1512023 (Refugee)

[2018] AATA 2906

1512023 (Refugee) [2018] AATA 2906 (2 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1512023

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Angela Cranston

DATE:2 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 July 2018 at 3:07pm

CATCHWORDS
Refugee – Protection visa – Bangladesh – Political opinion – Active Bangladesh Nationalist Party (BNP) member – Officer of the BNP party union – Fears abuse by Awami League supporters – No experience of harm in Bangladesh – Credibility issues – Inconsistent information about the BNP – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 45AA, 65, 91R, 91S, 499
Migration Regulations 1994, r 2.08F Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2.    The applicant who claims to be a citizen of Bangladesh, applied for the visa on 1 July 2013. In his application, the applicant claimed the following:

I was born in [Town 1] , Bangladesh on [date] .

I am an ethnic Bangladeshi of Sunni religion.

I grew up in [Town 1] in the Kustia district of Khulna, Bangladesh.

My father owned a [store] until it was vandalised in 2009. Although my father has also always worked [in another role].

My mother is a [occupation].

I am single and have one younger [sibling].

I completed about 5 years of primary school and 5 years of secondary school education in the Kustia District of Khulna. In [year] when I left school I began working for my [father].

In December 2009 I began work as a [occupation] in Dhaka where I worked until I left Bangladesh. I also worked briefly for one month in [Country 1] for [a] company but I could only work in [Country 1] because my employment agent gave me an ID card with an alias name of [name deleted].

Problems in Bangladesh

My first problems began in 2008 when the Awami League political party came to power. I had been associated with the Bangladesh Nationalist Party (BNP) since high school and after joining in 2005 I became an active member.

My friendship circle from high school comprised of supporters of the BNP who were well known for their political opinion around the local community. This was also how I first learnt about the party and became involved.

After joining in 2005 I was an active member of the BNP who regularly attended meetings with my friends as arranged by people I knew in the party. I also used to help with organising BNP social activities in the community. If I was told there was to be a meeting I would help organise and talk to people to join in the meeting.

When the opposing Awami League party won the national Bangladesh election in December 2008, supporters and officials of the Awami League party started targeting members of the BNP in violent ways.

In 2009 the situation grew worse and I know of BNP members who were abused, assaulted and tortured. As someone who had been involved in the BNP I lived in fear that the same thing would also happen to me and so I tried to keep a low profile so I would be safe.

However, after some time Awami League party supporters came to my father’s [shop] looking for me and tried to extort money from my father. When my father refused to pay, they ransacked the shop and threatened that they would kill me if they found me.

After this my father reported the incident to the police this and get the Awami League officials. They attacked our home in response to my family contacting the police and tried to find me so that they could cause me harm.

Because I was a BNP member, I was their target and so my family were not hurt. However, because I was not home at the time, the Awami League officials threatened my parents that serious harm would come to me if I was found.

When I learnt about this happening from my family I fled from my house as I feared they would kill me. In December 2009 I consequently fled my village to go to Dhaka and after that I have not returned home because I fear I will not be safe there.

During my time in Dhaka I often used to meet or come across people from my village and I learned from them that the Awami League supporters were still looking for me.

I was afraid that people I spoke to might pass on my location to the Awami League and so after some time I left Dhaka due to fear that the Awami League might follow me there.

I did not feel secure in Dhaka and only remained there because it was impossible for me to get back to my hometown. Also at that stage I had not wanted to move too far away from my family but after some years I realised I had no choice I wanted to live a free life and feel safe.

After I realised it would not be safe in Bangladesh my father made the arrangements for me to escape without having trouble by arranging with an agent to create a false passport for me to travel to [Country 2].

I left Bangladesh for [Country 2] in December 2012 from [an]International airport. As part of the arrangements made by my father for my false passport was also taken to [Country 1] from [Country 2]. My uncle then made the arrangements for me to come to Australia while I was in [Country 1].

I thought I would be safe in Australia because during my time in [Country 1] I heard that Australia provide shelter for people who do not have security in their life. I also knew Australia was far away from – and so it made sense that I would be safer there.

My father sold some [of his assets] to raise the money to give to my uncle to pay for the place on the boats to Australia.

I transited through [Country 1] and [Country 3] before arriving in Australia.

If I was to be returned to Bangladesh I fear the supporters of the Awami League will harm me or I will be killed due to my political involvement.

3.    The delegate refused to grant the visa on 18 August 2015.

4.    Prior to hearing, the applicant submitted the following documents:

Membership receipt in the applicant’s name from the Bangladesh Nationalist Jubodal Central Office dated [February] 2005

Document identifying applicant as Joint General Secretary Goabaria of the Bangladesh Nationalist Jubodal on [date] January 2005

5.    The applicant appeared before the Tribunal on 10 May 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

6.    The applicant stated his English statement had been read back to him in Bengali and was correct. His forms were also translated back to him and were correct.

7.    The applicant stated he obtained his highest qualification (year 10) in [year] in district Kushtia, Khulna. His last address in Bangladesh was Dhaka where he lived for 3 years and before that he was in his home village of [Town 1] where his family (his parents and younger [sibiling]) stilled lived.

8.    The applicant stated he was influenced by school friends to join the BNP in 2005. When asked why he had not joined earlier, he stated from 2005 he was with friends and used to help them out but it became more formal because his friends used his shop and when the committee was formed his name was included.

9.    The applicant stated he did not have contact with the BNP in Dhaka but had contact with BNP people from his village. He also stated that he was not currently a BNP member but in his mind he was. He then stated he was associated with the BNP in Australia and was on their member list. He confirmed that he was a BNP member from 2005 to 2009 and paid 15-20 Bangladeshi taka once to fill out the forms. He also stated when the party committee was formed he spent money but after that there were no membership fees to maintain membership. The Tribunal put to him that it understood there was an annual membership fee. He agreed and said the committee was formed every year.

1. The applicant stated the BNP flag was a rice plant and was golden in colour. The Tribunal put to him that it understood the flag was red over green with a rice stalk. He stated that was the colour of the Bangladesh flag.

2. The applicant stated that in his village and at the union level, he met, marched, organised and communicated with people for the BNP.

3. The applicant stated that in 2005 he became [an officer position]of the BNP Party Union. When asked why that was not in his statement, he stated he said he was actively involved which meant he worked in that position. The Tribunal put to him that the documents he had provided suggested that he was appointed [an officer position]on [date] January 2005 but his BNP membership card was dated [date]February 2005 and asked how was it that he was appointed to a BNP position before he joined. He stated the committee was formed in January and the cards in February were made according to a list.

4. The applicant stated that for the last five years there was no national election but before that, [Politician A]represented his area. When asked to name those representing his area in National Parliament, he stated [Politician B](Awami League), [Politician C](Awami League) and [Politician D]was the Chairman. The Tribunal put to him that [Politician D]was not a Kushtia (his area’s) representative.

5. The applicant stated he came to Australia because he had always mixed with a crowd that was popular with the BNP and he was well known by the Awami League who knew the popular people and those holding BNP positions. He stated that he used to work in his father’s shop and the shop was targeted because it was the BNP meeting ground. He stated he was in hiding and they attacked the shop and threatened his parents telling them they would beat him. He also stated they wanted money and subsequently ransacked the shop. He stated they never threatened him personally because he hid in his village. He also stated his father reported the Awami League to the police and when the Awami League knew that, they ransacked their house and threatened his parents and said that if they caught the applicant he was finished. He also stated that when he heard that he moved to Dhaka and never returned. When asked if he had any issues in Dhaka he stated the people who had attacked his shop and house had associates or friends and sometimes he would see them in Dhaka. He was also told not to return to his village by political and non-political village people who said he would be attacked if he returned. The Tribunal put to him that he managed to live in Dhaka for three years and had contact with village people including those he had no idea about their political affiliation. He stated he was always in fear that the people who knew him would somehow tell the people who were looking for him his whereabouts.

6. The Tribunal put to him that he did not seem to know that there was a BNP annual membership fee, that his documents seemed to suggest that he became the joint general secretary of the BNP union before he became a member, that he didn’t say in his statement he was Joint General Secretary, and the Tribunal may not be satisfied that he knew who represented his area and was currently in the national parliament. He stated he did not mention his position because it was not a significant role, that he had identified three parliament names and that the BNP fee was only paid when the committee was formed. The Tribunal also put to him that his documents seemed to suggest that he became a committee member before he joined the BNP. He stated the documents represented when the committee was formed and when the card from the membership list was made.

7. The applicant stated in Dhaka he was always in terror that someone who knew him would tell others his address. The Tribunal put to him that it had to consider whether he was a member of the BNP, and whether he was attacked and fled as a result. The Tribunal said that even if it accepted that, he had spent three years in Dhaka, he was not involved with the BNP and did not have any problems there. He stated there was still a risk and that if he returned to Bangladesh he would see his parents in their village and would be targeted.

Country Information

1. According to research prepared by the Canada Immigration and Refugee Board of Canada 31 August 2015, Bangladesh: Bangladesh Nationalist Party (BNP), including its structure, leaders, membership and membership documents, factions, associated organizations and activities; treatment of members and supporters by authorities (September 2012-2015),  Refworld, the BNP's Constitution states the following regarding applications for party membership:

Membership:

5. (a) Qualification for membership

Any Bangladeshi citizen of the age of 18 years or above can be primary member of this party. The aspirants have to declare adherence to the party's proclamation, constitution and programmes.

The application at schedule 1, form 'a' of the constitution will be filled up for primary membership. This form will be available at the party office. No other form will be accepted for membership but when not available, printing of same form will be allowed for application of membership,

If the form is accepted for consideration, identification (Schedule 1, Form 'kha') will have to be collected as evidence.

Subscription fee is 5 [Bangladeshi Taka, BDT] [approximately C$0.09] only for primary membership. Annual subscription fee after getting membership is 5 [BDT] only. The subscription from the members will be taken by receipt and the receipt will be provided from the party's central office.

1. According to Flags of the World, the BNP flag is red over green flag with a central emblem of a rice plant, with star above

2. According to , the 10th Parliament Members include the following Kushtia representatives:

   Md Rezaul Haque Chowdhury

   Hasanul Haq Inu

   Md Mahbubul Alam Hanif

   Abdur Rouf

RELEVANT LAW

1. 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

1. 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).

2. 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.

3. 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.

4. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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

1. 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’).

1. ‘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.

2. 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

1. 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five refugee Convention reasons 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.

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

4. The applicant stated in his protection visa application that he had been associated with the Bangladesh Nationalist Party since high school and that after joining in 2005, he became an active member. He also stated he regularly attended meetings with his friends and helped with social activities and that as someone who was involved in the BNP, he was targeted after the Awami League Party supporters came to his father’s [shop] looking for him and tried to extort money and then attacked their home. He also claims to have fled from his house and consequently fled to Dhaka.  However at hearing he stated that from 2005 to 2009 he was a BNP member, that in 2005 he became an active member and was Joint Secretary General. In addition, documents he gave to the Tribunal suggests that he was appointed to the position of Joint General Secretary on 10 January 2005 but his membership receipt was dated 10 February 2005 which suggests he was appointed to a BNP position before he joined. When this was put to him at hearing, the applicant stated that the committee was formed in January and according to a list, the membership cards were made in February. The Tribunal has considered this but does not accept the applicant’s evidence that his membership as evidenced by a document identified as membership receipt would date from when his card was made as opposed to when he paid to become a member. In reaching this conclusion, the Tribunal has considered whether the applicant is credible and in doing so, it has also considered that in his written statement he failed to mention he was Joint Secretary General. When this was put to him, he stated it was not a significant role and that he had mentioned he was an active member. The Tribunal does not accept that if he were Joint Secretary General, he would not have mentioned that in his statement. That and the discrepancy in the documentation that suggests he became Joint Secretary General before he became a member leads the Tribunal to find it is not satisfied he was Joint Secretary General or indeed a member of the BNP. In reaching this conclusion, the Tribunal has also taken into account that the applicant was unable to identify until told that there was a BNP annual membership fee. In addition, he was unable to identify the colors of the BNP flag.

5. The Tribunal has also taken into account that when asked to name his national parliament representatives, he stated that there were four or five members representing the district of Kushtia but at hearing, he was only able to name two of those representatives. The Tribunal considers the name of the applicant’s representatives in National Parliament is a somewhat basic question for one who is allegedly interested in politics or politically active. While not conclusive, the applicant’s lack of knowledge about his national parliament representatives as well his lack of knowledge about BNP membership and its flag means that the Tribunal is not satisfied that the applicant has been associated with the Bangladesh Nationalist Party BNP since high school, joined in 2005 and became an active member.

40.   In sum, the Tribunal does not accept that the applicant is credible or that he has been associated with the BNP since high school or that he joined the BNP or became an active member or held office. Given its overall credibility concerns, neither does the Tribunal accept that the documents the applicant produced are evidence that the applicant is either Joint Secretary General or was a BNP member. Neither does the Tribunal accept that the applicant was targeted by the Awami League party supporters or officials or anyone else because of his political activities. It follows that the Tribunal does not accept that Awami League party supporters came to the applicant’s father’s [shop] looking for him or ransacked the shop and threatened the applicant or that after his father reported the incident to the police, the Awami League supporters attacked the applicant’s home. Neither does the Tribunal accept that Awami League supporters continued to look for the applicant or that the applicant fled to Dhaka from his home town or that because he did not feel secure, he fled Bangladesh. Neither does the Tribunal accept that he is or was associated with the BNP in Australia and was or is on their member list.

41.   The Tribunal has concluded that the applicant has not in the past and will not in the future be motivated to engage in political activities of any kind. The Tribunal also finds that nothing in the applicant’s past suggests to the Tribunal that there is a real chance of being targeted by AL activists or anyone.

1. For the reasons set out above, the Tribunal does not accept that if the applicant returns to Bangladesh now or in the foreseeable future that there is a real chance he will face serious harm amounting to persecution for any other refugee reason.

2. 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).

3. 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). On the basis of the applicants' lack of credibility, the Tribunal has rejected the applicant's claims that he was or is associated with the BNP. Accordingly, neither is the Tribunal satisfied that as a result of his alleged affiliation with the BNP, there is a real risk that he will suffer any harm, let alone significant harm as defined in ss.36(2A) and 5(1) of the Act.

4. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

5. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

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

Angela Cranston
Member