1511579 (Refugee)

[2017] AATA 1074

1511579 (Refugee) [2017] AATA 1074 (16 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511579

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:James Silva

DATE:16 June 2017

PLACE OF DECISION:  Sydney

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

Statement made on 16 June 2017 at 6:15pm

CATCHWORDS

Refugee – Protection visa – Bangladesh – Political opinion – BNP member and officeholder – Threats of harm from Awami League members – Credibility issues – Limited knowledge of BNP

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 91R
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 [age] from Dhaka, Bangladesh. He claims to be a citizen of Bangladesh.

2. The applicant arrived in Australia [in] February 2015, as the holder of a [temporary] visa. [In] February 2015, he applied for a Protection (Class XA) visa. The applicant attended an interview with the Minister’s delegate [in] July 2017.

3. [In] August 2015, the delegate refused the application pursuant to s.65 of the Act.

4. This is an application for review of that decision. The applicant appeared before the Tribunal on 20 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. A summary of the relevant law is at Attachment A.

   CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

   Claims

7. The applicant claims that he is a supporter and former office-bearer of the opposition Bangladesh Nationalist Party (BNP). He claims to fear that three named activists from the ruling Awami League (AL), back by government agents, will detain, imprison and assault him if he returns to Bangladesh, because of his past involvement with the BNP, and in pursuit of false criminal cases.

   Background

8. The applicant is a [age] year old man from Dhaka, Bangladesh. He is fluent in Bengali (Bangla) and has some English. The applicant identifies as a Bengali of Muslim faith.

9. The applicant indicated that he was born in Dhaka, and lived at one address there until his departure for Australia in February 2015. He said that he actually grew up in the village of [name], some [number] hours by bus from the capital. Later, the applicant claimed that he was in hiding for a year or more before coming to Australia.

10. The applicant said that he completed his Year [grade] examination at school, but failed one subject and did not continue his education. The applicant’s protection visa application contained no information about his employment. He told the Tribunal that he ran a [shop] (employed by another person), for about five years. The applicant had little to say about other paid employment, impressing on the Tribunal that he was doing political work for the BNP and/or in hiding. Pressed for details, he said that he did some casual work for some time, but also lived off savings from the shop and from small remittances (in the form of loans) from his [siblings] in Australia. Asked whether he had given advice of any employment when applying for his [temporary] visa, the applicant said that he had been working as a [occupation] (or similar type of [work]) for a [relative].  In all, the Tribunal found the applicant unforthcoming about his employment in Bangladesh. It formed the view that he withheld or misconstrued information, in order to highlight his political profile and in order to convey an impression of ongoing hardship.

11. The applicant married in 2005. His wife and [children] live in the family home in Dhaka (although the applicant said that they sometimes stay with other relatives). The applicant’s [sibling] is the other occupant of the house. The applicant claims that he is in regular contact with his wife and children.

12. The applicant’s parents are deceased. His father had worked in [a workplace], and it was that job that brought the family to Dhaka. The applicant has [siblings]. Two of the [siblings] live in Australia. [One] came to Australia many years ago, sponsored by [a relative]. [Another] came as a [temporary migrant]. The applicant said that [one brother] supported the BNP, but his travel to Australia is not linked to the applicant’s protection claims.

13. The applicant said that his [brother] sponsored him to come to Australia. The applicant stayed with his brother for only a short while, as his brother has his own family and money issues. The applicant now has only occasional contact with his brothers, by telephone.

14. The applicant confirmed that he did not wish to present either brother as an oral witness. He explained that [one] brother had just had [a medical procedure] and has [other medical problems]. Neither the applicant nor [the representative] suggested that the Tribunal speak with him, and the Tribunal did not explore this further.

15. The applicant said that he is living in shared accommodation in Sydney. He said that he has permission to work, but has been unable to find a job so far. He receives Centrelink benefits, but has not managed to send money to his family. As a result, his wife borrows money from others. The Tribunal is not satisfied that the applicant was completely candid about his circumstances in Australia.

    Evidence

16. The evidence before the Tribunal includes the following:

    §The applicant’s protection visa application [in] February 2015, which includes a statement of the reasons why he is seeking protection.

    §A photocopy of the biodata page of his Bangladeshi passport is attached.

    §Supporting documents (in Bengali only), which were presented as evidence of his membership of the Jatiyatabadi Jubodal (JBD)

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

    §The Protection Visa Assessment (‘delegate’s decision record’) dated [in] August 2015.

    §The review application has attached to it a copy of the delegate’s decision record.

    §The Tribunal received a pre-hearing submission dated 19 April 2017 with an overview of the applicant’s claims, a summary of relevant law, some press articles about political violence in Bangladesh, and several supporting documents (see immediately below).

    §Supporting documents:

    -Copy of a letter from the JBD’s [branch], dated [in] February 1999[1].

    -Copy of a letter from the Bangladesh Jatiotabadi Jubodal (‘JBD”, the BNP’s youth wing), [Police] Station branch, with English translation, dated [in] February 2014.

    -Letter from [Mr A], [official] of [Organisation 1][2], dated [in] April 2017.

    -Letter of support from the applicant’s wife, translated [in] March 2017.

    §At the hearing, the applicant stated that he had participated in some BNP activities in Australia, but he had forgotten to bring photographs. On 9 May 2017, the representative telephoned the Tribunal to advise that the applicant had lost ‘the images from his phone’ (an apparent reference to photographs showing his participation in BNP events).

    §On 29 May 2017, the applicant sent to the Tribunal directly (not through his representative) a copy of a page from [a newspaper] dated [April] 2016 edition. The applicant stated that he was forwarding these attachments ‘as requested from AAT’ (presumably a reference to the Tribunal’s grant of further time to the applicant to provide photographs showing his participation in BNP events in Australia, or to make further submissions). The untranslated Bengali text includes a photograph of a group of people standing in front of a banner entitled ‘[slogan deleted]’ (this refers to the BNP). On 15 June 2017, the Tribunal alerted the applicant’s representative to this email, and advised that the Member proposed to proceed on the basis that the untranslated article was general in nature, and did not relate specifically to the applicant or his protection claims. The representative said he would discuss this with the applicant, and provide further advice (if any)  to the Tribunal by noon, Friday 16 June 2017. The Tribunal has received no further advice or submissions.

    §Country information: The Tribunal drew on a range of country information, including the Department of Foreign Affairs and Trade’s Bangladesh Country Report, dated 5 July 2016. It also noted various internet articles that the applicant’s representative provided, which included references to political violence in Bangladesh and extrajudicial killings.

    [1] The applicant and his representative indicated that the applicant arranged for the letter to be issued during 2015, so the date on the letter is incorrect (a ‘philosophical thing’, the representative said).

    [2] One of several BNP groups in Australia.

17. The applicant appeared before the Tribunal on 20 April 2017, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Bengali (Bangla) and English languages. The applicant’s [representative] was present. The applicant did not present any witnesses.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility

18. 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].

19. The Tribunal has extensive concerns about the truthfulness of the applicant’s claims. It acknowledges that his claims accord with country information about the ruling AL’s pursuit of its political opponents, including physical attacks and politically motivated cases, and police corruption. It notes, too, that he has presented a number of recently prepared documents to support his claims. However, the applicant’s account of his political profile in Bangladesh, and his experiences, was often vague and repetitive. He provided few insights or details, and had no real corroborative evidence from his (claimed) long period of political activism. Overall, the Tribunal formed the impression that he was not speaking from personal lived experience at all. The Tribunal’s more detailed consideration of these claims and evidence follows below.

20. As noted above, the applicant emphasised that he is living in difficult circumstances in Australia. He implied that he continues living in Australia only because of his fear of returning to Bangladesh, where he faces potential persecution or significant harm. Indeed, [the representative] in his closing submission teased this point out. He invited the Tribunal to take account of the applicant’s difficulties here – his separation from his family, his lack of work, his inability to send money to his wife and children, and his worry about their welfare in Dhaka – as evidence that he remains in Australia only in order to seek protection, and not for economic or other reasons. As noted above, the Tribunal is not satisfied that the applicant was fully candid in describing his life in Australia. It therefore places minimal weight on these factors in the assessment that follows.

    Political interests and profile in Bangladesh

    Support for the BNP

21. In the statement attached to his protection visa application, and in his evidence, the applicant initially focused on his claim to have joined the JBD’s [Thana 1] branch in 1999, and his role as the [Official 1] in [a] Union branch from 2000.

22. The applicant explained his attraction to the BNP. This was at a very general level of admiration of the first leader, Ziaur Rahman, and his contribution to the life of the country. The applicant said that he joined the BNP because he likes the personalities and the works of the party. For instance, he believed that Ziaur Rahman had done a lot to protect Bangladesh as a nation, and to build schools, colleges and madrassas.

23. General country information indicates that the BNP is one of Bangladesh’s oldest and largest political parties, and now the main opposition group. Jane’s Sentinel Security Assessment[3] gave the following profile:

    Political stance: The BNP follows a broad centre-right policy combined with an Islamic and nationalist ideology. It was founded in 1978 by the country's first military ruler, General Zia ur-Rahman (husband of its current leader, Khaleda Zia) and was designed to help create a support base for Zia. It has tended to define itself primarily in opposition to the AL, with a fierce personal rivalry between Zia and Sheikh.

    Support base: The party fared extremely poorly in the December 2008 elections, winning only 30 of 300 seats, but it has arguably recovered from that position. Local election results in early 2014 and inputs from IHS sources in Bangladesh suggest that the party has enough to pose a challenge to the AL in an election. Recent history: The BNP led the boycott of the January 2014 election and therefore has no representation in parliament.

    [3]Jane’s Sentinel Security Assessment (subscription only), South Asia – Bangladesh, Internal affairs, updated 28 October 2014, Opposition prospects and programme, date accessed 23 December 2014, referred to in UK Home Office: Country Information and Guidance: Bangladesh: Opposition to the government, February 2015:

24. The applicant said that many members of his extended family are BNP supporters and general members. He then went on to stress that those involved in the party are ‘all in hiding’, and that they avoid taking on any posts as it could put them at risk of being targeted politically.

25. Throughout the discussion, the Tribunal found it difficult to elicit meaningful detail from the applicant. It appreciates that this may have been in part his presentational style, some nervousness, and/or an eagerness to address his claims of persecution (or significant harm). However, the Tribunal formed the impression that he actually had only limited knowledge of and direct experience with the BNP, but was rather trying to focus on his alleged fears of political harm.

26. The Tribunal accepts, on the basis that it is plausible, that the applicant at least favours the BNP. It takes into account that the BNP is one of Bangladesh’s oldest and largest parties. It also acknowledges that a person may develop a genuine political preference on the basis of family tradition, and a generally positive view of a party’s leaders or policy statements, rather than a detailed understanding of the history or ideology.

    The applicant as a BNP office-holder and campaigner

27. The applicant claims that, over and above his general support for the BNP, he developed a local profile due to his involvement as a party organiser and activist. As noted above, he claims that after joining the JBD’s [Thana 1] branch in 1999, as a general member, he was promoted to be [Official 1], which gave him some local profile.

28. The Department of Immigration and Border Protection provided some background information on the JBD in an issues paper[4], in January 2017:

    The Bangladesh Jatiyatabadi Jubo Dal, or Jubo Dal for short, is the youth wing of the BNP. According to Dhaka-based newspaper The Daily Star, ‘the Jubo Dal leads an alliance of opposition party youth wings similarly to how the BNP has a leading role among opposition parties’. The BNP constitution describes the [JBD] as a BNP ‘front organisation’ which has received approval from the BNP. The constitution notes that each front organisation ‘will have its own proclamation, constitution, flag and office and this front organization will fall under the discipline of the main organization.’ In a 2014 research response the IRB quotes a Professor who states that the BNP and [JBD] have completely separate executive committees and ‘there is no overlap between the two organizations, as there is a practice of "graduation" of activists from the [Jatiyatabadi Juba Dal] who then move into the BNP.’

    While the JJD is a ‘youth’ party, there is no upper age limit for membership of the party.[5]

    [4] Department of Immigration and Border Protection: Issues Paper: Bangladesh – Political violence involving Awami League and Bangladeshi Nationalist Party supporters, 2014-2016, 4 January 2017

    [5] The DIPB Issues Paper cites the following sources for this information: Suykens, B. and Islam, A 2015, The Distribution of Political Violence in Bangladesh, Conflict Research Group, p.18, <CISEC96CF1859> ; The Daily Star, cited in Immigration and Refugee Board of Canada 2012, Bangladesh: Bangladesh Nationalist Party (BNP), including its

29. At the hearing, the applicant said that his role in the JBD involved him [certain duties]. He claimed to have held this position until 2013, when he became a member of the JBD [Thana 1] branch’s Executive Committee. The applicant said that the party gave him money to buy [certain items], and he accounted for it carefully. He named the Central Secretary of the JBD, but could not recall the name of the Treasurer. He did not have any examples of signed contracts or receipts relating to this work, and gave only a general account of how he was sometimes asked to make purchases for his group.

30. The applicant also claimed to have actively campaigned for BNP candidates in national parliamentary elections.

    §  He claimed that in 2001, he did door-to-door campaigning for the BNP candidate Kamrul Islam, who defeated his Awami League (AL) rival AKM Rahamat Ullah.

    §  During the period of BNP rule (from 2001 to 2006), the applicant claimed to have performed ‘routine work’ for the party, which he clarified at the hearing meant following instructions and assisting the party as required. For instance, he helped to ‘mobilise people’ and organise picketing.

    §  The applicant said that he also campaigned during the 2008 parliamentary elections, to support the BNP candidate Mr Qayum. Again, this involved door-to-door campaigning and participating in processions.

31. The applicant claimed that in 2011, he was elected as ‘the [official 2]’ of the [Thana 1] JBD, which further increased his political profile in the eyes of the AL and other opponents. He said that the committee consisted of about [number] persons, and that he worked ‘tirelessly for the party’, planning and organising picketing. The Tribunal asked the applicant to describe the organisation of the [Thana 1] Union BNP, which consists of [number] units. He struggled to recall the names of the individual units, explaining that he was in fact responsible for just one ward that was part of [name] Union. The Tribunal also invited the applicant’s comments on reports that the [Thana 1] Union BNP had been quite inactive during this period, mainly due to internal conflict:[6] The applicant agreed that the BNP had not been very active during this period, commenting that every party has to contend with personnel issues. The applicant’s comments about the organisation of the BNP in [Thana 1] Union and its internal difficulties were vague, and in the Tribunal’s view did not reflect the kind of insights or perspective that an insider would have.

    Supporting documents

    [6] [Information deleted].

1. The applicant provided several letters to support his claimed involvement with the BNP and the JBD in Bangladesh. These are, in summary:

   §  A letter from the JBD’s [branch] office, dated [in] February 1999, states that the applicant was an ‘acting member’ of the [Thana 1] Unit in 1999, and that his ‘political performance was good’.

   §  A letter from the JBD’s [Police] Station branch, dated [in] February 2014, indicates that the applicant is a member of the local Executive Committee, and that his ‘political activities are good’.

   §  In a letter dated [in] April 2017, [Mr A], [official] of ‘[Organisation 1]’ (one of several groups in Australia identifying with the BNP), wrote that the applicant joined [Organisation 1], after party work in Bangladesh that is ‘significant and well-known’. He describes the applicant as a ‘very active member of the JBD’.

   §  The applicant’s wife, in a letter that is mainly focused on the applicant’s problems in Bangladesh and his need for protection, states that he ‘does the politics of the opposition party in Bangladesh’.

2. The Tribunal has a number of concerns about the value of these documents as independent corroboration of the applicant’s political involvement (or his associated problems and need for protection):

   §  The Tribunal flagged concerns about the provenance of these documents, in particular why the applicant had produced letters dated February 1999 (around the time he claims to have first joined the JBD) and February 2014 (more than six months before he lodged his application for an Australian visa). The applicant clarified that, after arriving in Australia, he asked a ‘co-worker’ (a BNP friend) to obtain these letters for him. They had been inadvertently backdated, which the applicant referred to as a ‘mistake’. The representative acknowledged that there was an obvious error in both letters, but suggested that they did not detract from the substance of what was being verified.

   §  The Tribunal discussed with the applicant the authors’ continued presence in their respective BNP offices if, as claimed, it is too dangerous for BNP/JBD activists. The applicant replied that he had been attacked personally (see claims below). He added that, in any event, his BNP colleagues are now also being imprisoned and unable to live in peace.

   §  Finally, the Tribunal is concerned that these letters – including the one from the applicant’s wife – have been written recently, and for the express purpose of assisting the applicant with this application, rather than genuine first-hand accounts of what has happened in the local area.

3. The letter from the [official] of [Organisation 1], written under the letterhead of the [name], and dated [in] April 2017, states that the applicant ‘became a member of [Organisation 1]’, and notes that his contribution to the party (by implication, while he was still in Bangladesh), is ‘significant and well-known’. The applicant confirmed that he did not mention any such involvement to the delegate[7]. He said that he was quite sick when he first arrived in Australia, and worried about having left his wife and children behind. In response to the Tribunal’s query, he said that he did not have the original of the letter. The applicant did not provide any further details or supporting evidence to show his involvement with the BNP in Australia. As with the other letters, the Tribunal is concerned that it lacks substance and details, but rather that it was obtained for the purpose of bolstering his protection claims. It places little weight on this as evidence of the applicant’s profile or level of commitment to the BNP, in Bangladesh or more recently in Australia.

   [7] The Tribunal drew on the delegate’s decision record, which the applicant provided with his review application.

4. The letter from the applicant’s wife briefly mentions that he does ‘the politics of opposition party in Bangladesh’, but for the main part focuses on the dangers that he (and she) face, and his need for permanent residency in Australia. The Tribunal places minimal weight on this as independent corroboration of the applicant’s political profile (or other aspects of his claim), given his wife’s obvious direct interest in the outcome of this application.

5. In sum, the applicant submitted a number of recently produced documents. Their reliability as independent corroboration of his claimed political profile in Bangladesh, and his experiences, is questionable.

6. The Tribunal explored with the applicant whether he had other evidence from his claimed years of political work for the BNP/JBD in Bangladesh, mainly at a local level and in a role such as the [Official 1]. The Tribunal had in mind examples such as photographs of [events] or political events, correspondence, receipts (from purchases) or public announcements of events. Although the Tribunal acknowledges that applicants for asylum are often unable to corroborate their claims with documentation or other evidence, it considers the applicant’s political and associated social/cultural work spans some fifteen years, and included periods when the BNP was in power. The applicant replied that he had many photographs before he came to Australia, but his [child], who was about [age] at the time, accidentally erased them all. The Tribunal finds unpersuasive, and does not accept, that all photographs showing the applicant engaged in political work (or similar) were on one camera, which his [child] erased. Towards the end of the hearing (after the Tribunal had reiterated its concern about the lack of corroboration from his time in Bangladesh), the applicant said that he actually has many photographs at home (in Dhaka), but he did not think to bring them with him. He did not flag any interest in obtaining these, and the Tribunal did not press him to do so. 

   Findings

7. In the Tribunal’s view, the applicant demonstrated some degree of local political knowledge – including of BNP/JBD offices and personalities – but his overall account of his activities and local developments was vague and unsubstantiated. The Tribunal accepts that, as a BNP supporter, he may have participated in some local BNP activities and supported the party, but it does not accept that he was a member or that he occupied any local position, even at the Thana or ward level. It follows that the Tribunal does not accept that he had any local profile or influence that might bring him to the adverse attention of AL figures.

   Attacks against the applicant

8. The applicant claims that, as a JBD activist, he was the subject of several attacks, the first of which occurred in March 2012; as well as a false case. The Tribunal views these claims with great scepticism, given its finding above that he was not in fact a BNP/JBD office holder, or a person perceived to have any political profile or influence.

   First attack, March 2012

9. The applicant claimed that [in] March 2012, a group of AL cadres assaulted him seriously at [a] Market. He was left unconscious on the street. Some local people took him to the clinic.

10. At the hearing, he said that about [number] people attacked him while he was shopping at a local market. He surmised that they were AL people, but did not have a chance to see or recognise them. One of them struck him in the head, and he lost consciousness. Some local people took him to the clinic. The applicant said that he still has the scars from this attack.

11. The Tribunal explored a number of aspects about this claim with the applicant:

    §  First, it expressed surprise that, despite his claimed role as a BNP activist since 1999, this was the first physical assault or noteworthy incident. At one point, the applicant said that he did not record minor ‘skirmishes’, implying that there had been some earlier incidents of lesser note. Later, he added that his party activities had been increasing over time, implying that he had acquired a higher profile and was therefore more vulnerable.

    §  Second, the applicant said that he was taken by rickshaw to a local clinic, where he was bandaged up, given some medications and an injection. Despite having lost consciousness, the applicant said that he was only given first aid and there had been no checks for further injury. He paid cash for the treatment, and did not have any receipt, discharge certificate or other evidence of having been treated. Later, he added that his wife had been looking for some receipts, unsuccessfully, and that it was a small clinic that probably no longer exists.

    §  Third, the applicant said that during this period, he was living at home and reliant on money that his brothers in Australia were sending him. He told his brothers about the attack, and they recommended that he keep a low profile and go into hiding. In response to the Tribunal’s puzzlement as to why he did not consider leaving Bangladesh, he said that he had already obtained a Bangladeshi passport at that stage, with a view to going to work in [region], but neither he nor his brothers had the funds for him to visit Australia.

12. The applicant said that he was in hiding most of the time, and at most only doing casual work. In response to further questions, he said that he did help one relative from time to [time]. During the course of the exchange, he said that there was little work available at the time, and people were loath to engage him because of his political profile. Despite the alleged attack and the claimed lack of work, he remained living in the family [residence] because he had various relatives in the immediate vicinity, with whom he could also stay at short notice. Once again, the Tribunal found the applicant’s evidence about issues such as his work and residence, to be changeable, and difficult to reconcile with the substance of his protection claims.

13. The applicant claimed that he could not seek police protection, because they were linked with the ruling AL.

    Second attack, December 2013

14. The applicant claimed that in the evening of [date] December 2013, when he was returning home from some work at the local market, some AL people with guns started to chase him. The applicant saw a police van nearby, and the ‘terrorists’ halted their pursuit of him.

15. At the hearing, he said that he was returning home from a feast at some relatives, passing by a fairly secluded area. A group of about [number] people gave chase, and fired two shots. The applicant did not see his attackers, but realised that they must have been AL people, because of his profile. The Tribunal queried whether they might have been common criminals, given that he was passing a secluded spot at night. The applicant said he was confident that they were AL cadres, because they were the ones who had access to firearms. Asked whether the police had observed or responded to the incident, the applicant said that his attackers used silencers on their guns, and to his knowledge, the police did not become aware of the attack.

16. The Tribunal noted that some 18 months had passed between the first alleged attack and the second one, and wondered if there was a link. The applicant said that he was subject to ongoing threats, to the point where he just switched off his mobile telephone. In the Tribunal’s view, the gap between the two alleged incidents is significant, and it is not satisfied that the applicant’s claim to have avoided taking their telephone calls – even when considered with his claim to have been in ‘hiding’ – adequately explains the gap between the two incidents.

17. The applicant said that he went home and informed his wife of the attack. She was very upset. He said that he had ongoing, occasional contact with his brothers in Australia, and when he told them about the attempted shooting, they reassured him that they would continue looking for an opportunity for him to get to Australia.

18. The Tribunal noted that about a year passed between this incident and his application for a [temporary] visa[8], which hardly suggested that he was living in fear of his life and seeking to flee Bangladesh. The applicant said that he had to save money to obtain his new Bangladeshi passport, which was issued in [2014]. During this period, he was too afraid to leave his home. All these factors (and, by implication, also the funding of his travel) explained his delayed departure from Bangladesh.

    False case, early 2014

    [8] As evidenced by the delegate’s decision record, a copy of which the applicant attached to his review application.

19. The applicant said that after the attempted shooting, he stayed at home only occasionally, instead hiding with various friends and relatives. On two occasions when he was not home, the police came to his home and told his wife that there was a case against him. The applicant thought that this occurred about a month after the second attack, hence in early 2014. The police gave few details, but suggested that it related to an old charge of arms dealing. They did not provide any paperwork.

20. The Tribunal again queried the applicant’s delay in departing Bangladesh after learning about these charges. He stressed that he and his brothers lacked funds to move his passport and visa applications along faster. Meanwhile, he stayed locally, mainly in hiding.     

21. The applicant claimed that during June and July 2014, he was at the forefront of street processions protesting the AL’s refusal to install a caretaker government in the lead-up to the elections. Asked to reconcile this with his claim that he was in hiding and fearful of his life, the applicant said that his BNP colleagues said that he would be reasonably safe if he stayed in the middle of a large crowd. He was prepared to take this risk, although obviously he was again unprotected as soon as the procession was over. The Tribunal flagged that it was difficult to believe that a person who had been subject to what appeared to be an attempted murder, as well as ongoing false charges, would risk participating in public demonstrations, particularly if (as claimed) the Bangladesh security forces are responding aggressively to BNP activities.

    Departure from Bangladesh

22. In relation to his ability to obtain a new Bangladeshi passport in [2014], and his ability to depart Bangladesh legally, the applicant said that he had to pay a bribe for the passport and also to an immigration official. Pressed for details, he initially stated that he paid an agent extra money to hasten the processing of his passport, but then added that he also had to exercise caution in case the passport authorities caught wind of the criminal charges. The applicant said that he had to pay a total of Tk [amount][9] for the passport and his safe exit. Of this, Tk [amount][10] was handed in cash to a person who gave it to an immigration official at the airport. Asked for details of that transaction, the applicant said that a person approached him at the airport indicating that he had ‘problems’, and offering to fix them. The person asked for Tk [amount] but the applicant had only Tk [amount] in cash, and handed it over.

    Findings

    [9] $A [amount] at current exchange rates.

    [10] $A [amount]

23. The Tribunal finds the applicant’s claims about being targeted by AL cadres and, later, the Bangladeshi authorities, to be very problematic. First, it has already rejected his claim to be a JBD activist and persona with a political profile. This raises questions not just about whether he would be a person of adverse interest to AL supporters and/or the authorities, but the overall truthfulness of his claims. Second, the applicant’s account of the incidents lack detail. Third, the applicant’s conduct – in particular, his continued residence in the local area (despite claims of also being ‘hiding’ there from time to time) and the apparent lack of urgency in trying to depart Bangladesh for Australia, or seeking other solutions – adds to the Tribunal’s doubts. Finally, the applicant’s lack of curiosity about the false charges and his stated willingness to appear in public demonstrations in mid-2014 (although the Tribunal does not believe he in fact did so – are also problematic.

24. Taking all of these concerns together, the Tribunal does not accept that AL cadres attacked the applicant in March 2012 or December 2013, or that he was subject to false charges in January 2014. The Tribunal rejects all associated claims, including that the applicant received physical injuries; that he was fearing for his life; that he was in ‘hiding’ for some or all of that period, that he was unable to find work (because he was in hiding or because of any political profile); that he was looking for opportunities to leave Bangladesh due to his fear of AL cadres and the Bangladesh authorities (but only prepared to consider Australia as an option); or that his wife (who claims to have been with the applicant when the criminals tried to shoot him in December 2013) is in a deep depression because of these circumstances. The Tribunal also does not accept that the applicant needed police protection (as a result of any of these incidents), but feared approaching the police, fearing that they would refuse him protection or perhaps even harm him.

25. The Tribunal finds that the applicant departed Bangladesh using a genuine Bangladeshi passport in his own name. It accepts that he may have had to pay some agents’ fees associated with the passport application or travel arrangements, but does not accept that he paid bribes to obtain the passport or to safely depart Bangladesh, in order to avoid official scrutiny or arrest (for instance, in relation to the false charges).

    Recent events

26. The applicant’s wife wrote in her letter that she is feeling deeply depressed. AL cadres are always coming to their home asking if the applicant has returned from Australia yet, and the police also visit from time to time. Someone threw a bomb onto the veranda of the family home.

27. At the hearing, the applicant said that his wife has been terrified ever since the attempted shooting (in December 2013), and is worried that someone will kidnap their children, for revenge. On one occasion, a bomb damaged the windows of the home. The applicant said that she continues to live there, although he later added that she and the children are spending about half their time with relatives. Her parents are unable to accommodate her and the children. He said that he has not worked in Australia, and his wife and children are surviving only by borrowing money from various people. The house is falling into disrepair.

28. The Tribunal accepts that the applicant’s wife and children are missing him, and face some practical challenges, even though numerous relatives live locally. However, in light of the above assessment, the Tribunal does not accept that the applicant’s wife is deeply depressed because of past experiences (the Tribunal has rejected these above); that someone threw a bomb onto the veranda of their home (for alleged political revenge); or that she and the applicant fear that his claimed opponents may take other action, such as kidnapping the children.

29. The Tribunal accepts, on the basis that it is plausible, that the applicant has some concerns about his wife’s and [children’s] living circumstances in Bangladesh, while he is in Australia and the family is separated. This may include matters such as financial security, their reliance on relatives living in the neighbourhood, and the maintenance of the family home. The Tribunal is concerned that the applicant has exaggerated some of these factors, such as his claim not to have worked in Australia or sent any money to his family. However, the Tribunal does not accept that any of these factors relate, directly or indirectly, to his now-rejected claims to have been subject to politically motivated threats, violence or legal action.

30. As noted above, the applicant presented a letter [Mr A], [official] of ‘[Organisation 1]’ stating that he ‘joined [Organisation 1]’. Asked at the hearing whether he pursued any political interests, the applicant commented obliquely that he forgot to bring papers to the hearing, namely pictures with the BNP, as he had not been feeling well. He did not provide any details.

1. As noted above, the applicant’s representative advised on 9 May 2017 that the applicant had no further submissions, and that he had lost the photographs (presumably of him at BNP functions in Australia). On 29 May 2017, the applicant sent to the Tribunal a copy of [an] article in [a newspaper] edition of [April] 2016, which includes a photograph of about [number] people in front of a BNP banner. The photograph appears to show the applicant standing to the far left of the group. There is nothing to indicate that the body of the article relates directly to the applicant personally. The Tribunal accepts that the applicant attended a BNP function in late March 2016 (which appears to have been the basis for the article and photograph), and that he may also have attended some similar functions.

2. The Tribunal accepts that the applicant has attended some events at a BNP-related group in Australia, and that he may have become a ‘member’ of this group. It finds that he did so because he generally favours that party, and for related social reasons. It does not accept, on the available material, that he has a political profile as a result of this activity, or that it signals that he has developed a political commitment whilst in Australia.

   ASSESSMENT: REFUGEE CRITERION

3. The Tribunal is required to determine whether the applicant faces a real chance of serious harm amounting to persecution, for one or more of the reasons set out in s.5J(1) of the Act.

4. In light of the findings of fact above, the Tribunal accepts that the applicant prefers the BNP, and that he may have been involved in some local BNP or JBD activities in Bangladesh, such as sporting/cultural activities, and pre-election gatherings. However, the Tribunal does not accept that he was a BNP or JBD member, or activist, or office holder, at any time. It also does not accept that he attracted the adverse attention of AL cadres (or suspected criminals acting on their behalf); that he was threatened (by telephone or in person); assaulted or subject to an attempted murder; or that he had to take precautionary measures, such as hiding or avoiding regular work.

5. The Tribunal finds that the applicant has no profile based on his past support or preference for the BNP, in [Thana 1], Dhaka or elsewhere in Bangladesh.

6. The Tribunal accepts that the applicant has attended some BNP-related activities in Australia. While he relied in part on his conduct in Australia in this application, the Tribunal is satisfied that he was drawn to this BNP group in part also for political and social reasons. It is satisfied that the applicant’s conduct, in attending local BNP meetings, was not solely for the purpose of strengthening his claim to have a well-founded fear of persecution. The conduct therefore does not fall within the scope of s.91R(3) of the Act, and the Tribunal is not required to disregard it when assessing his claims against the refugee criterion. The applicant’s presence at such meetings does not alter the Tribunal’s assessment of his low level of political engagement in Bangladesh. The Tribunal finds that the applicant has not developed any further political commitment as a result of his very limited activities in Australia, or that his mere presence at such meetings gives him an adverse political profile in the eyes of the Bangladeshi authorities generally, or his alleged political enemies in Dhaka.

7. Looking ahead to the future, the Tribunal accepts that the applicant may continue to favour the BNP, and participate in some local events. However, it finds that he has no political opinion or level of commitment that will motivate him to engage in high profile political activities, such as demonstrations or seeking political office. Given his low level of support and interest, 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.

8. The Tribunal reaches these conclusions based on its assessment that the applicant’s individual circumstances, in particular, its assessment that his level of political engagement is very low. At the hearing, his [representative] urged caution in relying on the Department of Foreign Affairs and Trade’s assessment[11] of the risks facing BNP supporters. This states in part: ‘DFAT assesses that under the current AL Government BNP leaders […] are subjected to a high level of official discrimination during periods of heightened political tension, particularly national elections. JCD [Jatiotabadi Chattra Dal, BNP student wing…] members are subjected to a moderate level of harassment from members of the [AL’s] Chattra League. BNP supporters or members in rural areas are subjected to a low level of violence associated with AL extortion.’ [The representative] said that he returned from Bangladesh in early April 2016, and he considers that the DFAT conclusions were about 80 per cent correct, and somewhat politically biased. He drew attention to country information provided in the submissions, highlighting the prevalence of extrajudicial killings, and the pursuit by the AL government of even low-level opposition leaders, members and activists.

   [11] See DFAT Country Information Report, July 2016

9. The Tribunal has had regard to DFAT’s country information assessment, as required by Ministerial Direction No. 56, and noted [the representative]’s comments. It has also consulted general country information from a range of recent, reliable sources. In the present case, however, it places great weight on its assessment of the applicant’s past circumstances, and in particular, its conclusions above that he has a low level of political engagement and has not been the subject of adverse attention from AL cadres or the Bangladesh authorities. These views, in turn, influence its assessment of his future conduct, profile and risks. The Tribunal is not satisfied that the applicant, based on his past experiences , and even if he were to continue as a low level BNP supporter on his return to Dhaka, faces a real chance of serious harm amounting to persecution.

10. The Tribunal accepts that the applicant may have had to pay some ‘fees’ when obtaining his passport or in association with his travel abroad. It is not satisfied that these had any link with his political preference, or that they involved ‘serious harm’, or that he had to pay such sums in order to avoid politically motivated violence, the pursuit of false charges or similar harm. The applicant may have to pay some kind of fees in the future, too. However, 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), or being 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)).

11. The Tribunal finds that the applicant is not subject to any false, politically motivated criminal charges or any associated legal 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.

12. 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

13. The Tribunal has considered whether on the evidence before it, that 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.

14. The Tribunal refers to the findings of fact above, in particular its assessment of the applicant’s profile and future conduct. 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 person who has some low-level support for the BNP locally (but no further involvement with the party), 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.

15. Implicit in the applicant’s claims is a broader concern about Bangladesh’s political violence, corruption and living standards. The Tribunal is not satisfied that the differential in living conditions between Australia and Bangladesh involves ‘significant harm’ as defined in s.36(2A) of the Act. 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.

16. 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).

    Conclusion

17. 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).

18. 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).

19. 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

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

    James Silva
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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.

    
    

leaders, factions, associate organizations and activities; treatment of members and supporters by authorities (2007-September 2012), BGD104178.E, 21 November 2012: <CIS29952> ;  Bangladesh Nationalist Party 2009, Bangladesh Nationalist Party-BNP: Constitution, 8 December 2009, p.9: <CISE1310071575;  Immigration and Refugee Board of Canada 2014, BGD104933.E Bangladesh: Roles and responsibilities of the executive members of the local
branches of the Bangladesh Nationalist Party (BNP) and the Jatiyatabadi Juba Dal (Bangladesh Nationalist Youth Party) (2010-August 2014), 15 August, pp.2-3: <OG61C530220> ; ‘No age bar for youth organisation leaders’ 2015, The Report24.com, 29 October: <CXBD6A0DE17015> 62 ‘Arrest warrant against Jubo Dal president Alal’ 2015,