3] and was the [occupation]. He stated that his father retired from this employment in 2007 for medical reasons. In the circumstances, the Tribunal finds it implausible that his father would not have completed the legal process of transferring the land he donated to the orphanage and having it registered in the name of the orphanage prior to his death in 2010. When the Tribunal raised this as an issue with the applicant, he responded that his father wanted to give the land to the orphanage and the [official] at the orphanage did not put pressure on his father to do so. He stated that his father was a busy man. The Tribunal does not accept this explanation as his father had retired prior to 2009 when he claims the land was donated.
The Tribunal also finds it implausible that, if the applicant inherited his father’s estate in 2010, he had not have resolved the issue of transferring the land to the orphanage prior to 2013 particularly in view of his evidence that he wanted to follow in his father’s footsteps by supporting the Buddhist temples and orphanages.
In his visa application, the applicant claimed that [in] February 2013 a surveyor was attempting to survey the subject land when one of the Muslim neighbours named [Mr A] interrupted them. He claimed that there was an argument and [Mr A] and his group became violent. He claimed that he was injured when [Mr A]’s son threw a bamboo stick at him and hit him in the [face]. He claimed that he had to seek treatment from a doctor for stitches to the cut on his [face]. During the hearing, the applicant gave evidence that whilst the surveyor was surveying the land an argument broke out and [Mr A] hit him on his face with a bamboo stick. He stated that he suffered a cut on his [face] and sought medical treatment at a clinic. He stated that he received [number] stitches for the cut. He stated that he received prescriptions for [number] kinds of medication including [treatments] to relieve the pain. He stated that he went back to the doctor [number] days later and was told to continue with the medication and he would be alright.
The Tribunal raised as an issue with the applicant the inconsistency in his evidence in his visa application that [Mr A]’s son threw a bamboo stick at him and his evidence to the Tribunal that [Mr A] hit him in the face with a bamboo stick. The Tribunal noted that this inconsistency in his evidence raised issues in relation to the credibility of his claims. He responded that he stated in his written evidence that [Mr A] hit him. This is not consistent with the evidence before the Tribunal. This inconsistency in his evidence raises further concerns about the credibility of his claims.
The applicant has provided to the Department a couple of supporting medical documents. The first document is a prescription dated [in] February 2013. It prescribes nine types of medication. The Tribunal finds it implausible that the applicant would have been prescribed [number] types of medication, including antibiotics, for a cut on his [face]. When the Tribunal raised this as an issue with the applicant and its concerns in relation to the authenticity of this document, he responded that if he could remember the names of the medicines he would not have these problems in his life. He stated that whatever medicine they gave him he mentioned. This response does not make any sense and does not address the issues raised with him. The Tribunal is not satisfied that this prescription is an authentic document.
The second document is a Medical Certificate dated [in] February 2013. It indicates that the applicant was under the doctor’s treatment from [date] February 2013 to [date] February 2014 in relation to an injury to [a certain] area. The applicant’s evidence to the Tribunal is that he sought medical treatment [in] February 2013 in relation to a cut on his [face], returned to the doctor [number] days later ([date] February 2013) and was advised to continue with his medication. When the Tribunal raised this as an issue with the applicant and its concerns in relation to the authenticity of this document, he responded that he is confident that the date is a mistake and that the year should be 2013 and not 2014. The Tribunal accepts that it is possible that a mistake was made in writing [date] February 2014 instead of [date] February 2013. However, the applicant’s response does not address the other issues raised by the Tribunal and does not alleviate the Tribunal’s concerns. The Tribunal is not satisfied that this Medical Certificate is an authentic document.
The applicant has provided to the Department two supporting letters. The first letter is from [Mr B] and is dated “[date]/09/20”. In his letter, he states that he arranged with the applicant to go to the Government Register Office [in] February 2013 to register the land. He stated that some local followers of [Mr A] attacked the applicant on the middle of the road and he was seriously wounded on his [face] and body. This is not consistent with the applicant’s evidence to the Tribunal that the dispute arose as a result of the surveyor indicating that [Mr A] had occupied some of the land that had been donated to the orphanage, that the assault occurred on the land, that he was hit in the face with a bamboo stick by [Mr A] and suffered a cut to his [face]. When the Tribunal raised this as an issue with the applicant and its concerns in relation to the credibility of his claims and the authenticity of this document, he responded that this letter refers to a different incident that occurred when he was on his way to the Government Registry Office.
The Tribunal asked the applicant whether he is now claiming that he was attacked twice and he responded yes. He stated that [Mr B] was with him when he was on his way to the Government Register Office. When asked when this second incident occurred, he responded that he could not remember the date but it was after [date] February 2013. When asked why he had not mentioned this previously, he responded that he was not okay with everything that was happening to him and things were going on here and there. He stated that he asked [Mr B] to give him a letter and then told the Tribunal that. When asked whether he changed his story to match the details in the letter, he responded that it did happen. When the Tribunal noted that he had not mentioned this incident in his visa application or during his interview with the Department [in] July 2015, he responded that he could not change what he had said before.

The Tribunal does not accept this explanation. Firstly, the Tribunal is of the view that if the applicant was attacked twice he would have said so in his visa application and during his interview with the Department [in] July 2015. Secondly, he gave evidence to the Tribunal that this incident happened after [date] February 2013. The letter states that this incident occurred on [date] February 2013. Thirdly, he gave evidence to the Tribunal that after he was assaulted by [Mr A] on the land he went to a clinic to seek medical treatment. He made no mention of going to the Government Register Office on that date. Fourthly, when another problem in his evidence was raised with him subsequently, he stated that he sought medical treatment at a hospital, was admitted to hospital and not discharged until the following day when he went to the Police Station.
Fifthly, the applicant earlier gave evidence to the Tribunal that when an argument broke out between him and [Mr A], the surveyor left and has not returned to the land to complete the job. He stated that he has still not registered the land. It is therefore highly unlikely that he and [Mr B] would have been on their way to the Government Register Office [in] February 2013 to register the land without a surveyor’s report. Sixthly, the medical evidence provided by him makes no reference to him being treated for injuries to his [face] or his body as stated by [Mr B]. Seventhly, in his statement to the Police he makes no mention of a second assault whilst on his way to the Government Registry Office. The Tribunal finds it implausible that he would have mentioned the first assault in his statement to the Police and not mention the second.
The Tribunal is of the view that the applicant changed his evidence to the Tribunal to fit in with the details in this letter. The Tribunal is not satisfied that this letter is an authentic document.
The second letter is from [Mr C], Temple [official], dated [in] September 2014. In his letter, he states that the applicant was continuing “development works” in the Buddhist temple and, for this reason, some “miscreants” attacked and injured him [in] February 2013. He stated that during the attack the applicant was seriously wounded on the [face]. This is not consistent with the applicant’s evidence. When the Tribunal raised this as an issue with the applicant and its concerns in relation to the credibility of his claims and the authenticity of this document, he responded that there are two orphanages and [Mr C] was not there at the time of the assault. He stated that [Mr C] wanted to give something to him so he gave him this letter. When asked why he contacted [Mr C] and obtained a letter from him if he was not present during the assault, he responded that because they gave him a donation he wanted to support him. He stated that this incident occurred and he gave him this letter.
The Tribunal does not accept this explanation. Firstly, if [Mr C] was not present during the assault he is not in a position to give first-hand evidence of what happened at that time. For this reason and the reasons given in paragraphs 27 and 28 below, the Tribunal is not satisfied that this letter is an authentic document.
In his visa application, the applicant claimed that [in] February 2013 he and his [relative] went to the local Police Station at [location] to lodge a complaint against [Mr A] and his group. During the hearing, he gave evidence that he reported the assault to the Police [in] February 2013. He stated that the Police made a note of his complaint and told him that they would look into it. He stated that they did not do anything. He stated that a few days later [Mr A]’s group went to the orphanage and damaged it. He stated that he returned to the Police Station and made another complaint. He stated that the Police told him that they already knew about this incident and would take care of it. He made no mention of returning to the Police Station in his visa application and this raises concerns in relation to the credibility of this new claim.
The applicant has provided to the Department copies of a written statement dated [in] February 2013 from him to the Police and a First Information Report. In his written statement, he refers to [name], a member of [Mr A]’s gang, throwing a bamboo crutch at his head causing an injury to his [face]. He stated that he was admitted to the local hospital for medical treatment. This is not consistent with his previous evidence to the Tribunal that he was assaulted by [Mr A] and received medical treatment at a clinic. When the Tribunal raised this as an issue with him, he responded that he went to the local clinic and was admitted there and went to the Police Station the following day. He did not address the issues raised by the Tribunal in his response. These inconsistencies in his evidence raise concerns in relation to the credibility of his claims and the authenticity of this document.
The First Information Report is dated [in] February 2013. However, it refers to the First Information Report being sent from the Police Station on [the next day] February 2013. The Tribunal raised this as an issue with the applicant and noted that it raised concerns in relation to the authenticity of this document and the credibility of his claims. He responded that it must have said that the incident occurred [earlier in] February 2013 and was reported to the Police [the next day] February 2013. He stated that he does not know how this occurred and he is not responsible for the translation of the document. This is not consistent with his earlier evidence to the Tribunal that he had read the supporting documents that he had provided to the Department and was satisfied that the information in them is true and correct. When the Tribunal reminded him of his earlier evidence, he responded that he felt it was accurate.
The Tribunal raised as an issue with the applicant the problems with the supporting documents he had provided the Department and its concerns in relation to the authenticity of these documents. He responded that there are a lot of problems in his country and he is afraid of getting documents again. He stated that he is sure there are mistakes. He stated that in his country people do not see what is true and false. He stated that whoever has the power is always right. He stated that in his country the minority do not have a cent. When the Tribunal reminded him of his earlier evidence that, despite being a member of a minority, his father was a wealthy man, he responded that he was also a wealthy man. He stated that if his father was alive nothing would have happened.
In his visa application, the applicant claimed that within a week of him reporting the assault to the Police [in] February 2013 [Mr A] and his group went to his house while he was away and ransacked his house. He claimed that his wife and [child] escaped to a neighbour’s house. He claimed that [in] March 2013, he left Bangladesh and went back to [Country 2] for work. During his interview with the Department [in] July 2015, he made a new claim that [Mr A]’s people also ransacked his home in [Village 1] in December 2012. His failure to mention this incident in December 2012 in his visa application raises concerns in relation to the credibility of this claim.
During the hearing, the applicant gave evidence that [Mr A] and his group never entered his house. He stated that they made “bad comments” outside his home but never went inside. When the Tribunal raised these inconsistencies in his evidence as an issue and noted that it raised concerns in relation to the credibility of his claims, he responded that during his interview with the Department he was asked why he did not mention the two incidents so he added that. He stated that they were always around his home and throwing things towards his home. He stated that they did not go inside his home or do anything. He stated that they destroyed what was outside his house. When asked what they destroyed, he responded that they had a shed for chickens and a garden with flowers and they destroyed those. These new claims are not consistent with his previous claims. His response did not address the issues raised by the Tribunal.
In his visa application, the applicant claimed that he left Bangladesh [in] March 2013 and returned to [Country 2] for work. He claimed that, whilst he was in [Country 2], he was worried about the safety of his wife and [child] so he organised for them to stay with his [sibling] in Chittagong city. During his interview with the Department [in] July 2015, he gave evidence that he relocated his wife and [child] to Chittagong before he left Bangladesh to return to [Country 2] in early March 2013. The Tribunal is of the view that if his home was ransacked in December 2012, or alternatively, the shed for chickens and the flowers in the garden were destroyed, the Tribunal would expect that he would have relocated his wife and child to Chittagong at that time without leaving them unprotected in [Village 1] until March 2013. This raises further concerns in relation to the credibility of his claims.
In his visa application, the applicant claimed that [in] January 2014 he returned to Bangladesh with the intention of performing a memorial service in his village on the anniversary of his father’s passing. He claimed that when he went to his village he was shocked to find that his house had been destroyed. He claimed that, within three days of his arrival at the village, a group of local “Muslim hooligans” went to his house, demanded [amount] taka and threatened him that if he did not pay the money they would kidnap his [child]. He claimed that he returned to Chittagong city on the following morning. He claimed that he and his family had a small memorial service at his [sibling]’s house and he left Bangladesh [in] February 2014. During the hearing, the applicant gave evidence that he has not returned to his village since he left after the incident [in] February 2013.
The Tribunal raised these inconsistencies in his evidence as an issue with the applicant and noted that it raised concerns in relation to the credibility of his claims. He responded that it looks like he is a liar but he is not a liar. He stated that his mind does not work and he is not well. When asked why his mind is not working, he responded “where is my wife?”, “where is my [child]?”, “where is my [sibling]?”, “where is my job?” He stated that he has lost everything. He earlier gave evidence to the Tribunal that his wife divorced him. He has provided to the Tribunal an Affidavit of Divorce by his wife dated [in] March 2016. His response does not address the issues that were raised with him. He has not provided the Tribunal with any evidence to indicate that he has any mental health problems. The Tribunal had the opportunity to observe him over a lengthy period of time during the hearing and to discuss his claims with him. The Tribunal is satisfied that he understood what was happening and was able to participate in the hearing in a meaningful way.
In his visa application, the applicant claimed that [in] July 2014 he travelled to [Country 4] with a group. He claimed that he was not able to get away from the group and seek asylum as the [number] leaders held all the passports. During his interview with the Department [in] July 2015, he stated that he travelled to [Country 4] and [Country 5] in 2014 with [number] friends. He stated that their trip was not organized through a company. He stated that, at that time, he did not have a plan to seek asylum anywhere. When the Tribunal raised with him this inconsistency in his evidence and its concerns in relation to the credibility of these claims, he responded that if he was going on a personal tour he would not have gone there. He stated that they went there as a group. This response does not address the issues raised by the Tribunal.
The Tribunal noted that he has claimed that a number of incidents occurred in Bangladesh between February 2013 and February 2014. The Tribunal noted that he travelled to [Country 4] and [Country 5] in July 2014. The Tribunal noted that both these countries are signatories to the Refugees Convention and would expect that if he genuinely feared for his safety in Bangladesh he would have sought asylum in either [Country 5] or [Country 4]. The Tribunal noted that his failure to do so raises concerns in relation to the credibility of his claims. He responded that it takes about two or three days to “hop around”. He stated that he and his friends went together for a short holiday. He stated that he had respect for them and had to return with them. The Tribunal does not accept this explanation. The Tribunal is of the view that the applicant’s conduct is not consistent with his claims.
The Tribunal asked the applicant what he thought would happen if he returned to Bangladesh. He responded that he would definitely be killed. He stated that while he is alive they are not able to take his land but if he returns to Bangladesh he will be killed and his land will be taken. He stated that it is easy for Muslims to kill minorities. He stated that his father used to put a lot of effort into spreading his religion and he used to do the same. When asked how he spread his religion, he responded that he donated money to the temple and the orphanage. He stated that in September 2013 he donated money to an orphanage for a feast for the children.
The Tribunal discussed with the applicant relocation to another place in Bangladesh. He responded that he does not feel safe if he returns to Bangladesh. He stated that if he lives in Dhaka they will find him there. When the Tribunal noted that he returned to Bangladesh twice in September 2013 and February 2014 and they did not find him, he responded that he lived at his [sibling]’s home in secret.
When asked whether he had any other reason why he did not wish to return to Bangladesh, the applicant stated that he wants to preach his religion like his father did. He stated that Muslims do not want any other religion preached in Bangladesh. When asked whether he had ever preached his religion in Bangladesh, he responded that it is kind of preaching if he promotes events or feeds the children at the orphanage and supports them. The Tribunal sought clarification in relation to whether he was stating that he wanted to continue assisting the temple and donating money to the orphanage if he returned to Bangladesh. He responded that his father devoted his life to helping [minority group] and he wants to follow in his father’s footsteps. He stated that he will continue supporting the temple and the orphanage like he did previously. He stated that Muslims want to destroy temples and establish residences or mosques in their place.
At the end of the hearing, the applicant stated that he is from a good family and used to have a good job and income. He stated that something happened. He stated that working in an [workplace] is a sensitive job and if you make a mistake you have to leave. He stated that when his father was alive and when he was working in the [workplace] in [Country 2] they organised feasts at the orphanage. He stated that he is no longer able to do so. He stated that he asked his wife to come with him to Australia but she did not. He stated that he approached the honourable [Politician 1], Federal Member for [electorate], to seek his assistance to obtain a visa for his wife. He stated that his wife has now left and he only has his [child]. He stated that he wants to bring his [child] to live with him in Australia. He stated that he used to have a good life but now has a miserable life and has lost a lot of weight. He stated that he is requesting the Australian government to let him stay in Australia so that he can support his [child] and [sibling].
The Tribunal has had regard to a document titled Status of Scheduled Land provided by the applicant to the Department. It refers to land in the village of north [location] and to ledger numbers. It does not indicate who owns that land. The Tribunal has also had regard to the Death Certificates for the applicant’s parents, a letter from the honourable [Politician 1] dated [in] February 2016 and the other supporting documents referred to above.
The Tribunal has had regard to the policy guidelines prepared by the Department and the relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country information
In its Country Information Report on Bangladesh dated 5 July 2016, DFAT states as follows:
Buddhists
There are approximately one million Buddhists in Bangladesh. Most are indigenous          people in the CHT (the Chakmas, Jummas, Pyus and Kanyas), although a small        number also live in Dhaka (see ‘Indigenous People’, above).
Buddhists have been subjected to infrequent acts of societal violence because of             their perceived political affiliations with the AL. On 30 September 2012 BNP and JI   members burned several Buddhist temples and approximately 50 Buddhist houses in   Cox’s Bazar during broader Islamist protests sparked by a posting on Facebook (see   ‘Rohingyas’, above). DFAT understands that this was the worst attack against the                Buddhist community in Bangladesh’s history and that police responded effectively to                    the incident, preventing further violence. A Government committee formed to   investigate the incident is yet to report its findings. ISIL claimed responsibility for the   murder of a Buddhist monk in the CHT on 14 May 2016.
DFAT assesses that Buddhists face a low risk of societal violence on a day-to-day   basis. Incidents of religious and political violence against the Buddhist community are              infrequent and generally take place in the context of other events, such as wider   protests.
Indigenous people – Chittagong Hill Tracts (CHT)
There are at least 27 different indigenous groups in the Chittagong Hill Tracts (CHT). People in these groups differ from the majority Bengali population in physical appearance (more closely resembling people in Myanmar and northeast India), culture, social organisation and religion (the majority are Buddhist, although some are also Muslim, Christian, Hindu or animist). They also have their own languages, such as Marma and Kokborok, although many also speak Bengali. The Constitution provides for the protection and development of the culture and traditions of ethnic minorities, including indigenous people.
The CHT are governed under a Special Administrative System headed by indigenous                  leaders. This system comprises district and regional councils with both indigenous   and Government representatives. Access to education and health has improved   significantly as a result of United Nations Development Program activities, although   access remains problematic for indigenous people who live in remote areas. The   CHT remain heavily militarised, with local NGOs having reported the presence of   over 400 military camps and military checkpoints in the area. Indigenous people and              Bengalis both serve as members of the local police force.
Indigenous people in the CHT have suffered disproportionately from land   appropriation by authorities and others, including Bengali ‘settlers’ and commercial   entities. Local NGOs have told DFAT that military personnel provide tacit support for                 this appropriation by failing to prevent or respond to acts of physical violence against   indigenous people occupying valuable land. According to Human Rights Watch,   settlers have attacked indigenous homes, shops and places of worship, and have             subjected indigenous women and girls to sexual violence (see ‘Women’, below).   These acts have resulted in sporadic clashes between settlers and indigenous   groups. DFAT understands that the Land Commission established pursuant to the   1997 Peace Accord does not take into account customary law in cases involving   indigenous claimants, making it difficult for them to establish their property rights (see             ‘State Protection’, below).
DFAT assesses that indigenous people in the CHT are subjected to a moderate level                  of official discrimination because of the lack of recognition of their customary property                  rights. Indigenous people face a low risk of societal violence on a day-to-day basis;   incidents of violence against indigenous people are sporadic and are mostly tied to                   land appropriation.
Findings

Having considered all the applicant’s claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.
The Tribunal accepts that the applicant was born on [date] at [Village 1] in the district of Chittagong in Bangladesh. The Tribunal accepts that he is a member of the [minority group] indigenous community and is a Buddhist. The Tribunal accepts that he has one sibling, a [gender], , who was born on [date]. The Tribunal accepts that his father worked as a [occupation] to the Bangladeshi [official] and was posted to [Country 1], [Country 2] and [Country 3]. The Tribunal accepts that he got married [in] May 2009 and has a [child] who was born on [date]. The Tribunal accepts that his wife has now divorced him. The Tribunal accepts that his father passed away [in] April 2010 and his mother passed away [in] February 2012.
The Tribunal accepts that the applicant worked in an [workplace] in [Country 2] from [date] November 2003 to [date] September 2014. The Tribunal accepts that he visited his family in Bangladesh two to three times a year. The Tribunal accepts that he left Bangladesh for the last time [in] February 2014. The Tribunal accepts that he travelled to [Country 4] and [Country 5] for a holiday with [number] friends from [date] July 2014 to [date] July 2014.
The Tribunal accepts that the applicant’s father financially supported Buddhist temples and orphanages and that he donated land to an orphanage. The Tribunal accepts that the applicant also donated money to Buddhist temples and orphanages whilst he was working in [Country 2]. The Tribunal accepts that there was a dispute between a Buddhist orphanage and a Muslim neighbour over land that had been donated by the applicant’s father to the Buddhist orphanage. The Tribunal does not accept that the applicant was involved in the dispute or that he was assaulted because of the dispute. The Tribunal does not accept that the applicant was involved in a dispute with [Mr A], and his people and does not accept that he was or is of adverse interest to any of them. It follows that the Tribunal does not accept any of his claims that flow from that.
The Tribunal does not accept that the applicant travelled to [Country 4] with a tour group in July 2014 and was not able to get away from the group and seek asylum as the [number] leaders held all the passports. The Tribunal does not accept that he had any intention of seeking asylum when he went to [Country 4] and [Country 5] in July 2014.
The Tribunal is not satisfied that the prescription from [Doctor A] dated [in] February 2013, the Medical Certificate from [Doctor A] dated [in] February 2013, the statement dated [in] February 2013 from the applicant to the Police at [location], the First Information Report dated [in] February 2013, the statement from [Mr B] and the statement from [Mr C] dated [in] September 2014 are authentic documents.
The Tribunal does not accept that Muslims will kill the applicant if he returns to Bangladesh and re-occupies his land in [Village 1]. The Tribunal does not accept that the applicant will preach or proselytise if he returns to Bangladesh. The Tribunal accepts that the applicant may wish to continue to financially support Buddhist temples and orphanages if he returns to Bangladesh. The Tribunal is not satisfied that this will lead to him suffering serious harm or significant harm.
The Tribunal accepts that the applicant may have suffered some societal discrimination in the past because of his [minority group] ethnicity and/or his religion and that he may do so again in the future. The Tribunal is not satisfied that this would amount to serious harm or significant harm. In view of the country information above, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for reason of his race or religion if he returns to Bangladesh now or in the reasonably foreseeable future.
The Tribunal accepts that something happened during the course of the applicant’s employment at an [workplace] in [Country 2] which resulted in him leaving that job. The Tribunal accepts that the applicant does not wish to return to Bangladesh and would prefer to live in Australia. The Tribunal accepts that he would like to bring his [child] to Australia to live here with him.
In view of the above findings, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of his race, religion or any other Refugees Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for a Refugees Convention reason. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicant under the complementary protection criterion?
The Tribunal has considered the applicant’s claims under complementary protection.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Bangladesh now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.

Linda Symons

Member

[2017] AATA 279

10 February 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction