1511841 (Refugee)

1511841 (Refugee) [2018] AATA 3724 (7 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1511841
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Meena Sripathy
DATE:7 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 07 August 2018 at 2:16pm
CATCHWORDS
Refugee – Protection visa – Bangladesh – Political opinion – Bangladesh National Party – Religion – Supporting religious tolerance – Supporting Hindu activities – Particular social group – Wealthy business owners – Perceived wealthy returnee from the west – Physical violence – Extortion – Attacks by Purba Banglar Party – Threats of false criminal charges – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36, 45AA, 65, 91R, 91S, 424A, 499
Migration Regulations 1994 (Cth), r 2.08F, Schedule 2

CASES
MIMA v Rajalingam (1993) FCR 220
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Bangladesh, applied for the visa on 5 July 2013 and the delegate refused to grant the visa on 6 August 2015.
The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.
The applicant appeared before the Tribunal on 20 March 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant was represented in relation to the review by his registered migration agent, who was present by telephone.
The issues in this case are whether the applicant has a well-founded fear of persecution in Bangladesh for one or more of the five reasons set out in the Refugees Convention (s36(2)(a)); and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh there is a real risk that he will suffer significant harm (s.36(2)(aa)).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived by boat to [location], Australia [in] December 2012. In his application for a Protection visa, the applicant indicated his name as [one name] and did not provide any other names or family name. He subsequently provided a scanned copy of his birth certificate and chairman’s certificate, which were both translated. The birth certificate referred in English to his claimed name and boat ID number. The translated version of the document indicated his name as [full name]. The applicant’s documents were assessed by the Department and it accepted, at that point in time, his identity as claimed.
The application form indicates he is [an age] year old single man, born in [Village 1 in] Jhenaidah District, Khulna Division, Bangladesh. He has parents, [and specified family members], all of whom except [one] brother are married, and all reside in Bangladesh. He provided two residential addresses in Bangladesh, one from birth to 2007, and the other from 2007 to 2012, indicating he relocated to avoid paying taxes to local extortion groups. He departed Bangladesh in November 2012, travelling through [specified countries] on route to Australia, where he arrived [in] December 2012. He indicates he completed primary and secondary school, between [specified years]. He indicates he was a trainee recruit in the Bangladesh Army for one and a half months in [year], and following that until 2012 he was self employed in retail trade in [Village 1].
In a Statutory Declaration dated 1 July 2013, the applicant provided the following information relating to his protection claims:
·His father was wealthy, owning farm lands, [and specified businesses] from before the applicant’s birth. Because of his involvement in business, the applicant’s father was active in promoting the rights of small business owners and did so through political involvement as a member of the Bangladesh National Party (BNP).
·Whenever the BNP was in power, the applicant’s father was able to secure a seat as a member of the union council for the local area (known as [area name]). In this capacity he made decisions which impacted development of local resources, roads, infrastructure and education (among other things) using government funds.
·When the BNP was not in power, his father would be harassed, harmed or detained for several days as punishment for not favouring the Awami League members when in power. The applicant claims that as a matter of fact his father did not favour any individual based on party, and he made enemies because he did not provide favours.
·The applicant claims on many occasions while he was growing up (approximately three or four times) he was arrested by the police, held at the police station and beaten and harassed until his father and his associates arranged for payment of bribes. He believes he was harassed because of his father’s wealth and membership of the BNP. His father was also regularly extorted by the local police, but largely avoided harm during periods BNP was in power.
·The applicant started working and managing his family’s [shop] in [Village 1] from around 1998 and from this time he was exposed to extortion. His father told him as shop manager it was his duty to handle these issues. The ‘Haque group’ would come to him approximately once a month - first at the shop and if he was not there, at his home - demanding money and he had no choice but to comply for fear of harm to him or his shop.
·In or around 2007, he stayed at the house of his Hindu friend, [named] on a night when the Haque group came to his family home. His father told the Haque group that he was not at home and they told him that the applicant would have to approach them to pay the money. When the applicant went to pay the money later, the Haque group were prepared to accept less. In this way, by staying away from home at his friend’s home, the applicant managed to save on extortion payments.
·In December 2008, the Awami League swept to power in Bangladesh national elections. His father was detained by the police, beaten and held for several days before his BNP colleagues arranged for payment of a bribe for his release.
·From 2008-2012 the applicant continued operating his family business, paying extortion amounts to the Haque group and his father avoided further harassment from the police by routinely paying them bribes.
·Although he is a devout Muslim, the applicant grew up with several Hindu friends in [Village 1] and on many occasions was invited to special Hindu events such as pujas. While previously, as Bangladesh was secular, attending pujas was not problematic, but gradually religious tensions began escalating.
·On [a date in] August 2012 the applicant attended a local puja upon invitation from some Hindu friends. They spent the day watching the religious ceremonies and sharing in the festivities. In the evening time musicians came to continue the party, and shortly thereafter some men from the local mosque came and told revellers that the puja was inappropriate, too loud and should not be undertaken in the local Muslim village. The applicant indicated to the other Hindu revellers to stop the puja at this time as it was nearing the evening prayer of Maghreb. He suggested they attend the local mosque, finish prayers and then later at night they could recommence the festivities. The other revellers agreed to this. After prayers at the mosque he went home.
·A few hours later, after the last prayer of the night, he was called by his Hindu friends and asked if he could go on stage and talk about tolerance and harmony between Muslims and Hindus. He agreed to do this and got up on stage and greeted the crowd with Islamic and Hindu greetings and spoke about tolerance and acceptance. The crowd cheered after his speech and celebrations continued until 4am with music, dancing and food.
·On or around [two days later] he spent the night at his family home in [Village 1]. At about 2 am, the applicant answered a knock at the door to several masked men. He believed they were from the Haque Group seeking extortion money. He followed them into a secluded bush area and then asked what was happening. They beat him on the head and slashed his [body part] with a knife. They continued to beat and hit him on the floor, tied his hands together. One of the men crushed his fingernails with pliers and another threatened to shoot him. The applicant begged the men to spare his life and asked them why they were doing this. They said that they were from the youth group of the Purba Banglar party and they were punishing him for speaking for the interests of Hindus as a Muslim and for becoming an infidel. The applicant said he had done nothing against Muslims and was simply preaching tolerance and begged them not to hurt him but they continued to beat him. He promised to pay them money if they released him. They demanded [amount] lakhs but they agreed on [amount] lakhs and told him to leave the area after payment. After this he was left there and fell asleep or lost consciousness, he cannot recall.
·The next day he was taken to a local hospital by a villager and remained at the hospital for one month. He attaches a letter from [Doctor A] who treated him at [Hospital 1].
·He was released from the hospital [in] September 2013. He told his father what happened and the threat from the Purba Banglar party. They received a phone call from men who identified themselves as his attackers demanding the money he had promised. His father indicated that he did not have the [agreed amount] necessary to pay them and suggested he pay [a lower amount] and the remaining in instalments. The men agreed to this amount and indicated that the applicant should leave the area immediately as they had promised their bosses he would be killed. The applicant immediately began hiding in his family home.
·The applicant’s father knew the applicant would be unsafe throughout Bangladesh. The only way to pay the Purba Banglar party was to sell the family business. However, his father knew that once he sold the business he would no longer have financial power to protect them from the Awami League. The applicant’s father sold the family business and contacted a people smuggler to arrange for the applicant’s escape from Bangladesh.
·The applicant travelled to Cox’s Bazaar [in] November 2012 and boarded a smugglers boat to leave Bangladesh. He arrived in Australia [in] December 2012, after transiting through [specified countries].
·Shortly after the applicant departed Bangladesh, members of the Purba Banglar party members arrived at his family home and asked his father for the remaining amount of money. Initially his father tried to stall them to avoid paying them back. When they discovered he had fled the country they demanded immediate payment. When he told them he had sold the business to pay for the applicant’s journey, they became angry and threatened to confiscate his land until the applicant sent back enough money to pay the debt.
·In or around February 2013, the applicant’s father was arrested by local police and detained for two nights for being a religious extremist. The applicant believes his father was being harassed because he was unable to pay regular bribes since selling the business. His father was released after a close friend in the council union paid a bribe, but the friend said he couldn’t continue to do this. The applicant’s father relocated his [specified siblings] to Dhaka and they are now in hiding, unable to work. He believed because he is elderly and his daughters are women, they would not be harmed.
·To this day members of the Purba Banglar continue visiting the applicant’s father’s home, demanding that the applicant work in Australia to pay back the debt. The local authorities under the influence of the Awami League have also continued harassing his father, warning him if he does not restore his finances and pay them bribes as he used to, they will lodge fraudulent criminal charges against him, the applicant and his siblings. The applicant is afraid that if they lodge these cases it does not matter where he or his brothers relocate to in Bangladesh.
·The applicant claims he and his brothers are being threatened because of their relationship with their father (and the BNP). He fears being detained, tortured, abused and/or killed. He fears harm by the Purbar Banglar party, the Awami League, extortion groups and corrupt government institutions (including but not limited to the police).
·He fears harm and mistreatment on the basis of his real or imputed political opinion (given his father’s membership of the BNP and former union council position) and also religion, due to his belief in religious tolerance and acceptance. He fears harm from groups who do not believe in secularism. He also fears harm on the basis of his membership of a particular social group as a person who has held information adverse to the interests of the Awami League in Bangladesh, as he has information about police corruption and extortion.
The applicant was interviewed by an officer of the Department and a copy of the audio recording is included in the Department file. The Tribunal has listened to this recording. Details of information provided at the interview are included in the delegate’s decision record. Of note, the applicant provided the following information and made further claims at the interview:
·     His father passed away by natural causes [in] September 2014
·     He claims that he was involved in political activities himself as a member of the student wing of the BNP from 1998 until his departure from Bangladesh
·     He stated that he does not know who the people who attacked him on [that date in] August 2012 were and this is why he is afraid to return to Bangladesh.
Included in the Department file is a copy of notes of the Entry Interview held with the applicant [in] December 2012. Notes of the interview record that he stated he left his country for economic reasons as he could not make a living from the shop he was running. In response to all questions about his political involvement, membership of social or religious groups, contact with police and local group activity he responded in the negative.
The delegate’s reasons also refer to a further interview the applicant had on 11 April 2013 while in immigration detention with a case manager. The Tribunal notes that there are no records of this interview in his Departmental file. The only information about this interview is what is recorded in the delegate’s decision record. This states that he provided the following further information :
·His father was imprisoned for 8 years and was then involved in politics.
·Police arrested family members several times.
·Terrorist groups came at night demanding money from them, including Purdo Banglar Communist Party, Shorbohara Party, Haque group.
·He was kidnapped and beaten and a demand made to pay [amount] takas but only paid 100,000.
·His father sold the shop and he could not stay in Bangladesh.
Tribunal hearing
At the hearing the applicant told the Tribunal he is currently living in [Suburb 1], sharing a house with [number] other Bangladeshi nationals, and is working as a casual cleaner at [another suburb]. This is the only job he has had since coming [from interstate] around 2 years ago. He works up to 30 hours a week, but some weeks he gets no, or less, work.
He provided the following information about his family in Bangladesh. He has his mother and [number] siblings (his [sister], [named] is deceased). His father died [in] 2014, while in police custody. The Tribunal noted that he mentioned his father’s death at his department interview in July 2015 but he did not say he was in custody at the time of his death and asked why he did not mention this detail. He said he was not asked specifically about that and so he did not mention it. He had medical issues from which he died but he was arrested and was in custody at that time of his death. He added that his father had been arrested many times in the past.
His mother lives in a rented house, alone, in a district neighbouring their home village. She moved about one and a half years ago. His brothers, who live in Dhaka ([distance] away), visit her from time to time. No one lives in the family home in the village. It was in his father’s name and now belongs to himself and his brothers. The applicant provided the following information about his siblings’ circumstances. [One] brother is married but has no children. He is not presently working. He previously had a business in their home village. He had a [specified business]. About two and a half years ago he contested elections in their area and as a result of problems following this election, he had to leave the village. He has warrants out for his arrest. He is in Dhaka to avoid this. The applicant stated that it is a political matter. The Awami League files cases against their opponents. He does not know the details, other than that one matter involved a fight that broke out and his brother was among [number] people implicated and he went to Dhaka to hide from this, about 2-3 years ago. The applicant said this was the first time his brother contested the Union Parishad election in their area. Before that it was his father who was involved in the Union Parishad. He was previously the Chairman. The last time his father was elected was around [year].
[Another] brother is also in Dhaka. He is married and has [children]. He owns a [business]. [Another sibling works] in Dhaka. [Deleted.] [One sister] lives with her husband and [children] in the same family village. Her husband was previously in [Country 1] but he is presently visiting Bangladesh. The Tribunal noted he referred at the Department interview to this brother in law being convicted of a murder charge and fleeing to [Country 1]. He confirmed he was in custody and released on bail and escaped to [Country 1] while on bail, about 11-12 years ago. The case against him has since been negotiated and settled and this brother in law no longer has any issues in Bangladesh and is able to return. Another sister lives in Dhaka with her husband and child. This brother in law is in Dhaka in hiding due to an outstanding warrant against him in relation to a missing person, relating to an incident some 12-13 years ago. The applicant stated there is no connection between the pending charges against both his brothers in law, they relate to separate matters. [Another sibling] is married with [children] and lives in [a neighbouring village]. [Their family] was previously overseas but has since returned to Bangladesh and [have specified businesses].

The applicant confirmed that he did not complete his secondary schooling and does not have records of his school certificate examination because he did not do it. He only studied up to [level]. After he left school he went to stay at the home of his [sister]. He was sent to stay there because his father had a number of pending matters against him and people were always coming to their house and interrogating them. So for this reason they decided to send him to Jessore District to avoid any problems. The Tribunal asked what about his other siblings? He said his sisters were all married and living with their husbands by then and [his] brothers were young and stayed with his mother. The Tribunal asked the applicant when [his] sister passed away. He said she had already passed away by this time. She died in [year]. Her husband remarried after some 7-8 months and he stayed with his brother in law, new wife and [their children]. The applicant then stated that in fact he just went there from time to time when there were troubles at home. Mostly he was staying in his family home. He was not working or studying at this time. He did not work until 2006, when he began helping out in his father’s shop selling [products]. There were others working at the shop, he was not in charge. He just came and helped out on occasion. He was not paid money, he was supported by his father throughout this time. This was the only business his father owned. He also had agricultural lands and earned income from his lands. His father did not work in the shop himself because he was involved in politics and doing other things. He was detained by police many times.
At this point the applicant said his father was in jail for 8 years from [specified year] to [year]. They were told that he was involved in politics and that his imprisonment had to do with his politics. The Tribunal noted he referred to his father being imprisoned for murder at the Department interview and asked if this was correct. He said he was implicated in a murder but the applicant understands that he did not do it.
The Tribunal asked the applicant why he came to Australia. In response he recounted the following. In his village area there was a Hindu function called the Manusa Puja taking place. Some people from the Muslim community attended the area where it was going on and objected to it. When this happened he received a phone call from some of his Hindu friends who told him about the objections and asked for his help. He attended and spoke to the people who were objecting. He explained to them that this function had been organised for a long time and they should allow them to have it. The Muslim objectors stated that it was time for their prayers so they should cease their function while the prayers are taking place and then can discuss it further. The applicant stated that he conveyed this to his Hindu friends and they agreed. He went to his Muslim prayers with the other Muslim objectors. After the prayers were finished, the Muslim objectors maintained their position that the function should not continue and told this to the applicant who was representing the Hindu group. They said to him, his father is an influential person in this community and he should help them to stop the puja from going ahead. The applicant refused, and told them that the Hindus should be allowed to have their program. The objectors were angry but they left and caused no further problems. The applicant stayed on until the end of the function which continued through the night. He stated at around 10pm he took the microphone and stated to the public that the Hindus should be permitted to enjoy their festival and the community should enjoy it with them. He said there were thousands of people present. After this the program continued peacefully.
The Tribunal asked for details about the date and time of day this was taking place. He said he cannot recall exactly but believes it was around June 2011 or June 2012. It was evening time, the function had not yet started. They were getting ready to start just after sunset. He confirmed that he only attended after he received the call from his friends in the evening when the Muslims made their objections. This was around the time of the evening prayers which he then attended.
Afterwards some people told his father that his son had become a Hindu and made other silly allegations because of his actions at this event. Following this, some people who claim to be members of a group known as Parbo Banglar Communist Party started to call his father and demanded money. When asked by the Tribunal why this group demanded money from his father, he said it was because of this event and the applicant’s support for it. The people who objected told the Parbo Banglar people and that is why they started demanding money from his father. About 2-3 days after the event, they called his father and demanded [number] lakh takas. His father refused but agreed to pay them [number] takas. He paid this smaller amount 2 or 3 times and asked them to leave him alone. The applicant stated that the people demanding the money were masked and his father did not know who they were. He said they told his father that his son should not continue living there or they will kill him. The applicant was then sent to his sister’s places in Dhaka and [a named village] and also to Jessore to hide. He was in hiding like this for some 5-6 months and then arrangements were made with an agent to send him out of Bangladesh.
The Tribunal asked the applicant what the Parbo Banglar group had to do with his involvement in the Hindu festival. He said the people who objected to his support for the event complained to the Parbo Banglar group and they took advantage of this to extort money from his father. He said even now they demand money from his mother, and she has had to sell some trees from the land to pay them money.
When asked why he cannot return to Bangladesh now the applicant said his father was a BNP person and was influential in the Union Parishad. After his father’s death his brothers have been implicated in various cases for no reason. The ruling party does not allow any opponents. The applicant believes that they will do to him as they have done to his brothers. His brothers have to live in hiding. The Parbo Banglar party have also on occasion demanded money from his mother on the basis that she has a son earning money overseas. If he returns to Bangladesh they have told her that she has to pay them [number] lakhs or he cannot return to his village. They have also taken all the land belonging to his father because that is what they do.
The Tribunal put to the applicant that his evidence at this hearing has been different in material ways from his claims made in his written statement and from oral evidence he gave at his Department interview. In his written statement he said he was running his father’s shop from 1998 until 2012 and while there he was visited by the Haque group who demanded payments from him. He said he would hide by staying at his Hindu friend’s home. In relation to the Hindu puja incident, he stated in his written claims that this took place on [a date in] August 2012 and that he participated in the event all day. He also made claims about an incident which occurred 2 days later [in] August 2012 when a group of masked men came to his house and took him to a secluded place, attacked him badly and demanded [amount] lakhs payment from him. He claimed he was hospitalised for one month after that. The Tribunal noted that he made no mention of this incident today and his evidence of his activities and circumstances were very different to his written claims. It noted that it was also different from his oral evidence to the Department. These inconsistencies may lead the Tribunal to have doubts about his credibility and it may reject his claims on this basis. In response the applicant stated that previously when he was at the Department interview, he just answered the questions put to him. This may explain the inconsistencies because he was just answering what was asked of him. So for example when he said he stayed at his sister’s place and his Hindu friend’s place, they are both true because he stayed at both places.
The Tribunal asked the applicant who are the Parbo Banglar party. He said they are a terrorist group which carries out movements at night and they always carry arms. They collect money from families and have been demanding money now from his mother because he is overseas. He believes he will not be allowed to return home unless he pays [number] lakhs to them.
The Tribunal asked the applicant if this is the case, why can’t he live in Dhaka as his brothers have done. He said he has a lot of land in his area. His mother and brothers are now living in different places. They are planning to send [one] brother to [another country] and have given an agent a lot of money for that purpose. If he can settle here, they will be able to sell the remaining land. If he returns to Dhaka he believes his brothers will be arrested and then they will come to know about him also. The applicant again referred to the case his brother is implicated in, together with some 70-80 other people, where a vehicle was burned down in [Town 1] about 2 years ago. When asked what this had to do with him, the applicant stated that his father is dead, and his [brother] is implicated falsely in case and it will be difficult for him to get his land if he returns unless he gets involved in politics. The Tribunal found a reference to an incident in [Town 1] in 2017 involving a vehicle which was burned out.[1] Even if this is the case he is referring to, there is no evidence to support his claims his brother is implicated in it, fairly or not.
[1] [Deleted.]
The Tribunal asked the applicant what harm he would face if he was not involved in politics. In response he said his father came from [another country] many years ago and had a long history of involvement in politics and the opposition, ruling party will always be against him. There are so many people implicated in political cases in Bangladesh and he is fearful this will happen to him. He is afraid if he returns he will have to surrender to terrorists or else become one.
The Tribunal put to the applicant that it is aware of independent information about the Parbo Banglar Party and accepts that it has been known to be active in his area of Khulna and south western Bangladesh and is involved in extortion of local businesses but as his family no longer has any businesses it may not accept he is at risk of harm from them were he to return now, or that he would not be at risk of harm from them outside his area. In response he said it would be very hard for him to survive in Bangladesh if he returned now unless he joined such miscreant groups.
The Tribunal put to the applicant that independent information before it indicates the government is and has been taking action against extremist Islamist and left wing groups such as Parbo Banglar Party. It asked him why he wouldn’t be able to be protected by police from criminal actions of illegal groups. The applicant said the government hasn’t taken action against real terrorists, instead they kill innocent people and give medals to terrorists. When asked what evidence he has for this, he referred to an incident where a Mr [name], Chairman of Union Parishad was shot dead recently and his killer said he was the son of a freedom fighter. The killer got an award for killing him. The Tribunal has been unable to find any reports of this incident to support the applicant’s claim.
The Tribunal noted that the applicant made claims of his own involvement in BNP at the Department interview and asked him to elaborate on this. He said he was involved in the student wing of the BNP, Chatra Dal and then he became chairman of the [named branch]. This was in 2006 or 2007, [number] years after he left school. He then said his involvement was in name only because his father was then main political player in the family and he did not do any activities. He didn’t really stay in the village because of his father’s problems.
At the conclusion of the hearing the applicant said that if he is permitted to live here he can bring his family members here and live peacefully.
The Tribunal confirmed with the applicant that in his account at the hearing of the events following the Hindu festival he did not mention any physical attack, he only referred to his father being asked to pay money and asked him if this was correct. The applicant agreed that this was correct.
The applicant stated that his father was an influential politician and the Purdo Banglar Communist Party was after him for money. If he returns to Bangladesh they will assume that he has money and will harm him for this reason.
Following the hearing, on 28 March 2018 the Tribunal wrote to the applicant under s424A and invited his comment on information which if relied on would, subject to his comments or response, be the reason or part of the reason for affirming the decision under review. The Tribunal put particulars of information provided by the applicant to the Department in his entry interview in December 2012 and also his interview with the delegate in June 2015 and explained how inconsistencies between this information and information provided in his written statement of claims and oral testimony to the Tribunal may lead the Tribunal to make adverse credibility findings and reject his claims on this basis.
To date the Tribunal has not received any response to this invitation or any further information or evidence from the applicant.
Independent information
Purba Bangla Sharbahara Dal (PBSD) or Bangladesh- Purba Banglar Communist Party (PBCP)
SATP describes the PBCB as among the many Maoist splinter organizations in Bangladesh. It was founded in the year 1968 following a split in the Bangladesh Communist Party (BCP). It has been outlawed since the time of the military regime of Zia-ur-Rehman. There has been a spurt in the activities of the PBCP since the beginning of the year 2002, in a reversal of trend[2]:
The PBCP has pockets of influence in south-west Bangladesh, bordering the Indian State of West Bengal. Its presence can be noticed in districts such as Khulna, Satkhira, Bagerhat, Magura, Meherpur, Narail, Kushtia, Jessore, Jhenidah, Chuadanga and Pirojpur.
Reports indicate that the PBCP primarily targets landowners and contractors and extorts money from them. It is believed that PBCP cadres harass businessmen for finances and torture people in remote villages. The outlaws are alleged to be indulging in settling land disputes in rural areas.
[2] see also Refugee Documentation Centre (Ireland) Legal Aid Board, Bangladesh, Does the East Bengal Communist Party have political aims or are the merely a criminal group with political pretensions; Is there evidence of the party kidnapping or falsely imprisoning minors >
Other sources also refer to the Purba Bangla Sarbohara Party ('East Bengalis Who Have Nothing') as radical Maoist movement[3] and ‘extreme left movement’, for example, a June 2002 a Reporters Without Borders report states that:
In south-western Bangladesh, after years of an armed conflict, some extreme left movements – those of the Purba Bangla Sharbahara Party (PBSP) in particular – have turned into mafia organisations . . . [4]
[3] UK Home Office 2002, ‘Proscribed Organizations’ in Bangladesh Assessment, October – Attachment 6
[4] Reporters Without Borders 2002, ‘Role played by organised criminal gangs’ in Escalating violence threatens press freedom, 17 June 2002, cited in Canada: Immigration and Refugee Board of Canada, Bangladesh: Information on goons/thugs/mastans, and the nature of their relationship to political and police authorities (1998-2003), 5 August 2003, BGD41618.E, available at: 5 June 2018]
SATP records a handful of violent incidents involving PBCP in recent years, including in Jhenidah District. The 2018 SATP Security Assessment for Bangladesh records a number of incident involving the targeting and killing of PBCP leaders and members in recent years.[5] The assessment reports that ‘Sheikh Hasina Wazed’s Awami League (AL)-led Government, which retained power winning the 10th General Elections held on January 5, 2014, has enormously consolidated its secular commitments through 2017, reining in Islamist extremist groups and targeting the Left Wing Extremist (LWE) movement in the country’:
Dhaka has also continued its campaign against the LWE movement. 15 LWE-linked fatalities were recorded, all of terrorists, in 2017. These included five PBCP ‘regional leaders’, Abdur Razzak (42), Jony Molla (31), Rakibul Hasan ‘Roky’ aka Bappi (35), Maidul Islam Rana (38) and Kohinur Rahmanaka Ketu (43); two PBSP ‘regional leaders’ Kubad Ali Sikder aka Kubad (40) and Nistar aka Jahidaka Nizam (40); two PBCP ‘local leaders’ Oltu Mondol (40) and Korom Ali (36); four PBCP cadres Bidyut Bachhar (46), Sheikh Abu Talha (22), Alim Uddin (46) and Lalon Mollah (40); and two PBSP cadres Moazzem Fakir (32) and Abbas Sardar aka Khokon (48). Similarly, there were 18 LWE fatalities, all of terrorists in 2016; and 17, all of terrorists, in 2015. Meanwhile, a total of five LW extremists including PBCP ‘operational commander’ Mohamad Dulla Sheikh alias Shamim (25) and two cadres each of PBCP and PBSP were arrested through 2017. There were 14 such arrests in 2016 and 10 in 2015.
Politically motivated violence
[5] >
In its 2018 Country Information Report, the Depart of Foreign Affairs and Trade (DFAT) states the following about politically motivated violence in Bangladesh:
Politically Motivated Violence (PMV)
3.59 Bangladesh is prone to high levels of politically motivated violence (PMV). PMV manifests regularly in the form of violent clashes between supporters of different factions of the same party (intra-party violence), supporters of rival parties (inter-party violence), and between party supporters and law enforcement agencies. Fatalities and serious injuries resulting from these clashes are common. PMV tends to peak during periods of heightened political unrest, including during elections, strikes, and blockades. It tends to be most prevalent outside Dhaka, particularly in northwest and southeast Bangladesh. According to Ain o Salish Kendra (ASK- a local NGO), 177 people died and more than 11,462 people were injured in 907 separate incidents of PMV in 2016, while 52 people died and 4816 people were injured in 364 incidents of PMV in 2017. In addition to those killed and injured in inter- and intra-party violence, these figures include those killed and injured in election-related violence, strikes, blockades, and clashes with law enforcement agencies.
3.60 The January 2014 national elections were the most violent in Bangladesh’s history, with months of PMV (including all of the forms listed above) leaving hundreds dead and thousands injured across the country. The violence resurfaced in January 2015 after the government decided to confine BNP leader Khaleda Zia to her party office in Dhaka on the anniversary of the 2014 polls. Local government and council elections in April 2015, December 2015, and March 2016 were also marred by violence. DFAT assesses that violence is also highly likely to accompany the next national elections in late 2018 or early 2019.
3.61 In recent years, the frequency and level of intra-party violence has far outweighed that of inter-party violence, particularly between competing AL factions. In 2015, ASK documented 226 instances of AL intra-party violence (resulting in 33 deaths) and nine instances of intra-party violence involving all other parties (no deaths), as opposed to 30 instances in total of inter-party violence (25 of which were between the AL and BNP) resulting in seven deaths. In 2016, ASK documented 88 instances of AL intra-party violence (resulting in 17 deaths) and 44 instances of intra-party violence for all other parties (resulting in five deaths), compared with 18 instances of inter-party violence (13 of which were between the AL and BNP), resulting in four deaths. Similarly, in 2017 ASK documented 150 instances of AL intra-party violence (resulting in 29 deaths) and 92 instances of intra-party violence for all other parties (resulting in nine deaths), compared with 29 instances of inter-party violence (resulting in 11 deaths).
3.62 DFAT understands that intra-party violence between AL factions has been the most common form of PMV largely due to the party’s complete control over state institutions in recent times. Competition between rival factions and candidates (including so-called ‘rebels’, who have contested local elections as independents) for lucrative contracts, tenders and appointments to senior party positions, has superseded ideological differences. This trend may shift in the lead-up to the next national elections should the BNP confirm its participation.[6]
[6] DFAT, Country Information Report Bangladesh 2 February 2018, pp20-21

Regarding the security situation more generally, the DFAT Report states:
2.29 The security situation in Bangladesh is volatile and can deteriorate quickly with little warning. Security threats include politically-motivated violence, particularly ahead of the next national elections in late 2018 or early 2019 (see Politically Motivated Violence (PMV)), terrorist attacks committed by Islamist extremist groups, criminal violence, and sporadic clashes in the Chittagong Hill Tracts (CHT) between indigenous groups and Bengali settlers over land ownership and usage (see Indigenous Peoples – Chittagong Hill Tracts (CHT)). Bangladeshi authorities have expressed concern that the large-scale influx into Bangladesh in 2017 of Rohingya from Rakhine State, Myanmar (see People who identify as Rohingya) may lead to additional security threats in the Cox’s Bazar district, including communal violence, people smuggling, drug and human trafficking, and radicalisation.
On the risk of harm on the basis of political opinion, DFAT’s report provides:
3.55 DFAT assesses that under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges and travel bans. Active members of opposition political parties and auxiliary organisations (see following section) who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. This risk is elevated around times of heightened political tension, including elections. Ordinary members of opposition political parties and auxiliary organisations who do not engage in political activities and demonstrations face a low risk of arrest, although this may vary according to location and timing.
On conditions for returnees, DFAT has no evidence to suggest that recent returnees from likeminded countries have received adverse attention from authorities or others:
5.23 DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia.[7]
[7] DFAT, Country Information Report Bangladesh 2 February 2018, pp36.
FINDINGS AND REASONS
A summary of the relevant law is set out in the Attachment to this decision.
Nationality
On the basis of his evidence to the Tribunal and identity documents produced and assessed by the Department, the Tribunal accepts the applicant is a national of Bangladesh and considers Bangladesh is the country of nationality and receiving country for the purpose of assessing his claims against the protection criteria.
Consideration of applicant’s claims
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).
In the present case the applicant’s claims are that he fears harm upon return to Bangladesh on the basis of his family affiliation with the BNP, arising from his father’s membership of the BNP and former Union Parishad Council position, and his own opinions on religious tolerance indicated by his actions in speaking out and supporting a Hindu festival in August 2012. He fears harm on the basis of his real or imputed political and religious opinions, and also membership of the particular social group of perceived wealthy returnee from the west. He fears harm, including in the form of extortion demands, from extremists associated with the Parbo Banglar Party, Awami League, extortion groups and/or corrupt government institutions (including but not limited to the police).
The Tribunal has carefully considered the applicant’s claims and all of the evidence before it, including his written and oral testimony to the Department and Tribunal as set out above. It has also considered independent information relevant to the applicant’s claims set out above.
The applicant’s evidence and claims regarding his past history and background before the Department and Tribunal has been inconsistent and contradictory in substantial and significant respects, leading the Tribunal to have concerns about his credibility and reliability as a witness and leaving it unable to be satisfied of the truth of his claims.
His evidence about his circumstances and activities between 1998 and 2012 was very different and inconsistent with information provided in his written statement and evidence to the Department. At the hearing he told the Tribunal that after leaving school his father sent him to stay with his [sister’s] husband and family because of problems he was having. He said he did not work at all until 2006 when he occasionally helped out in his father’s shop. However, in his written statement he claimed he ran his father’s shop from 1998 and was regularly subjected to extortion demands by the Haque group. At his entry interview he stated he ran the shop but could not make a living and made no mention of any extortion demands. Given the substantial inconsistencies in his evidence, the Tribunal does not accept that the applicant ran his father’s shop as claimed in his written statement, or that he was subject to extortion demands by any group in this context, as claimed.
Regarding his claims about the Hindu puja event, the account provided by the applicant in his written statement, oral evidence at the Department interview and oral testimony to the Tribunal were inconsistent and substantially different in material aspects, including the date and timing of the event, extent of his involvement and incidents following. Most significantly, he referred in his written statement and oral evidence to the Department to a serious physical attack on him some days after the event by individuals belonging to the Purba Bangla Party (though at the Department interview he said he didn’t know who these people who attacked him were) and that they demanded payment of [amount] lakhs from him. He claimed that he was taken to a hospital the next day and stayed there for one month. However in his oral testimony to the Tribunal he did not mention any physical attack on him after this event, but just that members of the Purba Banglar Party approached his father and demanded [a tenth of the amount of lakhs] from him. These significant inconsistencies in the applicant’s account of his claim leads the Tribunal to find him to be an unreliable witness and to reject his claims for lack of credibility. For these reasons the Tribunal rejects the applicant’s claims about his presence and involvement at a Hindu puja in August 2012. It also rejects his claim that he was physically attacked because of this involvement by members of the Purbo Banglar Party, that he was injured and subsequently treated in a hospital for one month, or that they demanded any money from him or from his father then or after. In making these findings, the Tribunal has considered, but rejects as non genuine, the letter submitted with his applicant purportedly from [Doctor A] of [Hospital 1].
The Tribunal has claimed that his father was wealthy, politically active for the BNP, and influential in local politics and regularly subject to extortions and politically motivated charges as a result. However, given the unreliability of the applicant’s evidence regarding material aspects of his own circumstances as indicated above, and the absence of any corroborating or supporting evidence, the Tribunal is also not satisfied of the reliability or truth of these claims. In any event, the applicant claims his father passed away in 2014 and therefore, the Tribunal finds that, even if he may have had a political or economic profile as claimed, he doesn’t any longer as he has passed away.
The applicant has also claimed that his brothers have been implicated, falsely, in cases by political opponents following their father’s death because of the father’s political profile and that the Parbo Banglar Party are making extortion demands from his mother because she has a son overseas. However, apart from his assertions, no other evidence in support of these claims has been provided. The Tribunal notes the applicant has made a number of unsubstantiated claims of serious charges and cases his relatives have been involved in, including relating to murder and missing persons, for which he has provided no supporting documentation or reports. He has provided no other evidence to support his claims relating to his late father’s political office or political affiliation. Given the Tribunal’s concerns about the applicant’s credibility and the reliability of his evidence (as indicated above), and that it would be reasonable to expect some documentary evidence of these matters to be available, the Tribunal is not prepared to accept these claims on the basis of his assertions alone. While the Tribunal accepts there is independent information to support that the Purba Banglar Party exists and its presence has been noticed in districts in South West Bangladesh (see above), including the applicant’s family district of Jhenaidah, and that it has been known to be involved in harassing landowners and businessmen and making extortion demands, it does not accept the applicant’s claims that this has happened to him or his family.
For all the reasons stated above, the Tribunal does not accept that the applicant was subject to extortion demands in the context of working at his father’s shop between 2008 and 2012, or that he spoke out in favour of religious tolerance at a Hindu puja or festival in August 2012 or that he was physically attacked, kidnapped, or had demands made of him or his father for money by Purba Banglar or another extremist party or group. It does not accept that the applicant is, or was, involved with the BNP or is in any way affiliated with or associated with the BNP as a result of his father or family connections. It does not accept that he was involved with the student wing of the BNP, Chatra Dal, or that he was chairman of the [named branch]. The Tribunal is not satisfied, on the evidence before it, that the applicant’s brothers have been threatened or falsely implicated in cases by political opponents because of BNP affiliation or that he will be for that or any reason, or that his mother has been subject to extortion demands by anyone or for any reason.
The Tribunal accepts on the basis of independent information (referred to above) that Bangladesh is prone to high levels of politically motivated violence, and that such violence tends to peak during periods of political unrest, including elections. It accepts DFAT’s assessment, given evidence of significant violence during elections in the recent past, that violence is also highly likely to accompany the next national elections in late 2018 or early 2019.
However, taking account its findings above, and country information and the assessment of risk (see paragraph 42 above) and the absence of any political profile on the part of the applicant, the Tribunal finds there is no real chance the applicant will face serious harm on the basis of his actual or imputed political or religious opinion or for any other reason, in the reasonably foreseeable future. Given the Tribunal has rejected the applicant’s claims that he has any actual or imputed political profile, it does not accept he will be politically active or affiliated with the BNP such as to face a real chance of harm on this basis, upon return in the reasonably foreseeable future. The Tribunal also takes into account that, upon returning to Bangladesh, his father has passed away and there is no family business to return to, which means he would not be at risk of harm in the form of extortion demands. It does not accept that he will be at risk of adverse attention from authorities or anyone else, or harm of extortion on the basis of being a returnee from the West.
Specifically, it does not accept that he will be at risk of harm from the Purbar Banglar party, the Awami League, any other extortion groups or corrupt government institutions (including but not limited to the police). There is no indication in the country information before the Tribunal that returnees, including failed asylum seekers, are subject to adverse attention from authorities or others. Having rejected the applicant’s claims regarding his past experiences, it does not accept he will face harm on the basis of having information adverse to the interests of the Awami League or relating to police corruption and extortion.
Having considered the applicant’s claims individually and on a cumulative basis, the Tribunal is not satisfied that there is a real chance the applicant will face persecution for reasons of his real or imputed political opinion, or for any other Convention based reason. Therefore the Tribunal is not satisfied that the applicant has a well-founded fear of persecution now or in the reasonably foreseeable future.
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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Complementary Protection criteria
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 has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in s36(2A) of the Act.
Having regard to the findings made above regarding the applicant’s circumstances and past experiences in Bangladesh and his background and profile, and country information indicated above, the Tribunal is not satisfied that there is a real risk the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to Bangladesh.
The Tribunal accepts that the security situation in Bangladesh is volatile and can deteriorate quickly with little warning and that political motivated violence is a security threat. However, having regard to the findings made above about the applicant’s past experiences and profile, and the country information before it, the Tribunal considers that to the extent that the applicant faces a real risk of significant harm as a civilian victim of generalised violence, it is one faced by the population of the country generally and not faced by him personally and on that basis there is taken not to be a real risk of significant harm in respect of him under s36(2B) of the Act.
For the above reasons the Tribunal is not satisfied, having considered his claims individually and cumulatively, there are substantial reasons for believing there is a real risk the applicant will suffer significant harm if removed from Australia to Bangladesh. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Meena Sripathy
Member

RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

[2018] AATA 3724

7 August 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction