1510057 (Refugee)

[2017] AATA 341

1510057 (Refugee) [2017] AATA 341 (28 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1510057

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Linda Symons

DATE:28 February 2017

PLACE OF DECISION:  Sydney

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

Statement made on 28 February 2017 at 6:03pm

CATCHWORDS

Refugee – Protection visa – Bangladesh – Political opinion – BNP supporter – Land dispute – Family harmed – Targeted by Police – 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

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

2. The applicant, who claims to be a citizen of Bangladesh, arrived in Australia [in] January 2008 as the holder of a [Student] visa that was valid until [date] March 2010. [In] March 2010, he was granted a Bridging visa in association with his application for [Visa 1]. [In] May 2011, he was granted a further Bridging visa. [In] May 2011, he departed Australia and travelled to Bangladesh. He returned to Australia [in] June 2011. His Bridging visa expired [in] May 2013 and he thereafter became an unlawful non-citizen.

3. [In] May 2013 and [in] June 2013, the applicant was granted two further Bridging visas the last of which expired [in] November 2013. He thereafter became an unlawful non-citizen. [In] November 2013, he was granted another Bridging visa that expired [in] December 2013. He thereafter became an unlawful non-citizen. [In] December 2013, he was granted a Bridging visa in association with his first application for a Protection visa which was found to be an invalid application. [In] February 2014, he was granted a Bridging visa in association with his second (current) application for a Protection visa. He was granted a further Bridging visa [in] October 2015.

4. The applicant applied to the Department of Immigration and Border Protection (the Department) for [Visa 1] [in] March 2010. This application was refused [in] November 2011. He applied to the Migration Review Tribunal (MRT) (as it was then called) on 30 November 2011 for a review of this decision. On 10 April 2013, the MRT affirmed the decision of the Department. [In] May 2013, he lodged an application for judicial review with the Federal Circuit Court. [In] October 2013, the Federal Circuit Court dismissed his application.

5. The applicant lodged his first application for a Protection visa with the Department [in] December 2013. The Department found that this was not a valid application. [In] February 2014, he lodged a second application for a Protection visa. The delegate refused to grant the visa [in] June 2015. On 29 July 2015, he applied to the Tribunal for review of this decision.

6. The applicant appeared before the Tribunal on 11 January 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

7. The issues that arise on review are whether Australia has protection obligations to the applicant under the Refugees Convention or under complementary protection.

   RELEVANT LAW

8. 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

9. 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

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

    Section 499 Ministerial Direction

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

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

12. The applicant’s claims in his application for a Protection visa lodged [in] February 2014 are summarised as follows:

    ·Most of his family supports the opposition party. In 2010, one of his brothers and his [relative] were attacked and his family was threatened that they would destroy him. His brother informed the Police but nothing changed. In May 2011, he travelled to Bangladesh but returned for his safety after 12 days. 

    ·He fears returning to Bangladesh because the Police are suspicious of new people in the city and may use their special powers to arrest him. He may be imprisoned for no reason because the government is trying to put down the opposition and the Police are using this opportunity to imprison new arrivals and file false cases against them.

    ·He fears harm from Police officers who target new arrivals and people who have lived overseas to obtain money from them. He fears the Police may want a bribe from him. The Police are targeting new arrivals on suspicion that they are related to Islamic extremist groups and this is making him fearful of returning to Bangladesh.

    ·He does not think the Bangladeshi authorities will protect him because of corruption among the law enforcement authorities.

13. The applicant has provided to the Department a copy of his Bangladeshi passport, country information on Bangladesh and a complaint by [Mr A] dated [in]April 2010 to the Officer in Charge of [a] Police Station, Naogaon, requesting an entry into the General Diary.

14. The applicant attended an interview with the Department [in] December 2014. During that interview, he re-iterated and expanded on his written claims. He also made the following new claims:

    ·His father used to support Jamaat-e-Islami but now supports the Bangladesh Nationalist Party (BNP). [A number] of his brothers have become members of the BNP in the last 2 to 3 years. He has never been a member of a political party or a cultural group. He may be imputed with a political opinion because his parents do not support the ruling party.

    ·A case has been filed against his family in relation to a dispute over property. He fears a case could be filed against him because he is part of the family or his name could be added to the existing case.

15. The delegate requested the applicant to provide information in relation to whether the case against his family is ongoing. No information was provided to the Department.

16. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations. She refused his application for a Protection visa [in] June 2015.

17. The applicant has provided to the Tribunal a copy of the Department’s Decision Record dated [in] June 2015. He has also provided to the Tribunal copies of the complaint by [Mr A] dated [in] April 2010 (previously provided to the Department, a letter dated [in] December 2016 from the Emergency Department of [an Australian] Hospital and a photograph of himself bandaged.

    Nationality

18. 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?

19. The applicant gave evidence to the Tribunal that he prepared his application for a Protection visa and that the information in his visa application is true and correct. He stated that he is satisfied that his visa application is accurate and complete. He stated that there has not been much change in his circumstances since he filed his visa application [in] February 2014.

20. During the hearing, the Tribunal discussed with the applicant his background, his family, his reasons for leaving Bangladesh and why he fears returning to Bangladesh. The Tribunal found aspects of his evidence to be vague, lacking in detail and unconvincing. There were significant inconsistencies between his oral and written evidence. He made new claims throughout the process. He was unable to give a coherent account of events. The Tribunal has concerns in relation to his credibility and the veracity of his claims. The Tribunal’s concerns are noted below.

21. In his first application for a Protection visa, the applicant claimed that he left Bangladesh because the political situation is “not fair”. He stated that in the previous week there was a fire on public transport and many people died in the fire. He claimed that he used public transport when he went to Bangladesh and his life will be in danger as a result. During the hearing, he gave evidence that he left Bangladesh and came to Australia to study. When asked if that was his only reason for coming to Australia, he stated that in Bangladesh you cannot get a good job with only a [certain level of] education. He stated that the [name] course in Australia was in demand and there was a professional opportunity at that time. He stated that he thought it was better to go to an English speaking country. He stated that in European countries there is a language problem. This inconsistency in his evidence in relation to why he came to Australia raises concerns in relation to his credibility and the veracity of his claims.

22. In his current application for a Protection visa, the applicant claimed that most of his family supports the opposition party. He claimed that in 2010 one of his brothers and his [relative] were attacked and his family was threatened that they would destroy him. He claimed that his [relative] informed the Police but nothing changed. The Tribunal discussed these claims with him during the hearing. He stated that [a number] of his brothers and his [relative] were attacked. He stated that one of his brothers was badly injured and the other was hurt. He stated that the attackers went in a group to his house and made threats but no one was at home. He stated that they threw a stone, broke glass and then went away. When asked what this dispute was about, he stated that it was a dispute with one of his neighbours over land and it is now a political issue.

23. This inconsistency in the applicant’s evidence in relation to whether it was one of his brothers or two of his brothers who were attacked raises concerns in relation to his credibility and the veracity of his claims.

24. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated [in] June 2015. It indicates that, during his interview with the Department [in] December 2014, he stated that his father and his [relatives] inherited some property that they leased. He stated that there was an agreement that some of the money from the lease would go to each of the owners but the lessees refused to pay their rent. He stated that there was a dispute over this issue. He stated that his [relative] filed a complaint with the Police. He stated that his [relative] is a member of the BNP and [senior official] of [an] Organisation, which is part of the BNP, representing [a certain group of people].

25. The applicant provided to the Department and the Tribunal a copy of a complaint by [Mr A] dated [in] April 2010 to the Officer in Charge of [a] Police Station, Naogaon, requesting an entry into the General Diary. The Tribunal discussed this document with the applicant. He stated that it was a life-threatening situation, his brothers and [relative] were attacked and his family was threatened. He stated that the complaint was filed with the Police but the Police did nothing. When asked whether the information in the complaint is true and correct, he responded yes. He stated that the complaint is from the Police file. When asked whether the complaint was made to the Police before the attack or after the attack, he responded that it was after the attack.

26. The complaint indicates that [Mr A] (his [relative]) and others are joint owners of property that they inherited and have leased. His [relative] asked the lessee for his share of paddy, as it was harvest time, and the lessee abused him in foul language. His [relative] told the lessee that this would be resolved in a meeting and then went to work at his shop. Later that morning [Mr B] went to his shop with “some terrorists” and threatened and abused him in foul language. They told him they were leaving him for that day but would kill him the next time they got him. That evening his [relative] received a telephone call from his home informing him that [Mr B] went to his house with “terrorists” and tried to beat his [brother]. His neighbour saved his [brother] so they were unable to beat him but they broke the door and the light in his house and threatened to kill his [brother]. In the circumstances their “daily life is in danger” and there is a possibility that they could be killed. It requests that these facts be entered in the General Diary at the Police Station and lawful steps be taken for a proper investigation.

27. The complaint to the Police, which the applicant stated was filed after the attack, does not indicate that [any of his] brothers was attacked let alone that one was badly injured and the other was hurt. It does not indicate that a threat was made to his family that he would be destroyed. This complaint does not support his claims and raises concerns in relation to his credibility and the veracity of his claims. When this was raised as an issue with him, he responded that there should be two copies from the General Diary which will corroborate his evidence. When the Tribunal noted that he provided one complaint to the Department, he responded that he provided the Department with what he received. He stated that he did not read it carefully. He has not provided the Tribunal with any further documents to support these claims.

28. During his interview with the Department [in] December 2014, the applicant made a new claim that a case has been filed against his family in relation to the dispute over property. He claimed that he fears a case could be filed against him because he is part of the family or his name could be added to the existing case. The Tribunal discussed these claims with him. He gave evidence that the case is still pending. The Tribunal asked him why he had not provided any evidence to the Department in relation to the case when he was specifically requested to do so. He responded that he asked his brother and his brother stated that he could not go there. He then stated that his brother told him he would contact their lawyer, obtain some documents and send it to him but he did not do so. When asked why he did not ask his father to obtain some documents for him, he stated that his father is not dealing with this matter and he rarely goes out. When asked whether his father is a party to the proceedings, he stated that he is but his brother and lawyer are dealing with the matter.

29. The Tribunal does not accept this explanation as to why the applicant has not provided any evidence in relation to the Court case. His failure to do so raises concerns in relation to his credibility and the veracity of this claim. The Tribunal also finds it implausible that a case could be filed against him or his name could be added to the existing case when he is not an owner of the land and has nothing to do with the dispute.

30. In his visa application, the applicant claimed that most of his family supports the opposition party. During his interview with the Department [in] December 2014, he claimed that [a number] of his brothers have become members of the BNP in the last 2 to 3 years. He claimed that he has never been a member of a political party or cultural group. He claimed that he may be imputed with a political opinion because his parents do not support the ruling party. He claimed that his [relative] is a member of the BNP and [senior official] of [an] Organisation, which is part of the BNP, representing [a certain group of people]. The Tribunal discussed these claims with him.

31. The applicant gave evidence that he has never supported or been a member of a political party in Bangladesh. He stated that his family supports the BNP and are facing problems because of that. He stated that, because of his family, he will also be “suspected”. When asked what problems his family has been facing because they support the BNP, he responded that his brothers have not been able to stay at home for five months. He stated that the security forces go to his home all the time and if they find his brothers they will be imprisoned. He stated that this problem occurred in 2013 and is still ongoing. When asked why he did not mention these new claims in his visa application, he responded that may be his explanation was different. When asked why he did not mention these new claims during his interview with the Department [in] December 2014, he responded that he did.

32. The Tribunal asked the applicant exactly what happened to his family members. He responded that there is still a case and they are still paying money. When asked whether he was referring to the case over the land dispute, he responded yes. He stated that it is also political. He stated that in Bangladesh you can turn it into a political issue so it is easy to harass you, get you into trouble and imprison you. When asked for further details, his stated that his brothers are suspected, security forces went to their home looking for them, his brothers were informed of this by others and they went away. When asked what they were suspected of, he responded that the land case was turned into a political issue. He stated that if it was only a land case it was not a problem but it has now been turned into a political case.

33. The Tribunal asked the applicant when the security forces first went to his family home. He responded in 2011 or 2013. He then said maybe April 2011 and it got worse in 2013. When asked when the security forces last went to his family home, he responded November 2016. He stated that when they need money they go to his home.

1. The Tribunal is of the view that if the dispute over land was politicised in 2011, or alternatively in 2013, because his family supports the BNP or [a number] of his brothers are members of the BNP or his [relative] is a member of the BNP, and the security forces were looking for his brothers and his brothers cannot live at home, the applicant would have mentioned these matters in his visa application and during his interview with the Department [in] December 2014. His failure to do so raises concerns in relation to his credibility and the veracity of these claims. He has filed with the Tribunal a copy of the Department’s Decision Record dated [in] June 2015. It indicates that during his interview with the Department [in] December 2014, the delegate raised with him the issue that a civil dispute over land is not Refugees Convention related. The Tribunal is of the view that his new claim that the Court case over the land dispute has now been politicised has been fabricated for the purpose of satisfying one of the grounds under the Refugees Convention.

2. During the hearing, the applicant made new claims that he was harassed by the Police in 2006 or 2007. He stated that he read in the news that the Police had special powers under the Special Powers Act to arrest people without warrants. He claimed that he used to pass time with bad friends who were “politically related“. He claimed that when you mix with “hot minded people“ other people think you belong to that political group. He claimed that he was drinking tea in a tea shop in Dhaka with friends when three or four people came over to him and told him to go with them. He stated that he was taken to a [vehicle] and then ran away from them. He stated that this happened to him twice in 2006 or 2007. When subsequently asked for further details, he stated that the Police took him to their [vehicle], other people argued with the Police and asked them why they were taking him. He stated that those people gave money to the Police and he was then released. He stated that one of the people who gave money to the Police told him not to go back to that tea shop.

3. In his first account of this incident, the applicant claimed that he was taken to a [vehicle] by [number] people but was able to run away. He subsequently claimed that the Police took him to the [vehicle] and he was released after people in the tea shop bribed the Police. These inconsistencies in his evidence raise concerns in relation to his credibility and the veracity of this claim.

4. The applicant stated that the same thing happened again. When asked why he went back to the tea shop when he was advised not to go there, he responded that it was three or four months later. He stated that someone came up to him, asked him who he was and asked him to go with them. He stated that he knew the same thing could happen again so he left the suburb. When asked what he was doing in Dhaka, he stated that he lived in Dhaka for [number] years with his [brother] and worked as [occupation]. The Tribunal asked the applicant why he did not make these claims in his visa application or during his interview with the Department [in] December 2014. He responded “maybe I talked to them about it. I just told them like this.”

5. The Tribunal is of the view that if these incidents occurred he would have mentioned them in his visa application and during his interview with the Department [in] December 2014. The Tribunal finds it implausible that he would have gone back to the same coffee shop after he experienced the first incident and was warned not to go there. His evidence in relation to having lived in Dhaka for [number] years is not consistent with his evidence in his visa application in which he stated that he lived at [a] village in Nargaon District from [year] to December 2007. These issues raise concerns in relation to his credibility and the veracity of these claims.

6. The Tribunal asked the applicant whether he personally experienced any problems when he visited Bangladesh in 2011. He responded that if law enforcement agencies had found out that he had been in Australia they would have made a false claim against him so that they could get a bribe from him. He stated that he did not want this to happen so he returned to Australia after 10 days. He stated that he wanted to return to Bangladesh in 2013 and apply for a sponsored visa. He stated that there were political problems so he was not able to go to Bangladesh. He stated that his brothers were not able to stay at home for three or four months because they would have been caught and imprisoned if they had. He stated that he then decided not to go to Bangladesh at the time.

7. The Tribunal raised as an issue with the applicant the number of new claims he had made and noted that his failure to mention these claims previously raised concerns in relation to the credibility of these claims. He responded that he was advised to only put matters in his visa application that he could furnish documents on. He stated that during his interview with the Department he was not asked for details and that this was the first time that this happened. The Tribunal does not accept this explanation. In his visa application, he claimed that most of his family supports the opposition party. He has not provided any supporting documents but this did not prevent him from making the claim. He also made a number of claims in relation to why he fears returning to Bangladesh but has not provided any country information to support his claimed fears.    

8. The Tribunal discussed with the applicant his claims that he fears returning to Bangladesh because the Police are suspicious of new people in the city and may use their special powers to arrest him and he may be imprisoned for no reason because the government is trying to put down the opposition and the Police are using this opportunity to imprison new arrivals and file false cases against them. The Tribunal noted that if he returns to his village, where he has lived for most of his life, he would not be a “new” person. He responded that his father and brothers have to go to Court and are facing problems and questioned why he would not face the same problems. He stated that the Police think they will get more money from him. He has not provided the Department or the Tribunal with any evidence including country information to support these claims. The Tribunal is of the view that this is mere speculation on his part.

9. The Tribunal discussed with the applicant his claims that he fears returning to Bangladesh because he fears harm from Police officers who target new arrivals and people who have lived overseas to obtain money from them, he fears the Police may want a bribe from him and the Police are targeting new arrivals on suspicion that they are related to Islamic extremist groups. When asked on what basis he makes these claims, he responded that it is normal. He stated that if he was not related to his family nothing would happen to him. He stated that his family is in trouble so it is easy for him to get into trouble as well.

10. The Tribunal asked the applicant whether his [brother] who lives in Dhaka had any problems because of this. He responded that he was arrested when he was a university student. He stated that he was a little boy at that time. He stated that he was arrested again on suspicion in 2012 and released after he bribed the Police.

11. The Tribunal raised as an issue with the applicant the fact that his evidence to the Tribunal indicates that his main fear about returning to Bangladesh is the Court case against his family and the impact this could have on him. The Tribunal noted that he made no mention of the Court case in his visa application and made this claim for the first time during his interview with the Department [in] December 2014. The Tribunal noted that he was asked by the Department to provide some documentary evidence in relation to the Court case but has not done so and this raises concerns in relation to the credibility of this claim. He responded that the property is owned by his father and the Court case is in his father’s name. He stated that the lawyer who was dealing with Court case went on an extended holiday. He stated that the juniors in his office are not entitled to release documents. He stated that his brother, who is looking after the case, was in hiding and that is why the process has been delayed.

12. The Tribunal inform the applicant that his interview with the Department was [in] December 2014 and we are now in 2017. The Tribunal noted that he had more than two years in which to obtain evidence in relation to the Court case. He responded that the Department wanted the Court documents last year (2016) and he was asked much later about submitting hearing papers. He stated that in 2014 he was asked to submit documents about the land dispute. When the Tribunal reminded him of his earlier evidence that the Court case was about the land dispute, he responded that there was a time lapse after he got injured. He stated that the Department thought the Court case was finalised but it was not. He stated that he could not get the hearing papers. He stated that after he got injured he has not been in touch with his family for quite a long time. He stated that he recently contacted him.

13. The Tribunal does not accept this explanation for a number of reasons. Firstly, the Tribunal does not accept that the applicant’s father’s lawyer has been on an extended holiday from [date] December 2014 until now. Secondly, even if his brother who he claims was in hiding was unable to assist him he has [other] [siblings] who live in Bangladesh who could assist him to obtain some documentary evidence. Thirdly, his father could have contacted his lawyer and asked him to send some documentary evidence to him.

14. Fourthly, the applicant has filed with the Tribunal a copy of the Department’s Decision Record dated [in] June 2015 which indicates that he was asked during his interview [in] December 2014 to provide evidence in relation to the Court case and not in 2016 as stated. Fifthly, he has filed with the Tribunal a letter dated [in] December 2016 from [an Australian] Hospital which indicates that he presented to the Emergency Department [in] December 2016 with [injuries]. This was two years after he was asked by the Department to provide the documentary evidence. Sixthly, he gave evidence to the Tribunal that he keeps in contact with his family members once or twice a week and once or twice a month. This is not consistent with his evidence that he has not been in touch with his family for quite a long time.   

15. The Tribunal raised as an issue with the applicant the fact that a dispute over land was not a ground under he would be entitled to protection in Australia. He responded that it is related to politics and that makes it difficult.

16. The Tribunal asked the applicant what he thought would happen if he returned to Bangladesh. He responded that he will be suspected, he will be threatened all the time and the hassle will carry on. He stated that it will not be normal. When asked whether there was any reason why he could not relocate to Dhaka, he responded that the same thing could happen to him. He then stated that he is not sure. He stated that he has been in Australia for a long time and it will not be easy for him to go back to Bangladesh. He stated that things could happen at any time. He stated that it is difficult to say what kind of trouble he could get into. He stated that he is nearly [age] and has had to go through problems all his life. He stated that he recently suffered [injuries] in an accident and is undergoing treatment for that. He stated that this worries him.

17. The records of the Department indicate that the applicant arrived in Australia [in] January 2008 on a Student visa that was valid until [date] March 2010. He then applied for [Visa 1] [in] March 2010. The Department refused this application [in] November 2011. He then applied to the MRT on 30 November 2011 for a review of that decision. On 10 April 2013, the MRT affirmed the decision made by the Department. He then made an application for judicial review to the Federal Circuit Court [in] October 2013. The Federal Circuit Court dismissed his application for judicial review. He was on a Bridging visa at that time and his Bridging visa was due to expire [in] December 2013. He then lodged an application for a Protection visa [in] December 2013, one day before his Bridging visa expired. The Department found that his visa application was not valid. He then lodged his current application for a Protection visa [in] February 2014.

18. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that his immigration history may lead it to the conclusion that he lodged his application for a Protection visa to prolong his stay in Australia, after his application for [Visa 1] was unsuccessful, and not because he is in need of protection. The Tribunal also noted that this may raise concerns in relation to the credibility of his claims for protection.

19. The applicant responded that this is not correct. He stated that he studied in Australia and everything was all right at that time. He stated that the land dispute was not politicised and they were not facing harassment. He stated that the trouble started in 2010, got from bad to worse and got politicised. He stated that the dates are coincidental. He stated that the situation in Bangladesh is out of his control. He stated that his lawyer made a mistake in relation to his previous visa application and he is now suffering the consequences. He stated that he had a legal right to stay in Australia and when that right was taken away from him by his lawyer he tried to find other avenues to protect himself.

20. The Tribunal does not accept this explanation. [Visa 1] that the applicant applied for was not a permanent visa and did not allow him to remain in Australia permanently. The Tribunal is of the view that if he feared returning to Bangladesh, following the incident in April 2010, he would have obtained legal advice from his lawyer and lodged an application for a Protection visa at that time. His delay in doing so raises concerns in relation to the credibility of his claims for protection.

21. The Tribunal informed the applicant that it was not able to find any country information that indicates that Police officers target new arrivals and people who have lived overseas to obtain money from them. The Tribunal informed him that it had difficulty accepting this claim and his claim that the Police will want bribes from him. He responded that the country information will say plenty of things but the situation on the ground is different. This response does not address the issues raised by the Tribunal.

22. The Tribunal has had regard to the country information provided by the applicant to the Department. This consists of an article from The Daily Star dated 5 December 2013 in relation to the derailment of a train due to sabotage and an article from The New Nation dated 5 December 2013 in relation to a travel alert issued by the US as “pre-election periods in Bangladesh have seen unrest.”

23. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the DFAT Country Information Report on Bangladesh and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

    Findings

24. 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.

25. The Tribunal accepts that the applicant was born on [date] in Naogaon District in Bangladesh. The Tribunal accepts that he is of Bengali ethnicity and is a Muslim. The Tribunal accepts that he has never married. The Tribunal accepts that he has [siblings]. The Tribunal accepts that his parents and siblings live in Bangladesh. The Tribunal accepts that he completed High School in Bangladesh and thereafter worked as [occupation].

26. The Tribunal accepts that the applicant came to Australia [in] January 2008 for the purpose of undertaking studies in Australia. The Tribunal accepts that he completed a [course] in Australia in [year]. The Tribunal accepts that he has worked in various jobs in the [industry] in Australia. The Tribunal accepts that he unsuccessfully applied for a [Visa 1] in Australia. The Tribunal accepts that he returned to Bangladesh in May 2011 to visit his family. The Tribunal does not accept that he returned to Australia after 14 days because his safety was at risk.

27. The Tribunal accepts that the applicant was not involved in politics when he lived in Bangladesh. The Tribunal does not accept that any of his family members are supporters or members of the BNP. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal does not accept that he will be imputed with a political opinion because his parents do not support the ruling party.

28. The Tribunal does not accept that in 2010 one of his brothers, or alternatively [more] of his brothers, and his [relative] were attacked and his family was threatened that they would destroy him.

29. The Tribunal accepts that the applicant’s father and [relatives] inherited some land which they leased to a neighbour. The Tribunal accepts that they are involved in a dispute with their neighbour over the land. The Tribunal does not accept that this dispute has been politicised. The Tribunal does not accept that a case has been filed against his family in relation to the dispute over the land. It follows that the Tribunal does not accept that a case will be filed against him because he is part of the family or his name could be added to an existing case. The Tribunal is not satisfied, on the evidence before it, that the applicant is at risk of serious harm or significant harm because of this dispute over the land if he returns to Bangladesh now or in the reasonably foreseeable future.

30. The Tribunal is not satisfied, on the evidence before it, that the applicant is at risk of being arrested, imprisoned and false cases being filed against him by the Police. The Tribunal is not satisfied, on the evidence before it, that the applicant is at risk of being targeted by the Police because he is a new arrival and because they will be able to obtain money from him as he has lived overseas. The Tribunal is not satisfied, on the evidence before it, that the applicant is at risk of being targeted by the Police on suspicion that he is related to Islamic extremist groups.

31. The Tribunal accepts that the applicant does not wish to return to Bangladesh and that he would prefer to live in Australia.  

32. 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. 

33. 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 actual or imputed political opinion or any other Refugee 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 Refugee Convention reason. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

34. The Tribunal has considered the applicant’s claims under complementary protection. 

1. 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.

2. 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

3. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.

4. 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

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

Linda Symons

         

Member