1511530 (Refugee)

[2017] AATA 1009

1511530 (Refugee) [2017] AATA 1009 (6 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511530

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:James Silva

DATE:6 June 2017

PLACE OF DECISION:  Sydney

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

Statement made on 06 June 2017 at 5:39pm

CATCHWORDS

Refugee – Protection visa – Bangladesh – Political opinion – Bangladesh Nationalist Party member – Threats by Awami League members – False charges

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K-LA, 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. The applicant is a man in his mid-[age], a Bangladeshi national.

2. The applicant most recently arrived in Australia in early November 2014, as the holder of a [temporary] visa.

3. He applied for a Protection visa [in] January 2015. [In] July 2015, the delegate of the Minister for Immigration (the delegate) refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

4. This is an application for review of that decision. The applicant appeared before the Tribunal on 18 April 2017.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. The relevant law is summarised in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

7. The applicant claims to a supporter of the opposition Bangladesh Nationalist Party (BNP) who operated a successful retail business. Members and supporters of the ruling Awami League (AL) tried to extort money from him. When he refused, they arranged for false criminal charges to be brought against him. The applicant fears that the Bangladesh authorities will arrest him on his return to Bangladesh (most likely at the airport), and imprison him and torture him, at the behest of his political enemies. He implicitly also claims that AL cadres will continue to target him, due to his support for the BNP and his refusal to make ‘donations’.  

   Background

8. The applicant is a [age] year old man from [Sunamganj], in north-western Bangladesh. He speaks Bengali (Bangla) and English, and identifies as a Sunni Muslim.

9. The applicant attended a madrassa (religious school) in from [year] to [year]. From [year] to [year], he went to [a] College in [Town 1][1]. From September [year] to June [year], he attended [a] College in the capital city, where he did a [degree] in [subject]. From August to November [year], he went to [a] University, in [Dhaka] City.

   [1] [Information deleted].

10. According to his written claims, the applicant was unable to find work after completing his studies. In 2008, he started [another] degree at [another] University, [Town 1].

11. The applicant worked part-time [as] an [occupation] during his [course], and continued this for six months, through to late 2009. He was dissatisfied with the salary, and decided to start his own business around October 2010 – [name of business] – [description of business]. His brothers in [Country 1] helped him with funding. The business thrived, and the applicant had a good income.

12. The applicant married in October 2009. His wife, in her early [age], remains in Bangladesh with the couple’s [children], [ages] years old. The applicant contacts them daily by telephone. The applicant’s wife lives in [Town 1]. The applicant’s brothers own [a] residential building in [Town 1], and their families (as well as the applicant’s wife and children) live in four of the apartments. The other [apartments] are rented out.

13. The applicant said that his widowed father is now retired. He previously owned a small [shop], and currently draws income from the family’s [property] which is leased [out]. The family lived in [Town 1], but his father has now returned to their home village.

14. The applicant said that he has [siblings]. [A few] brothers live in [Country 1]. The first [few] went there when the applicant was young. The brothers jointly own and operate a shop in [Country 1],

15. The applicant brought to the hearing both his current and previous passports. His first Bangladesh passport was issued in [2008]. It has no visa stamps or other marks, and the applicant confirmed that he had never used it. The applicant’s current passport was issued [in] 2013, and is valid for five years. The visa and entry/exit stamps, together with the applicant’s advice on his protection visa application, indicate the following travel:

    §  Holiday in [Country 2] and [another country] ([September] 2013)

    §  Holiday in [Country 2] ([October] to [November] 2013) and [Country 3] ([November] 2013), en route to Australia

    §  First visit to Australia: [November] 2013 (following brief stays in [Country 2] and [Country 3])

    §  Second visit to Australia: [March] 2014 to [April] 2014

    §  Third arrival in Australia: [November] 2014

16. The Tribunal asked the applicant if he had ever contemplated travelling to [Country 1], where his brothers live. The applicant replied that [Country 1] was no longer offering visas for Bangladeshis.

17. The applicant is currently living in [Australia], where he is doing work unrelated to his protection claims.

    Evidence

18. The evidence before the Tribunal includes the following material (relevant at least in some part): -

    §The protection visa application lodged [in] January 2015.

    §The applicant attached photocopies of: (a) his first Bangladesh passport, issued in [2008], which appears not to have been used for travel abroad; and (b) his current passport, issued [in] 2013 and valid for five years.

    §Personal documents submitted to the Department.

    -Family birth certificates, the applicant’s national ID card, and a copy of deed of marriage, Nikah nama,(in Bengali with English translation),  

    -Academic certificates: - [Town 1][Details deleted].

    -Income tax certificate

    -Renewal of a trade licence, dated [September] 2013, for the applicant’s [business]

    §Documents relating to the applicant’s protection claims (copies of purported Bengali originals, with English translations):

    -Certificate from the BNP, [name] Branch, [Town 1], dated [March] 2015, certifying that the applicant participated in various BNP programs and was subject to extortion demands and death threats

    -Letter from the applicant’s lawyer, dated [March] 2015, advising him of the arrest warrant, and of the AL’s political conspiracy to pursue him and other BNP figures

    §Purported court and police documents:

    -First Information Report, signed [in] May 2014

    -Petition of complaint, signed [in] May 2014

    -Charge Sheet, dated [October] 2014

    -Order of the Chief Metropolitan Magistrate’s Court, [Town 1], dated [January] 2015

    -Arrest warrant, dated [January] 2015

    §The applicant attended a Department interview [in] July 2015, a recording of which is on the Department file.

    §The delegate’s decision record (‘Protection Visa assessment’) dated [July] 2015.

    §The Tribunal received an application for review on 24 August 2015. It contains no attachments or new information.

19. The Tribunal has had regard to country information included in the delegate’s decision record, and more recent country information, in particular the Department of Foreign Affairs and Trade (DFAT) Country Information Report – Bangladesh, dated 5 July 2016.

20. As noted above, the applicant appeared before the Tribunal on 18 April 2017, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant is not represented in this matter.

    Receiving country

21. The applicant claims that he is a Bangladesh national, and has provided a Bangladesh passport and numerous other documents (such as academic records) that support this claim. He speaks Bengali (Bangla), Bangladesh’s national language, and showed a thorough familiarity with that country. The Tribunal is satisfied, for the purpose of this decision, that the applicant is a Bangladesh national. Bangladesh is therefore the receiving country for the purpose of assessing his protection claims.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility

22. The Tribunal has taken into account into account the AAT Migration and Refugee Division’s Guidelines on the Assessment of Credibility both in the conduct of the hearing and in the assessment below. These state, in part:

    … The tribunal considers all the material before it and is not restricted to claims and evidence considered by the primary decision-maker. If the review applicant raises new claims or presents material for the first time to the tribunal, the tribunal will consider the credibility of what has been provided, including any reasons for why it was not provided earlier in the application process. There may be good reasons why new information or claims are presented by applicants at a later stage in the application process. These reasons may include stress, anxiety, inadequate immigration advice and uncertainty about the relevance of certain information to an applicant’s claims [footnotes omitted].

23. The Tribunal has extensive concerns about the truthfulness of the applicant’s claims. Although his claims are broadly consistent with general country information about Bangladesh – including its political climate, extortion and police corruption – there are strong indicators that he was not speaking from lived personal experience. On many occasions, he was unable to provide meaningful detail or context to his claims, to substantiate his claims, or to reconcile his conduct (including his movements within Bangladesh and timing of his travel to Australia) with his claimed fear of persecution (or significant harm). The Tribunal’s more detailed consideration of these claims and evidence follows below.

    Assessment and Findings

    The applicant’s support for the BNP

24. The applicant claims to have become involved in politics in 2010. According to his written claims, he was ‘just a supporter’ of the BNP.

25. At hearing, the applicant said that his family has no political background, although his father is a conservative person who supports the Jamaat-e-Islami. His brothers have limited education, and followed their father’s lead.

26. The applicant said that he personally had no prior interest in politics. Rather, he had concentrated on his studies, and had hoped to get a position with the Bangladesh Civil Service (BCS). The applicant said that, during the job interview (the third and final stage of the interview process), he was asked about his political views, and he was not successful. General country information indicates that the BSC Examination is highly competitive, as it leads to coveted public service positions with tenure. The applicant suggested that there was political bias in the process, but he did not make much of this and the Tribunal is satisfied that he was not presenting any implied protection claim.

27. The applicant said that around the time that he completed his [course] (hence, around 2010), he started to think more about politics. At hearing, he gave a broad-brush account of Bangladeshi politics since 1991, describing the successive administrations and what he considered their strengths and weaknesses. He noted that the BNP-led coalition government, which ruled from 2001 to 2006, had done a lot to control political misrule and anarchy, and they introduced the Rapid Action Battalion (RAB)[2], which was used to tackle law and order problems. The Tribunal asked the applicant for his views on the last years of BNP coalition government, when widespread political and industrial unrest (such as general strikes, hartals) and rising crime rates formed the basis for the military to impose a caretaker government. The applicant replied that, around that time, he was a student, and not much focused on politics. By the time he became politically active, the AL was in power and he witnessed their corruption and lawlessness.

    [2] The Rapid Action Battalion is an anti-crime and anti-terrorism unit of the Bangladesh Police, established in 2003.

28. The applicant agreed that he had become interested in politics at a fairly late stage (given that politics looms large on many of the country’s campuses), and that there was no family political profile. He said that the main impetus for his interest was that a fellow business owner in Sunamganj, a man named [Mr B], told him that a political affiliation might help his business. The Tribunal noted that political links are often used to advance business interests, but added that the BNP did not appear to be in a good position to help its supporters following its crushing defeat in the December 2008 parliamentary elections. The applicant agreed, but said that for him, the choice of a political patron rested also on ideology.

29. The applicant said that [Mr B] (whom he referred to several times during the course of the hearing) owned [a] shop in a nearby market, and was a member of the BNP’s [Town 1] City branch. The applicant said that he is no longer in touch with [Mr B].

30. The applicant said that he joined the BNP by filling out a form and submitting it. He attended meetings in the BNP’s office, perhaps four or five times during 2010 and 2011. The party leader Khaleda Zia was present on a few occasions, but the applicant did not get direct access to her (or have his photograph taken), as he was not such a high profile member. The applicant said that he was invited to attend the BNP meetings more regularly, but he did not want to be any more than a ‘supporting member’.

31. The applicant said that the Chairman of the BNP’s office at the time was [Mr A]. He does not know the identity of the current occupant.

32. The applicant presented a certificate from the BNP’s [name] Branch, in [Town 1], dated [March] 2015. This certifies that the applicant participated in various BNP programs (and also that he was subject to extortion demands and death threats). The Tribunal alerted the applicant to country information about the prevalence of documentary fraud in Bangladesh, including not just forgeries, but also documents and certifications that prominent people are prepared to sign, without checking the veracity of their contents, either to assist constituents and/or simply in exchange for money.[3]  The applicant gave the following comments about the certificate:

    §  He had asked a [relative] to approach the BNP office and obtain a letter of support for him. The applicant had no further insight into how his [relative] obtained the letter.

    §  The applicant was not sure who actually wrote the letter. It has no legible name or office position; the applicant said that he only knew the previous chair, [Mr A].

    §  The Tribunal queried the reference in the letter to the applicant having been involved in ‘various BNP programs’, given the applicant’s own evidence that he had only gone to some meetings in the office. The applicant replied that at the BNP meetings, the leadership gave participants instructions – for instance, to block AL protests and demonstrations by any means, including through violence. The applicant said that he had no interest in these kinds of activities, and so he ignored the instructions.

    [3] The Tribunal drew on several sources, including DFAT, Country Information Report – Bangladesh, July 2016, in particular pp 23-24 (sections 5.23-5.30) on documentation, and Immigration and Refugee Board of Canada, BGD105263.E Bangladesh: Reports of fraudulent documents (2011-2015), 20 August 2015.

33. In sum, the letter’s authorship and provenance are uncertain. Its description of the applicant’s activities seems to go beyond the applicant’s own evidence. In the circumstances, the Tribunal places little weight on it as independent corroboration of the applicant’s claim to have been an active BNP member.

34. In a similar vein, the applicant presented a letter from his lawyer, dated [March] 2015, which is ostensibly addressed to the applicant as an update on his situation, with a recap of his political background and legal situation. The applicant said that he first engaged [his lawyer] in relation to the false cases. He said that he has no documents relating to his appointment of [his lawyer], the payment of fees, or any other correspondence or updates. The Tribunal is concerned that this text was prepared for the applicant in the lead-up to his Department interview, for the express purpose of assisting with his protection visa application. For instance, it is unclear why a lawyer would go to the trouble of summarising the applicant’s background, other than for presentation to third parties. In the circumstances, the Tribunal also places very little weight on it as independent corroboration that the applicant is a BNP worker (or in relation to his other claims).

35. The Tribunal notes that the other court and police documents that the applicant presented also refer to him as a BNP supporter (although the focus of these documents is the legal action to which he is purportedly subject). The Tribunal has similar concerns about the provenance of these documents, and their value as independent corroboration of the applicant’s claims. Furthermore, the Bengali texts before the Tribunal are all notarised transcripts that have been presented on affidavit paper, rather than actual copies of any original documents. The Tribunal places minimal weight on these documents as evidence of the applicant’s support for the BNP.

36. The applicant said that he has no ongoing contact with any former BNP colleagues or like-minded friends. He does not follow Bangladeshi politics, in the media or on social media. And he is not involved in any other political activities.

    Finding

37. The Tribunal is prepared to accept that the applicant tends to prefer the BNP (over the AL or other Bangladeshi political parties), and that he had some affiliation with the BNP after establishing his business. The Tribunal does not accept that the applicant’s political interests or past engagement extended beyond that; that he had any local profile as a person who favoured the BNP; or that he has any ongoing political opinion.

    Targeting by AL cadres

38. The applicant claims to have attracted the attention of AL cadres. The broad outline of his claims are as follows:

    §  They demanded money off him, but he refused to comply with their demands.

    §  The applicant went to the police to lodge a complaint, but the police refused to accept his case.

    §  AL cadres then targeted him even more, and lodged a false, politically motivated case against the applicant.

    §  The applicant was unable to continue his business, and had to close his shop.

    §  AL cadres filed false charges against him, and he is now subject to ongoing action (including an arrest warrant).

    §  The applicant feared arrest, and managed to leave Bangladesh by paying Immigration police at the airport ‘a huge bribe’.

39. The Tribunal considers each of these claims below.

    Extortion demands

40. The applicant claims that the AL cadres came to his business on a total of three occasions.

    §  At hearing, he said that on the first occasion, some four or five men arrived, and asked for ‘donations’. He put them off by saying he did not have much money to hand. The applicant initially thought that this was around late 2013, although his later evidence suggested it was in early 2014. In any event, the applicant stated that this happened after his first visit to Australia (hence, following his return to Bangladesh in early December 2013).

    §  About a week later, they came again, this time in a more threatening manner.

    -   The applicant discussed these demands with his friend [Mr B], who warned that there was no point in making the payments, as the demands would only grow. His friend recommended that the applicant be prepared instead to abandon his business.

    §  The applicant then made his second trip to Australia ([March] 2014 to [April] 2014). On his return, the men returned and again demanded money. The applicant replied that he did not have the money. He decided to follow his friend’s advice and no longer go to the shop.

1. The Tribunal noted country information that extortion of political opponents is widespread in Bangladesh, as is corruption generally and demands for protection money. It asked the applicant about conditions in his local area. The applicant said that his shop was located in a building where there were about 16 [other] shops on the ground floor, [shops] on the first floor, and the upper floors had other uses. The applicant said that he did not know, and had not enquired, whether other shop tenants had had similar problems (including any with BNP affiliations). The applicant commented that making such enquiries might risk antagonising the AL cadres further. The Tribunal also asked if the applicant had information about his friend [Mr B] (who he said owned a shop in another market nearby), or if he had asked BNP friends about the extent of this problem. The applicant said that he did not enquire or learn about others’ experiences – he had been too scared. He told the BNP office, but they had simply replied that they were unable to help him in the current climate. The Tribunal finds the applicant’s evidence about this highly problematic. He had little contextual information, and according to his account made no genuine enquiries about the extent of these extortion demands, how others dealt with them, and what forms of assistance or support might be available. The alleged role of his friend [Mr B] is particularly troubling. This person conducted a similar business, and provided the applicant with information (for instance, about the legal action against him) and advice. Despite this, the applicant had little insight into [Mr B]’s own experiences and how he manages to continue his business.   

2. The Tribunal accepts that corruption and extortion are commonplace in Bangladesh, and that local criminals (mastaans) affiliated with the dominant political party target opposing business owners, often acting with impunity.[4] While the applicant’s account finds support in such country information, he had little contextual information, such as the extent of such activity within the market overall, how others dealt with it, and what steps he took to avoid confrontation. In other words, the Tribunal has significant concerns as to whether the applicant was speaking from lived personal experience.

   Request for police assistance

   [4] See, for example, Rounaq Jahan, Political Parties in Bangladesh, CPD-CMI Working Paper Series.August 2014.

3. The applicant claims that he approached the police to lodge a complaint about the extortion charges. He identified the perpetrators as AL cadres, and the police then refused to proceed with the report. It was difficult to pinpoint when the applicant approached the police, although he implied that it was after the third extortion demand (after his return from Australia in late April 2014).

4. The applicant’s claim about the police reaction finds some support in country information, which highlights police inefficiency and corruption as real problems in Bangladesh. For instance, DFAT noted in its July 2016 report: ‘According to the International Crisis Group, political and bureaucratic interference is a significant impediment to police efficiency. BNP and AL Governments have both used the police to undermine opposition forces, and many politicians have used the police to advance their personal interests. While senior officers are relatively well trained, well paid and occupy important positions within the bureaucracy, the lower ranks are often poorly paid, trained and equipped.’[5] The Tribunal’s key concern, however, is whether the applicant was in fact subject to extortion from AL-affiliated thugs, and whether he approached the police for help.

   Intensified AL action against the applicant: the false case

   [5] DFAT Country Information Report – Bangladesh, 5 July 2016

5. The applicant claimed that the AL cadres must have learned about his approach to the police. Angered by that, and his ongoing defiance of them, they arranged for false cases to be lodged against him. At hearing, the applicant said that the charges alleged that, during a general strike (hartal), he attacked the police and their vehicle. He added that these are false charges, as he was not present at the location.

6. The applicant provided transcripts of three purported police documents, namely: (a) a First Information Report, signed [in] May 2014; (b) a petition of complaint, dated [May] 2014; and (c) a Charge Sheet, dated [October] 2014. The translated texts are in only passable English. These documents indicate that the applicant and [other] men were accused of participating in an illegal assembly [in] May 2014, obstructing the police in their duties, and seriously injuring police officers. The charge sheet of [October] 2014 states that the applicant is ‘absconding’.

7. The Tribunal discussed with the applicant when and how he learned about the false charges. He said that [Mr B] informed him about their existence, about the end of May 2014. The applicant surmised that government officials with political connections must have tipped [Mr B] off about the false charges. At that point, the applicant engaged a lawyer who confirmed the charges and obtained the papers. The Tribunal explored whether the applicant had any details or evidence of having engaged the lawyer in mid-2014, for instance, correspondence or proof of payments. The applicant replied vaguely that he just paid him directly, without receipts, and that he knew this man from when he was in Dhaka.

8. The Tribunal has significant problems with these claims, and the supporting evidence. First, as discussed at the hearing, it is difficult to grasp why the applicant is a person of interest to local AL-affiliated thugs, given that he has only a low-profile interest in the BNP; that he allegedly avoided payment of protection money (albeit at the cost of having to sell the business); and that his claimed approach to the police resulted in no action. Second, for the reasons given above, it is difficult to place weight on the purported transcripts of police documents as independent corroboration of the applicant’s claims. Third, the Tribunal does not believe that the applicant found out about these false charges through [Mr B], a fellow shopkeeper (rather than through any direct approach by investigating police or others). The Tribunal formed the view that the applicant had not thought this aspect of his claims through, and was improvising when asked about it. Fourth, the Tribunal does not accept at face value that the applicant engaged a lawyer in the matter, but has no details or records relating to that. Finally, as discussed below, the applicant’s conduct – in particular, his continued stay in Bangladesh until late November 2014 – appears inconsistent with that of a person who is at risk of being prosecuted on trumped-up charges.

   Closure of the shop

9. The applicant claimed that, under pressure from the AL cadres and the Bangladesh authorities, he was forced to close his business. As noted above, he did this around May 2014. The applicant said that he ‘sold the lease agreement’ by which the Tribunal understands that he clarified that he terminated the tenancy lease agreement on the shop, with one month’s notice; and he received the bond money back. He sold the items in the store to the shop next door, at a discount. The applicant was not sure whether his employees – a shop manager and two assistants – found other work, or whether there is currently a shop operating there. The Tribunal formed the impression that the applicant closed his business in an orderly manner, and not in response to any imminent threats (from AL cadres, thugs or Bangladeshi authorities).  

   Departure from Bangladesh and subsequent events

10. The applicant arrived in Australia on most recently [in] November 2014. As noted above, the applicant claims to have become aware of the false charges around May 2014, and to have closed his shop around that period. At hearing, he said that he remained living at home from May to November 2014. As for whether AL cadres and/or the police might have easily found him there, he replied that they only knew his business address, and not where he lived. He had instructed his employees not to divulge his home address. Later, the applicant said that he was not at home the whole time. He said that during this period, he lived off the proceeds from the family’s land holdings.

11. The Tribunal queried whether, if the applicant was subject to harassment from AL cadres and serious trumped-up criminal charges, he considered moving to another location on even a temporary basis (like the capital, Dhaka), or leaving Bangladesh for another country more speedily. He replied that Dhaka might offer some temporary safety, but eventually his enemies would find him. He did not explore options to go to other countries, as he had visited Australia previously and liked it.

12. The Tribunal is not satisfied that the applicant has given a full and frank account of his activities in Bangladesh after he sold his shop in May 2014. In any event, his continued residence in the family home suggests that he did not fear harm from AL cadres, the Bangladesh authorities or anyone. The timing of the applicant’s departure from Bangladesh adds to the Tribunal’s doubts that he did so in response to threats from AL cadres (including the forced closure of his shop) or the First Information Report and complaint, which occurred around May 2014. The Tribunal is also not satisfied that the issuance of the purported Charge Sheet [in] October 2014 has any role in explaining either the delay or the applicant’s departure several weeks later.

13. In his written statement of claims, the applicant claimed that he feared arrest, and managed to leave Bangladesh by paying Immigration police at the airport ‘a huge bribe’. At the same time, however, he indicated that he left Bangladesh on his own passport, legally. Despite ample opportunity to do so, the applicant did not repeat this claim at the hearing. The Tribunal accepts that the applicant had to pay a large sum for his travel to Australia, but it is not satisfied that this involved any bribes or similar payments.  

    Events after arrival in Australia

14. The applicant arrived in Australia in early November 2014, but did not apply for protection until two months later. At hearing, he said that he was initially unsure whether he should seek asylum here. However, he was in touch with his friend [Mr B], who alerted him that the AL cadres were intent on pursuing him, and would only demand more money if he came back. The applicant implied that this advice convinced him that he would need to seek protection in Australia.

15. The applicant’s delay of two months in seeking protection adds to the Tribunal’s doubts about his need for protection, and the veracity of his claims. The Tribunal notes that the delay is not significant, but it is more troubled by the applicant’s confused explanation as to why he hesitated. He has variously stated that he was trying to make things better, and that he ultimately relied on [Mr B]’s advice that the extortion demands will only get worse if he returns to Bangladesh. In the Tribunal’s view, it is unclear why, if the applicant is subject to false criminal charges, he had any hesitation in seeking protection. It was also striking that the applicant did not know how [Mr B], who runs a business in the same area, manages to continue his operations and deal with local AL racketeers. The Tribunal finds the applicant’s explanation unpersuasive. His delay in seeking protection adds to the Tribunal’s concerns that he did not flee Bangladesh in response to any threats from AL cadres, the Bangladesh authorities or others, but rather as part of an orderly plan to migrate to Australia.

16. The applicant also presented a purported order of the Chief Magistrate’s Court and arrest warrant, both dated [January] 2015. Again, the Tribunal has concerns about the provenance and genuineness of these documents, against a background of already strong credibility concerns. At the hearing, the applicant stated vaguely that the police came to his home looking for him once, but his parents told them that he was abroad. He thought they came by in the latter half of January 2015, but was not sure. (The Tribunal notes in passing that these purported documents were dated [January] 2015, two days after the applicant lodged his protection visa application. It follows that they cannot have played any role in the timing of the lodgement of that application.)

    Findings

17. The Tribunal finds on the available material that the applicant was frustrated that he could not join his brothers in [Country 1] (due to new visa restrictions) and by his prospects as [an] employee, and that he set up a [store] in a market. The Tribunal accepts that the applicant may have made some BNP contacts during this period, and that he, like other store holders, was required to pay certain fees which may have been, in effect, protection money. In light of the applicant’s scant evidence about his BNP activities, and the Tribunal’s overall concerns about his credibility, the Tribunal does not accept that he visited BNP offices during 2010 and 2011, or engaged in any other activities that might have given him a local profile.  

18. In light of the concerns set out above, considered cumulatively, the Tribunal does not accept that AL cadres (or others) singled out the applicant and his business for higher fees, or made extortion demands or threats, due to his BNP preference (or for other reasons). It also does not accept that the applicant sought police protection, or that the police refused to protect him from AL cadres’ extortion demands and intimidation. The Tribunal also does not accept that the applicant was forced to close his business due to his fear of escalated threats from AL cadres or others. It also does not accept that there are any false charges against him (including false charges brought by AL cadres, with possible police connivance), or any outstanding court action or arrest warrant. It also does not accept that he has engaged a lawyer to handle the matter.

19. The Tribunal finds that the applicant has given an unreliable account of his activities in Bangladesh between May 2014 and his departure in November 2014. It does not accept that he was ever in hiding, or taking other measures to avoid harm from AL cadres, the Bangladeshi authorities (pursuing the false charges) or others.

20. The applicant visited Australia twice, before his most recent arrival in November 2014. The Tribunal finds that his departure from Bangladesh was unrelated to his now-rejected protection claims, and did not involve the payment of bribes or any other actions to avoid harm. It also does not accept that there are any pending false criminal charges against the applicant, that the police have come to his home looking for him, or that the Bangladeshi authorities have any related adverse interest in him.

    Lack of political freedom

21. The applicant wrote in his protection visa application that the AL Government is preventing other parties (including the BNP) from exercising their political rights. The AL is doing so with the backing of the police, the Rapid Action Battalion (RAB) and the Border Guard Bangladesh (BGB). For instance, the police forcibly break up meetings called by opposition parties. 

22. The Tribunal has accepted above that the applicant prefers the BNP, and that he had some BNP links while trying to set up his business. However, the Tribunal does not accept that he has any profile, or any ongoing political interest.

23. The applicant’s account of the AL government’s treatment of BNP and other opposition groups is broadly consistent with country information. However, in light of its assessment that the applicant has minimal political interests, the Tribunal does not accept that the Bangladesh authorities ever prevented the applicant from engaging in political activities; that the police denied him protection (on the grounds that he favours the BNP and/or was complaining against AL-affiliated thugs); or that he refrained from political activism in order to avoid persecution or significant harm.

    Assessment – Refugee Criterion

24. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct, and relevant country information, whether he has a well-founded fear of persecution for any reason set out in s.5j(1) of the Act, on his return to Bangladesh, now or in the reasonable foreseeable future.

25. In light of the findings of fact above, the Tribunal accepts that the applicant prefers the BNP, and that he may have associated with some BNP contacts while seeking to establish his [business]. However, the Tribunal does not accept that he has attracted the adverse attention of AL cadres, Bangladeshi authorities or others for such reasons in the past. He has minimal ongoing interest in political issues.

26. The Tribunal finds that the applicant has no profile based on his past support for the BNP, in [Town 1] or elsewhere, and no political opinion that will motivate him to engage in political activities if he returns to Bangladesh in the future. The Tribunal finds there is no real chance of the applicant attracting adverse attention from AL supporters or cadres, or the Bangladeshi authorities, for political reasons. Similarly, the Tribunal finds that the applicant will not have to refrain from any political activity or modify his conduct, in order to avoid the risk of being persecuted.

27. The Tribunal accepts that the applicant may have had to pay some ‘fees’ or protection money when he operated his [shop] in Bangladesh, but it has rejected his claims that these were politically motivated; that he refused to pay them; and that he was subject to credible threats. The Tribunal has rejected all the claims concerning the forced closure of his business, the police refusal to protect him from the extortionists; and the false criminal charges that followed. Looking into the reasonably foreseeable future, the Tribunal finds that the applicant may once again look to set up a [business]. Even taking into account country information about corruption and extortion in Bangladesh, the Tribunal finds that there is no real chance of the applicant being targeted on political grounds (or for any other reason set out in s.5J(1) of the Act), and subject to extortion or similar demands that result in serious harm. Similarly, the Tribunal finds that there is no real chance of him requiring protection from this or similar harm, or of the Bangladesh authorities denying him protection for reason of his BNP preference (or other reasons set out in s.5J(1)).

28. The Tribunal finds that the applicant is not subject to any false, politically motivated criminal charges and ongoing court action in Bangladesh. It therefore finds there is no real chance of the Bangladesh authorities arresting him on his return to that country, imprisoning, prosecuting or in any other way inflicting serious harm on him, in relation to such charges.

29. The Tribunal has considered the applicant’s circumstances and prospects, together with relevant country information. It finds that he does not face a real chance of serious harm amounting to persecution, for any reason set out in s.5J(1) of the Act, in Bangladesh, in the reasonably foreseeable future: s.36(2)(a).

    Assessment – Complementary Protection

30. The Tribunal has considered whether on the evidence before it, there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh.

31. The Tribunal refers to the findings of fact above, its assessment of the applicant’s future conduct and its views of any associated risk. Having regard to his circumstances and relevant country information, the Tribunal is not satisfied that there are substantial grounds for believing that the applicant - as a Bangladeshi man who favours the BNP (but has no further involvement with the party), as a potential future business owner, or for any other reason - will face a real risk of being arbitrarily deprived of his life, that the death penalty would be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment.

1. Implicit in the applicant’s claims is a broader concern about Bangladesh’s political violence, poor governance and high levels of corruption. The Tribunal accepts that he considers that he and his family have better prospects in Australia compared to Bangladesh. However, the Tribunal is not satisfied that the differential in living conditions involves ‘significant harm’. Moreover, under s.36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the applicant’s concerns relating to the general political and security environment, and general living conditions in Bangladesh, involve real risks that the population generally faces, rather than the applicant personally.

2. 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: s.36(2)(aa).

   Overall conclusion

3. The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. 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).

4. 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).

5. 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

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

   James Silva
   Member

   
   

   ATTACHMENT A - 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 themself of the protection of that country: s.5H(1)(a). 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).

   Under s.5J(1), 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, 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 – 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.