1511268 (Refugee)

1511268 (Refugee) [2018] AATA 4006 (21 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1511268
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Roslyn Smidt
DATE:21 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

STATEMENT MADE ON 21 AUGUST 2018 AT 4:30PM
CATCHWORDS
REFUGEE – Protection visa – Bangladesh – race – ethnic Santal – religion – Christian – land resumption – employment – kidnapping and ransom – threats of killing by Jamat-i-Islam Party (JI) – loans for repaying extortion – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 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 on 23 July 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a citizen of Bangladesh. He applied for the visa on 19 December 2014. The delegate refused to grant the visa because he found that his central claims lacked credibility.
CRITERIA FOR A PROTECTION VISA
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, he or she 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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a) of the Act. In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b) of the Act.
Under s.5J(1) of the Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA of the Act, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration (the Department) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and 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.
BACKGROUND
The applicant is [an age]-year-old man from Rajshahi Province in Bangladesh. He is a Christian and claims to belong to the Santal ethnic group. He married in 2007 and has [number] children. His wife is not a Santal. She currently works as [an occupation 1]. His wife and children currently reside with members of his wife’s family in Dhaka. His father is [an occupation 2] and works for a church in Rajashahi City. He resides in Rajashahi City with the applicant’s mother. The applicant’s brother lives in Dhaka and works for [an agency].
The applicant completed [his schooling] at [a specified school] in [year]. Between [specified years] he studied for [a theological course] at [a] College in Dhaka by correspondence. After [year] he worked for [an agency] near his home in Rajshahi Province for about a year. From 2004 until 2014 he was employed as co-ordinator of an organisation called [Agency 1] which is based in Dhaka but operates throughout Bangladesh. He had previously been involved with this group when he was a student. When he commenced this work he earned about half of the normal salary for comparable work and his parents provided additional support. After he married his salary was increased, but was still insufficient to adequately support his family, and his parents continued to supplement his income until he left for Australia.
The applicant travelled to [different countries in specified years]. All of these trips were to attend [Christian] Conferences. He obtained a visa to attend a [Christian] Conference in Australia [in] September 2014 and arrived in Australia on 27 November 2014. He attended the conference, but is no longer in contact with any attendees from Australia. He attends [denomination] church in Australia and also goes to Bible studies about once every three months. He has also joined a Bengali Christian group.
SUMMARY OF THE APPLICANT’S CLAIMS
The applicant claims that he is at risk of serious or significant harm if he returns to Bangladesh because he is Christian from the Santal ethnic group. He claims that Santal people face discrimination in a range of areas including employment. He also claims that in 2009 members of Jamat-i-Islam Party (JI) attempted to take his family’s home and land in [Village 1] where they lived in order to build a mosque. His family refused and sometime later JI kidnapped him, his wife and child. They were released a week later after they promised to pay the group [an amount] in Bangladesh currency ([amount] at current exchange rates). He managed to pay some of this money by taking out loans, but was not able to pay the entire amount. Sometime after he was released he went to live in Dhaka where he continued to face pressure to pay the money promised and was abused on several occasions. His parents remain in Rajshahi and his father and brother have also been harassed and abused because the money has not been paid.
COUNTRY INFORMATION
The following information is intended to provide a context for the applicant’s claims. Unless otherwise stated it is based on information in DFAT Country Information Report, Bangladesh, dated 2 February 2018.
Political power in Bangladesh moves between the Bangladesh National Party (BNP) (more conservative, anti-India, urban-based and more accommodating of political Islam) and the Awami League (AL) (broadly liberal, secular, rural-based and pro-Indian). Both parties have shown a willingness to compromise principle for political expediency in the past. National elections were held in 2014. The BNP boycotted the election, leading to a landslide victory for the AL, which won 234 seats (153 of which were uncontested). The Jatiya Party took 34 seats and independents 13, while the remaining 19 elected seats were divided between several minor parties.
Jamaat-e-Islami (JI) is the largest Islamist party in Bangladesh, with historical strongholds in Rajshahi (northern Bangladesh) and Chittagong. It is committed to the creation of an Islamic state. In August 2013, the High Court deregistered JI as a political party because it judged that provisions in JI’s charter were inconsistent with the Constitution. JI has periodically held major strikes and violent demonstrations across the country, which have resulted in numerous deaths (mainly at the hands of security forces). Its student wing has a notorious reputation for violence. Government practices under the AL, including the arrest of thousands of members in counter-terrorism operations and the execution of five leaders for war crimes, have severely restricted the JI’s ability to conduct activities on a day-to-day basis.
DFAT’s report contains no specific information on Santal people or the situation in Rajshahi. However, it assesses that indigenous people in the Chittagong Hills located on opposite side of the country face a moderate risk of official discrimination, including lack of access to justice in cases of land appropriation or physical violence and face a moderate risk of societal discrimination in the form of land appropriation and physical violence by settlers.
The US Department of State Country Report on Human Rights states that Santals number about 500,000 people in Bangladesh and are mostly Christian. It notes that Indigenous communities had reported the loss of land to Bengali Muslims in 2017, and the government land commission, designed to investigate and return all illegally acquired land, had not resolved any disputes during the year. It also reports that a superintendent of police had lost his position for failing to cooperate in an inquiry into arson attacks on Santal people and that a police probe had identified two law enforcement officers as responsible for these fires.
Evidence provided by the applicant sets out in detail the history of oppression faced by Santals in Bangladesh, including loss of land, culture and language, discrimination and impoverishment. It also notes the lack of official support or assistance for Santal and other indigenous groups in Bangladesh.
DFAT assesses that Christians face a low risk of societal violence in the form of occasional localised incidents. These are likely to take place in the context of other events, such as communal disputes over land ownership and usage in the Chittagong Hill Tracts. Like other minorities, Christians may face a risk of sporadic attacks from Islamist militants.
CONSIDERATION OF CLAIMS AND EVIDENCE
Psychologist report
Following the hearing the applicant provided a report from a psychologist dated [in] August 2018. According to the report the applicant was rational and had no real difficulty answering questions. It goes on to record the applicant’s background and his reasons for fearing to return to Bangladesh. It is broadly consistent with the evidence he provided to the Tribunal. It states that the main source of stressors to the applicant appear to be related to his residency application which is under review and his fear of returning home if his application is rejected.
Claims relating to threats from Jamaat I Islam
According to a statement[1] received by the Department on 22 December 2014, local JI members demanded that the applicant’s family hand over their land and threatened to kidnap him and his family if they refused. After this he and his family ran away to Rajshahi where their first child was born ([date]). They hid from place to place, but despite this they were caught by JI who held them for seven days. The applicant told them that the land they wanted belonged to his father who still lived in [Village 1]. The leader of the group told him that they had attacked his family home, but there was nobody in the house. This was the first time he had heard that his parents and brother had run away. He begged to be released and the group agreed to let him go temporarily if he agreed to pay [amount] in Bangladeshi currency. He told them he would need time to raise that amount. They finally agreed and told him that he must remain in his village and arrange to pay the money or all of his family would be killed.
[1] This statement appears to have been prepared by someone with limited English and some parts are difficult to understand.
After his release the applicant located his parents and he and his father went to the church in Rajshahi. The Church arranged for the applicant to work with [Agency 1] in Dhaka. His father returned to [Village 1]. The applicant obtained housing loans with the help of Christian friends and managed to pay half of the amount demanded (about [amount]). Because of the time it was taking to pay the money, JI was not happy with his family and kept pushing and threatening him. Then he had the opportunity to come to Australia and left the country.
When JI learned the applicant had left Bangladesh they went to his village and broke into his family home, calling his name and threatening to kill him. His parents were not there at the time. His brother and wife ran away from [Village 1].
The applicant said that JI thought that he had a lot of money and he had cheated them and they were angry that he had been blessed by Christian people and threatened to kill him. Despite not being in power political JI and associated groups remain powerful and would carry out this threat if he returned to Bangladesh.
The applicant said that he did not know where they or other members of his family were. He also said that JI members had located his office, so he could not return to Bangladesh as they were threatening to kill him.
The applicant was interviewed by a delegate of the Minister for Immigration on 13 July 2015. He said that all of the people who lived in his village were Santals. His family had land and a house in [Village 1]. The house had been ‘broken’, but his parents had begun building a new house before he left for Australia. When asked if JI had demanded land from anyone else in [Village 1] he said that other people had been threatened but nobody’s land had been taken.
The applicant said that he had been living between his village and Rajshahi City when he and his family were kidnapped in in 2011. They were picked up in [Village 1] and driven about an hour to a building where they were held for a week. His captors told him that they wanted his parents’ house and land to build a mosque so that they could convert the Santal people to Islam. They said that his family should gift the land to the JI. After a week they demanded [amount] in order to secure his release. The applicant said that this was not possible, but he said he would give them what he could. After this they released him and his family.
The applicant said that he had returned to his home in [Village 1] after which he went to Rajshahi. He sent his wife and child to stay with her parents in [another town] and he remained in Rajshahi for about six months. During that time he was frequently threatened and he paid JI a number of small amounts total [amount].
The applicant moved to Dhaka early 2012 and remained there until he left to come to Australia. He stayed in four different houses with relatives of his wife. They had to move from house to house because JI were continuing to demand money from him. During the time he lived in Dhaka he visited his parents in the Rajshahi once every two or three months or so, and visited them 12 to 15 times in total.
The applicant said that during the more than two and a half years he had lived in Dhaka he made several payments to JI, amounting to a total of about [amount]. The last payment was made in mid or late 2012. When asked he confirmed that he had not given JI any money in 2013. The delegate noted that he had previously stated that he obtained money to pay the group from loans. He said that his friends and others had loaned him [amount] and in 2012 he had taken out loans from three credit unions, one for [amount], one for [amount] and another for [amount]. The delegate noted that he had previously stated that his salary was [amount] a month. The applicant said that this was correct and agreed that this was not sufficient to service his loans. He said that he was sometimes able to borrow money from relatives to cover the repayments but sometimes he defaulted on payments.
When asked if JI came looking for him after the last payment in 2012 the applicant said that they sometimes followed him when he visited his parents in Rajshahi. When asked how he knew he was being followed, he said that he did not know whether he was being followed but he thought that this was the case because they had spies everywhere. Later in the interview he was asked if he had been harmed or threatened while living in Dhaka. He said that JI knew where he worked and once or twice a month they would approach him near his work place and ask him when they could expect the next payment. The delegate observed that it appeared that nothing had happened to him for some two years after he stopped paying the JI in 2012. The applicant said that members of the group had weapons. When asked to confirm that he had not been harmed by JI while in Dhaka he said that sometimes they slapped him. When asked if they had done anything else he said that they tried to, but they could not.
When asked if his parents had been harmed while he was in Dhaka the applicant said that men who identified themselves as members of JI had demanded payment from his father and had also asked where he (the applicant) was.
When asked about the claim that JI had attacked his home, the applicant said that this had occurred in February or March 2014. He said that his parents had told him that about the attack. They were in Rajshahi when the attack occurred and the only person living at the house was his [cousin]. The delegate noted that this was at odds with his earlier evidence which stated that his wife and brother had run away from [Village 1] after the attack. He responded that his wife and brother had been visiting at the time of the attack.
When asked if he had concerns for the safety of his wife and [children] when he left for Australia the applicant said that they were currently moving from place to place in Dhaka and rarely went out because something could happen at any time and they were not safe.
The delegate observed that JI had not carried out its threat to take his father’s land and asked why the applicant thought this was the case. He said he did not know, but he believed that they wanted the money and the land. He had avoided problems by promising to pay, but JI could take the land or kill him or members of his family at any time.
The delegate noted that his father had been able to rebuild the family home after it was destroyed in 2014 and observed that this also suggested that JI were not greatly interested in the land. The applicant indicated that JI had tried to stop his father rebuilding, but gave no indication of what this involved. He said that the JI moved very slowly and added that Santal people were being killed and losing their land.
The applicant said that he would be at risk of harm if he returned because JI had contacts throughout the country and would be able to trace him no matter where he went. He said that he did not know how they would find out his address, but they had traced him in Dhaka and would do so again if he returned.

The delegate accepted that the applicant was a member of the Santal indigenous group and a Christian, but found the claim that JI had attempted to take his family land, kidnapped him and his family and demanded that he pay [amount] implausible and lacking in credibility. In reaching this conclusion he observed that while it was plausible that the applicant and his family were kidnapped in order to pressure his family to give up the land, it was not plausible that he was released in return for a promise of future payment of ransom. He also observed that it was difficult to understand why JI had not simply taken the family land by force. He noted that (according to the applicant’s evidence during the interview) he had repaid only a small amount of the money demanded and had paid nothing for about two years before leaving Bangladesh, but while he continued to be threatened JI took no further action against him. He also noted that the applicant’s parents had continued to reside in Rajshahi and [Village 1] without experiencing problems and observed that the applicant’s numerous visits to his parents during the time he lived in Bangladesh indicated that he was not fearful of harm in Rajshahi. With regard to the claimed destruction of the applicant’s family home, he found it unlikely that the family would have been able to rebuild on the same land if the house had been destroyed by a group which wished to take over the site. Finally he found the fact that the applicant had failed to leave Bangladesh until some three months after he obtained his Australia visa suggested that he was not fearful of harm in his homeland.
On 13 July 2018 the applicant provided a revised version of the statement provided on 22 December 2014. It is slightly more coherent than the earlier statement and generally provides the same information. However, it appears to suggest that the applicant and his children were present when his home was attacked and ransacked by JI. The applicant’s representative also provided several lengthy documents on the situation of Santals in Bangladesh.
The applicant attended a hearing of the Tribunal on 30 July 2018. He confirmed that the people in his village were of Santal ethnicity. He said that about 90 per cent of them are Christians and about 10 per cent are Muslim. He said that there was a church in [Village 1], but no mosque.
The applicant said that prior to 2012 his family (wife, child, parents and brother) lived together in a house in [Village 1]. His father worked as [an occupation 2] for a church in Rajshahi City and travelled to work every day. He himself travelled for work, but he spent most of his time at home in [Village 1].
The applicant said that his wife and children currently live with her family in Dhaka. His wife supports the family by working as [an occupation 1] in [a specified industry]. His children attend a [Christian] school. They attend that school because it provides a good education.
The applicant confirmed that members of JI had wanted land belonging to his father, which included the family home, to build a mosque and began to pressure his family for the land in 2009. He said that he knew that the men who demanded the land were from JI because they introduced themselves as member of the party. He said he was not sure whether the group had attempted to acquire or take anyone else’s land, but then added that someone else’s paddy field had been taken by the group. After some confused discussion it was established that someone’s paddy field had been taken by Muslims, and the former owner had told the applicant that they were Muslims from JI. However, they were not the same people who were interested in his family land.
The applicant said that JI had initially offered to buy his family land, but when the family refused they threatened to kidnap him and his family. One day in 2011 they carried out this threat. His parents were not at home at the time. His brother was in the house but in a different room and was not taken. He was held for seven days during which he was initially pressured to give the land to JI. He explained that the land belonged to his father, but they continued to pressure him. He offered them money if they would release him and eventually they agreed to release him in exchange for [amount]. Later in the hearing it was established that the land in question was worth about amount]. When asked why the family had not considered selling the land to avoid ongoing problems he said that it was important to have a family home in his village.
The applicant said that after they were released he and his family were taken back to [Village 1]. His parents were still in the village. They told him that they had gone to the police after he was kidnapped, but the police had refused to take the case. He did not know why the police had refused to help. He was able to borrow about [amount] from family and some friends and two weeks after his release he made the first payment to JI.
About two weeks after making this payment, the applicant and his entire family went to live in Rajshahi City. He said that this was in 2012. He had sometimes visited [Village 1] for a few days, but he never returned to live there. Members of JI would come to the house and demand money from him during these visits. He told them he would pay later, but did not give them any money.
The applicant said that after 2012 a female cousin lived in the house in [Village 1]. I observed that it seemed somewhat unlikely that a woman would have gone to live alone in the house as it appeared that would have been dangerous. He said that his aunt who also lived in [Village 1] stayed in the house at night. He also said that his relatives were prepared to do this because did not want his family to lose the land and wanted them to remain in [Village 1].
The applicant said that after moving to Rajshahi City he sent his wife to live with her family. He remained in Rajshahi with his parents for another six months. JI continued to ask for money during this time and he kept promising to pay, but he did not give them any more money. He was not harmed during that period. He moved to Dhaka about six months later (in mid-2012). His parents continued to live in Rajshahi.
At the beginning of the hearing the applicant said that while he lived in Dhaka people from JI came and asked him for money two or three times a month. Sometimes he gave them small amounts because if he did not they would threaten to kill him. Sometimes he would tell them that he would pay them the following week. He went to the police, but they did not help him because he could not name the people threatening him. When asked if he had faced any other problems in Dhaka he said that JI members had assaulted him six or seven times near his office. He did not report these attacks to the police or to the people at [Agency 1] where he worked because JI warned him not to tell anyone and he was afraid.
Later in the hearing the applicant said that he had paid JI about [amount] in late 2012 or early 2013. He claimed that he obtained this money by taking out a housing loan with [a] Housing Society, which he said was a private profit making institution which charged interest. I observed that while I was not familiar with banking practices in Bangladesh it seemed unlikely that he would have been given a housing loan and been able to use it to pay JI rather than buy a house, as I understood some security was generally required for such loans. He said that someone had agreed to be his guarantor. When asked for further information, he said that people from the housing society had acted as guarantors. I advised him that I had difficulty accepting that any financial institution would guarantee repayment of loans in that manner. He maintained that his evidence was correct.
When asked if he had paid anything further after early 2013 the applicant said that he had paid a further [amount] which he had borrowed from friends. When asked how he funded his travel to Australia he said that he borrowed money from an uncle.
I observed that the applicant appeared to have given differing accounts of the amounts of money he had paid to JI and when this occurred. For example, I noted that according to his initial statement he claimed that he had repaid half of the money demanded. He said that he had been confused when making the calculations when he prepared that statement. I also noted that he had previously spoken about getting a loan from a Christian Credit Union but had told me he had a loan from the [named] Credit Union. He said that this was one of the financial institutions which had given him loans. He provided copies of what appear to be three bank accounts: one is from the [Housing] Society and according to the applicant related to a loan of [amount]; one from [an organisation], which according to the applicant related to a loan of [amount] taken out in May 2013 and one from [a Christian] Credit [Union], which apparently relates to a loan of [amount] taken out in 2013. I noted that even if I accepted the documents at face value they proved only that he had borrowed money from three different financial institutions and said nothing about how the money was used. The applicant maintained that his claims were true.
The applicant confirmed that he had visited his family in Rajshahi after moving to Dhaka but he had not experienced any problems during these visits.
The applicant said that his father had been assaulted in the street in Rajshahi by the members of JI who wanted to take his families land after he left for Dhaka (in mid-2012). He said that these people also asked for his (the applicant’s) current whereabouts. I observed that it appeared that JI knew where he was, as he claimed that they were harassing him in Dhaka during that time. He responded that the men wanted money.
The applicant said that his brother had moved to Dhaka in late 2013 to work for [an agency]. He said that his brother had not experienced any problems since moving to Dhaka.
I asked the applicant if he or any member of his family had faced any other problems in Bangladesh. He said that JI had attacked the family home in [Village 1]. His cousin was living at the house at that time and his wife was visiting. The attackers broke the door and made a mess inside the house. I noted that he had previously indicated that the house was destroyed during the attack and had to be rebuilt. He said that when the door was broken the building collapsed because it was made of mud. I noted that he had previously given differing accounts of who was present when the house was attacked, first claiming that his parents and brother had fled after the house was attacked and later saying that his wife and brother had fled the house when it was attacked. He said that his entire family was visiting the house when it was attacked in 2014.
I asked the applicant if his family had faced any problems in Bangladesh after 2014. He said that his family, including his parents and brother, continued to be threatened by JI. I noted that he had previously stated that his brother had not experienced any problems since moving to Dhaka in 2013. He said that he had been referring to a different time period.
I observed that it appeared that the applicant was not claiming that the people who had been threatening and harassing his family happened to be members of JI, but that JI as a group were responsible for the problems they had faced. He said that this was correct and added that JI had a presence throughout Bangladesh and would be able to locate him wherever he went. I advised him that while I was aware that JI had committed abuses against Christians and accepted that individual members of the party might be involved in extortion I was not aware of any evidence which suggested that JI as a group was involved in taking land to build mosques. He maintained that his claims were true and said that JI wanted to build mosques in order to convert Christians to Islam.
The applicant’s representative noted that JI had been in coalition with the BNP when it formed government in about 2001 and said that during that time they formed a number of extremist groups which are still in existence. I observed that the AL was currently in power and it was my understanding that they were strongly opposed to JI. He agreed that this was correct.
Consideration of claims relating to threats from JI
For the following reasons I did not find the applicant to be a credible or a truthful witness in relation to his claims regarding threats and harassment from JI.
In the first place, there are a number of serious inconsistencies in the evidence provided by the applicant in relation to these claims.
The applicant has consistently claimed that his family home in [Village 1] was attacked and damaged or destroyed by JI. However, he had given differing accounts of when this occurred and who was present at the time. In his initial statement he indicated that the house was attacked while he was in captivity and claimed that his parents and brother had fled at about that time. He also claimed that the house was attacked in early 2014, forcing his brother and wife to flee. He said that his parents were not present during this attack. During his interview with the delegate he said that the house was attacked in 2014 and that his cousin was the only person living there at the time. However, when reminded of his earlier evidence that his brother and wife were present during the attack he said that they had been visiting at the time. The amended statement dated 13 July 2013 repeated the claim that his parents and brother had been forced to flee their home when he was in captivity and that his family home was ransacked around the time he left for Australia. His parents were not present, but he (the applicant), his brother and his wife and children all ran away from the village. During the hearing he said that his home was attacked in 2014 while his cousin was living there and his wife was visiting. I noted that he had previously spoken about an attack on the house which caused his parents and brother to flee, and that he had also claimed that his brother and wife were at the house when he was attacked in 2014. He said that the only attack occurred in 2014 and his entire family was visiting when the attack occurred.
The applicant has also provided differing accounts of the damage sustained by his family home during these alleged attacks. During his interview with the delegate the applicant said that his home in [Village 1] had been destroyed in 2014 and his parents were building a new house. At hearing he initially stated that the attackers had broken the door of the house and made a mess. When I pointed out that he previously indicated that the house was destroyed during the attack and had to be rebuilt he said that when the door was broken the building collapsed.
I acknowledge that the claimed attack or attacks on the applicant’s village home occurred some years ago and he was not present at the time, and that it is not uncommon for honest witnesses to provide evidence which is somewhat confused and differs in some details. However, the inconsistencies in the applicant’s evidence are significant and I do not accept that they are the result of confusion or the passage of time. I also note that he changed his evidence during his interview with the delegate when reminded of his earlier claims, which I find to be a further indication that he has not provided honest or accurate evidence regarding the claimed attacks on his family home. And as discussed below this is not the only problem with his evidence. I do not accept that the applicant’s home was attacked by JI or anyone else in 2011 or 2014. I find that he concocted these claims to support his claim for protection in Australia.
The applicant has consistently claimed that he was released by kidnappers in late 2011 after promising to pay them the equivalent of [amount range] dollars. However, he has given differing accounts of the how much he paid before leaving the country. In his initial statement and the amended version provided to the Tribunal in February 2018, he said that he had repaid about half of the amount by the time he left Bangladesh (about [amount]). During his interview with the delegate he said that he had repaid [amount] about two weeks after he was released and about another [amount] in 2012, but had not made any payments in 2013, making a total of about [amount]. At the hearing he said that he had been confused when he prepared the first statement and also stated that he had made further payments to the group in 2013. I do not accept that a reasonably well-educated man such as the applicant would have been confused about whether he had paid about half of the money demanded or only about 20 per cent. I also note that he repeated the claim that he had repaid half of the money in the statement provided in February 2018. I find these discrepancies in the applicant’s evidence a further indication that he has not provided honest evidence regarding the problems he faced in Bangladesh.
The applicant has given differing accounts of the harm which he and his father suffered following his release by kidnappers in late 2011. In his initial statement and the amended version provided to the Tribunal in February 2018, he said that they had pushed his family to pay the money threatened to kill them, but did not claim that anyone in his family had been physically harmed. He told the delegate that members of the group had visited him on numerous occasions in Dhaka asking him to pay the money, but said nothing about suffering any physical harm until asked to confirm that he had not been harmed, when he said that he had sometimes been slapped. He said that members of the group had also demanded money from his father, but did not claim that his father had been physically harmed. During the hearing the applicant claimed that he had been assaulted six or seven times when he lived Dhaka, and that his father had also been assaulted during that time. If the applicant had been assaulted six or seven times while living in Dhaka, and his father had also been assaulted during this time, I believe that he would have mentioned these in his first statement and repeated these claims without prompting during his interview with the delegate. However, he failed to do so and in these circumstances and in light of the other issues with his credibility mentioned elsewhere in this decision, I do not accept that he or his father were assaulted by JI or anyone else as a result of demands for their land or extortion demands. I find this another example of the applicant manufacturing claims to support his application.
The applicant has given differing accounts of the problems experience by his brother. At the beginning of the hearing he said that his brother had not experienced any problems since moving to Dhaka in 2013. Later in the hearing he said that his brother had been threatened by JI in 2014 and claimed that he had been confused about the period I was referring to when I first asked him about his brother’s situation. I do not accept this explanation. He clearly stated his brother had not faced any problems since moving to Dhaka in 2013. If his brother had been threatened in 2014 I believe he would have raised it when his brother’s circumstances were discussed at the beginning of the hearing. I do not accept that the applicant’s brother was threatened by JI or anyone else in 2014 in relation to demands that his family provide them with land and money.
Secondly, I found much of the applicant’s evidence regarding his claimed problems with JI confused and unconvincing and some of it implausible.
I acknowledge that extremist or opportunist Muslim groups have taken or attempted to take land from members of the Santal ethnic group by force. I also acknowledge that JI has a history of violence against non-Muslims. However, while it is plausible that members of JI have been involved in such land grabs, I am unaware of any evidence which suggests that JI as an institution is or ever was involved in these activities or that JI or anyone else involved in land grabs would pursue someone who had refused to hand over their land after they fled the local area rather than simply occupy the land. According to a paper provided by the applicant,[2] members of the majority community use tactics such as dishonest documentation to obtain land from members of minority groups. They often resort to threats, beatings and murder if their demands are not met. The paper suggests that it is mostly the Santals’ Muslim neighbours, often assisted by local officials, who are involved in these land grabs. Other articles provided by the applicant also report on attacks on Santals by the local people supported by local officials. In these circumstances, I find the claim that JI demanded the applicant’s land, but released him from captivity without obtaining title to the land or payment of any money demanded and that, apart from an attack on the house in question some three or four years after their initial demand, took no further action to take the land and instead, pursued him to Dhaka and continued to harass him for money until he departed for Australia some two and a half years later, far-fetched and implausible. In reaching this conclusion I have noted the applicant’s evidence that his female cousin occupied the house after his family left, but I do not accept that this would have deterred a group determined to take it.
[2] Indigenous people’s access to land in the northern belt of Bangladesh: A study of the Santal Community. PHD Thesis of Smritikana Das, University of Tromso, Norway, Spring 2011.

I also found the claim that JI wanted the applicant’s land to build a mosque so they could convert local Christians to Islam, but took so little action to actually take or acquire their land or the land of anyone else in the village, implausible.
I found the applicant’s evidence regarding his ability to obtain money to pay JI after his release from captivity in 2011 implausible. His ability to raise the equivalent of about [amount] from friends and family within two weeks does not sit well with his claim that he is part of a marginalised and oppressed group. More significantly, he claims to have borrowed over [amount] from three different financial institutions in 2012 and 2013 when earning only about [amount] a month. According to the documents he provided these loans had an interest rate of 12 or 18 per cent which would mean that the interest alone would have exceeded his income.
At the hearing the applicant said that he had obtained the loans were housing loans, but he did not use them to buy a house. He also said that nobody provided any guarantee or security for the loans, but the institutions themselves were guarantors. While Christian credit unions may be prepared to be generous in the assistance which they provide to Christians in Bangladesh, I do not accept that any financial institution would loan money in the circumstances or manner claimed by the applicant. I find that the applicant has not provided honest evidence regarding these loans. I do not accept that he was able to obtain unsecured loans to the value of [amount] in order to pay the people who were extorting money from him.
I do not accept that members of JI or anyone else demanded land belonging to the applicant’s family in 2011, or that he, his wife and children were kidnapped in 2011 and released after promising to pay their abductors about [amount] at some time in the future, or that they continued to demand that he pay this money and harassed and abused him and other family members for payment until he left Bangladesh, or that members of JI attacked and damaged or destroyed his family home in [Village 1] in 2014 or at any other time. I find that these claims were all concocted to support his case for protection in Australia.
I also noted the related claims that JI believes that the applicant is rich and cheated the group by not paying the money they demanded or that he was blessed by Christians to be lacking in credibility. However, there is no credible evidence before me which suggests that the applicant is or ever was of adverse interest to JI or anyone else for any reason prior to his departure from Bangladesh and I also reject these claims.
After considering all of the relevant evidence, I am not satisfied that the applicant faces a real chance of experiencing serious or significant harm if he returns to Bangladesh because he or his family have been threatened or harassed by JI or another group in relation to an attempt take land belonging to them or an attempt to extort money from them.
Consideration of claims relating to membership of the Santal indigenous group
In his initial statement to the Department and the revised version provided to the Tribunal in February 2018 the applicant spoke in general terms about the problems faced by Santal people, but apart from the claims set out above, which I do not accept, he provided no evidence which suggested that he himself faced any significant problems in Bangladesh because of his ethnicity.
At the hearing I advised the applicant that I accepted that Santal sometimes faced discrimination, but noted that he had not mentioned any specific discrimination related to his ethnicity apart from the problems with JI and that his evidence regarding his background suggested that he had not faced significant discrimination because of his ethnicity. He said that Santals were isolated and viewed as a different caste and he had faced discrimination because he was a Santal. He said that if he boarded a bus he was not able to sit and he could not buy good vegetables or good clothes. I observed that this suggested serious discrimination and I found it difficult to understand why he had not mentioned these problems previously. He said that this was because he dressed well and had an education, but if he returned to his village or if people identified him as Santal he would face these problems again. I noted that the majority of the people in his village were Santal and it therefore seemed unlikely that he would experience problems if he returned there. He agreed that most of the people in his village were Santal and said that the problems start when someone leaves the village and these problems cannot be avoided. His representative said that he would face problems if he wore his traditional dress.
The psychologists report provided following the hearing states the applicant reported he was always identified as a member of a tribal group because of his last name. He claimed that he faced discrimination during childhood, for example being given different cups and plates when he ate at a restaurant and feeling ostracised at school.
I have some doubts about the applicant’s claim to be a Santal as his education and ability to progress appears to be somewhat unusual for Santal, and images of Santal which I located online appear to suggest that they generally have darker complexions than him. Nevertheless, for the purposes of this application I accept that he is a Santal. However, on the evidence before me I am not satisfied that he suffered serious discrimination because of his ethnicity prior to departing Bangladesh.
In the first place, if he had been ostracised and faced serious discrimination such as being unable to sit on buses or buy good clothes or vegetables as claimed at the hearing I believe that he would have mentioned these problems prior to the hearing. While it may be that the applicant has faced some degree of discrimination in the past, I do not accept that he faced serious discrimination or serious or significant harm in Bangladesh because of his ethnicity.
Secondly, I found the applicant evidence at the hearing regarding the problems he faced because of his ethnicity confused and unconvincing. He first claimed that he was isolated and faced humiliating discrimination such as being unable to sit on a bus or buy good clothes, but when I noted that he had failed to mention these problems prior to the hearing he said that he no longer faced these problems because he dressed well but he would face problems if he returned to the village. When I pointed out that almost everyone in his village was Santal he said that the problems started after he left the village. At the end of the hearing his representative submitted that the applicant would be at risk of serious or significant harm if he wore traditional dress on return to Bangladesh. This claim was not mentioned prior to the hearing and while I acknowledge that Santals who live more traditional lives appear to face more problems than people such as the applicant, I am unaware of any evidence which suggests that Santals face a real chance of experiencing serious or significant harm merely for wearing their traditional clothing. I also note that his statement to the psychologist that he was always recognised because of his name is at odds with his evidence at the hearing that he was not recognised as Santal in Dhaka.
Thirdly, according to the applicant he, his father and his brother are well educated and work in areas suitable to their qualifications in Rajshahi and Dhaka. Their ability to obtain an education and employment indicates that they have not faced serious discrimination in these areas. Nor is there any credible evidence before me which suggests that they faced serious discrimination in other areas or that they were subjected to serious or significant harm because of their ethnicity prior to or following the applicant’s departure from Bangladesh.
After considering all of the relevant evidence, while I acknowledge that many Santal face discrimination in a number of areas, I do not accept that the applicant faced serious or significant harm prior to his departure from Bangladesh because of his ethnicity or that there is a real chance that he would experience serious or significant harm within the reasonably foreseeable future because of his ethnicity if he returned to Bangladesh.
Claims relating to the applicant’s Christian religion
I accept that the applicant is a Christian and that he comes from a Christian family. According to his evidence at the hearing he completed a [course] in theology and he worked for [Agency 1] for many years. This involved travelling to different areas and gathering church members together to talk about the Bible. His father also worked for the church as [an occupation 2]. His wife is also a Christian and his children currently attend a Christian school in Bangladesh. However, apart from the claims relating to harassment and attack by JI, which I do not accept, the applicant did not claim to have faced any other threats or harm because of his religion in his discussions with the delegate or at the hearing.
As noted above DFAT assesses that Christians face a low risk of societal violence, mostly related to occasional communal disputes over land and also face a risk of sporadic attacks from Islamist militants. In these circumstances and in the absence of any credible evidence that the applicant or any other member of his family is or was of adverse interest to anyone because of their religion, I am not satisfied that that the applicant faces a real chance of suffering serious or significant harm if he returns to Bangladesh because of his Christian religion.
In reaching this conclusion I have considered the letter from [a council] of [his denomination] dated [in] October 2014, which states that the applicant had been engaged in evangelical work in Rajshahi and had been threatened several times by JI because of this. It provides no further information on the reasons for or nature of these threats. This information is somewhat at odds with the evidence given by the applicant at the hearing when he said that his work with [Agency 1] involved speaking to people who were already Christian and said nothing about receiving threats from JI because of his work with the Church. In any event, while it is plausible that the applicant may have been threatened if he was involved in evangelising to non-Christians, there is no suggestion that he was involved in evangelising to non-Christians after he moved to Dhaka or that he has any intention of evangelising to non-Christians if he returns to Bangladesh, and I do not accept that there is a real chance that he will suffer serious or significant harm on return to Bangladesh for evangelising to non-Christians.
IS THE APPLICANT A REFUGEE?
After considering the applicant’s claims singly and cumulatively, I am not satisfied that he faces a real chance of suffering serious harm amounting to persecution for any of the reasons set out in s.5J(1) of the Act. Therefore I am not satisfied that he has a well-founded fear of persecution now or in the reasonably foreseeable future.
DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERIA?
After considering the applicant’s claims singly and cumulatively, I am not satisfied that he faces a real risk of suffering significant harm on return to Bangladesh. Therefore, I am 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.
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 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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Roslyn Smidt
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 4006

21 August 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing