1513242 (Refugee)

1513242 (Refugee) [2019] AATA 3412 (1 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1513242
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Nathan Goetz
DATE:1 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa
Statement made on 01 April 2019 at 2:50pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh National Party – youth wing – Jatiyatabadi Chhatra Dal – student leader – abduction and assault by Awami League supporters – implicated in false criminal cases – credibility issues – date of joining the party – knowledge of ideology and principles of the party – date of claimed assault – legitimacy of documents submitted to the Tribunal – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
On 24 March 2015 the applicant applied for the visa. He had an interview with the delegate on 4 September 2015 and the delegate refused the visa on 7 September 2015.
On 28 September 2015 the applicant applied to the Tribunal for a review of this decision. He attached a copy of the delegate decision to his review application form which was filed by hand.
The applicant appeared before the Tribunal on 9 May 2018 to give evidence in support of his claims. The hearing was conducted with the assistance of a Bengali interpreter and the applicant represented himself.
CONSIDERATION OF CLAIMS AND EVIDENCE
What are the applicant’s claims?
According to his written protection application, [the applicant] is a [age] year old male who was born in Minshiganj, next to Shaka in Bangladesh. He has a wife, son and daughter who remain in Bangladesh together with his parents and [several] siblings. He last arrived in Australia [in] February 2015 having travelled from Dhaka Airport on a passport that was issued [in] 2012. He entered Australia on a visitor visa which had been issued on 5 February 2012.
The applicant disclosed that his previous travel over the last 30 years (prior to coming to Australia) as follows: [Country 1] for business ([April] 2005 to [November] 2009); [Country 2] for a visit ([November] 2012 to [November] 2012); [Country 3] for a visit ([June] 2013 to [June] 2013), [Country 4] for a visit ([June] 2013 to [June] 2013); [Country 1] for business ([February] 2010 to [December] 2011).
With his protection visa application, he attached a letter from the President of the Student Party in the [Upazila 1] branch which stated that the applicant was a member of the National Student Party. The letter wrote that the applicant was a struggling student leader ‘in the street’. The letter stated that the applicant had been treated badly by false cases made against him by the dominant party of Bangladesh, so he was compelled to leave the country.
At the interview with the delegate, the applicant provided a letter dated 10 November 2014 headed “Bangladesh National Party” from an unnamed ‘convenor’ of the Central Committee in Dhaka of the Bangladesh National Party which stated that the applicant is personally known to the author, is a permanent citizen and national of Bangladesh by birth and that his nationality is Bangladeshi. The author wrote that he is an experienced political supporter of the BNP and is a [Position 1] of the BNP under [Upazila 1] in Munshiganj. The author wrote that his anti-party activities lead to people trying to kill him. The author wrote that he is a totally helpless young man and that he has no safety and security in Bangladesh and is in need of political asylum for safety and his life.
In his written claims (noting that the applicant answered most questions about the circumstances which gave rise to his claims with ‘refer to statement’), he wrote that he became inspired by the ideology of the Bangladesh National Party at the time that he graduated from secondary school in Bangladesh, and he became [Position 2] of the local union party. He wrote that ‘no sooner had he been selected for the [position], he was targeted by local Awami League members and their allies. He wrote that since that time, he has been threatened and harassed, which caused him to leave his village and take shelter in another place. He said that after a few days, people were sent to find him. He wrote that he escaped abroad because he could not find any safety.
The applicant wrote that he returned home and married his wife, but after his marriage, he was punished mentally and after a few days of marriage, he left his wife and escaped abroad. He wrote that he did return to Bangladesh but would travel abroad to hide. He stated that at the moment, the Bangladesh National Party have started a movement to protect democracy and the loves and rights of people. He stated that the ruling government has been mentally and physically torturing the leaders of opposition parties at all levels by filing false cases against them. He wrote that the law enforcement agencies and their agents were complicit in this activity. He wrote that he had been subject of several cases which accused him of killing people and committing arson. He wrote that he managed to escape to Australia under the pretext of travelling to watch the Cricket World Cup.
As noted in the delegate decision, the records indicate that the applicant arrived in Australia [in] February 2015 and [in] March 2015 applied for a protection visa.
The applicant provided a written submission to the Tribunal when he lodged his application for review. In that submission, he complained that the delegate decision to refuse his application mas made without any correct investigation into his claims and that the decision was based on very limited information about the atrocities committed about the Awami League supporters and leaders against Bangladesh National Party members and supporters. The applicant also contended that he did not understand many issues that were raised during the interview with the delegate. He wrote that many times the delegate said something but the interpreter did not interpret or kept quiet. The applicant wrote that many times he told the interpreter one thing and the interpreter did not tell the delegate the same thing. He claimed that the interpreter did not interpret honestly and truthfully. The applicant wrote that he is a supporter of the Bangladesh National Party and that he worked for that organisation. He said that he was confident that if he got the chance to explain he would be able to prove that he is a bona fide member of that organisation. He stated that he has a genuine fear of persecution and that if he was compelled to return to Bangladesh, he would face persecution.
What are the criteria for a protection visa?
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
What are the mandatory considerations that the Tribunal must consider?
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
What are the materials that are before the Tribunal when considering this application?
The Tribunal has considered the material contained in the [department file] and the Tribunal file 1513242 when considering the applicant’s claims.
Documents submitted to the Tribunal prior to hearing
A letter dated 25 March 2015 under the header of [Mr A] a lawyer of the Judge Court, Dhaka who wrote that the applicant is a permanent citizen of Bangladesh and that the applicant was the [Position 1] of the Bangladesh National Party under the [Upazila 1] Unit, Munshiganj and that the applicant was harassed many times and that the applicant was now involved in a political case which had been issued [in] 2014 . That case is pending in the lower court for trial and that a warrant had been issued against him and that the applicant is being searched for in Bangladesh. The author wrote that that the applicant had no safety and security in Bangladesh and that the author should try to take political asylum in any humanitarian country outside of Bangladesh for the safety of his life. The author wrote that the applicant should not come back to Bangladesh until the author provided further information.
A document titled “Warrant of Arrest” dated [June] 2014 from [a] Court of Dhaka for the case of “State against [the applicant] and others” ordering the arrest for the applicant to be produced in court.
A document titled “Order Sheet” dated [June] 2014 from [a] Court of Dhaka for the case of “State against [the applicant] and others” stating that the case involved ‘torture, broken, made fire, rioting case and anti-state case and that all accused persons are absconding’.
A document titled “First Information Report” dated [March] 2014 from the Duty Officer of [a Police Station] stating that the applicant and four identified other people and an unknown 10/12 accused persons had gathered at [an area] under [the Police Station] and were rioting and looting and that there was a clash between the police and the accused, which resulted in an attack on the police with deadly weapons, hockey sticks, rods and illegal arms. The report notes that the accused fled the scene but that the police obtained the names and addresses from witnesses and the police station records.
A document titled “Charge Sheet” dated [May] 2014 which states that the accused [in] March 2014 (together with other people) rioted, looted and took items from a shopkeeper. As well as set fire to a car and furniture.
A document (undated) under with the letterhead of the Bangladesh National Party which stated that the applicant was known to the author since the applicant was a student leader of the Bangladesh National Party Jatiyabadi Chatra Dal (the student wing of the Bangladesh National Party, also known by its English name of the Student National Party). The letter wrote that the applicant joined the Bangladesh National Party in 2004, and that at the time of the General Election of 2008, the applicant was ‘very instrumental’ in forming public opinion in favour of the party. The author, who did not provide his or her name in the letter, wrote that the author was selected as the [party candidate] in the parliamentary election. The author wrote that the applicant and his family actively took part in the election and because of this he and his family have been targeted by the Awami League supporters. The author wrote that there were life threatening attacks on the applicant and that is why he left the country. The author wrote that the applicant’s devotion and sincerity towards the party was remarkable.
A document (undated) by attested sometime in 2018 (specific date is unclear) which was a letter on the letterhead of the Bangladesh National Party that stated that the applicant was known to the author [Mr B]. The author identified himself as [Position 3] of the Bangladesh National Party for the district of Munshiganj. The document stated that the applicant had been a member of the Bangladesh National Party since 2010 and that he was elected as a general member of the National Youth Party of that district. The author noted that the applicant’s activities resulted in him being hunted by the Awami League and being implicated in false cases.
Documents submitted to the Tribunal after hearing
On 16 January 2019 the applicant emailed photos of documents which were as follows:
A document titled [First Information Report] which was, according to the document, submitted [in December 2018]. The information in the documentation was stated as follows: ‘to get the written complaint of the complaint and consider as a complaint and lodged at [Upazila 1] police station. The document lists six people as well as 5 unknown persons as the accused, and the applicant is listed among the known accused. The document states that the accused are charged with plundering goods and possessing explosive substances with intent to kill.
A document that is addressed to the Office-in-Charge of the [Upazila 1] Police Station with the subject of ‘Complaint’. The complaint is from a person who identifies himself as [Mr C]. His complaint is that [in] January 2018 Bangladesh National Party members raised a slogan against the Awami League Government in front of a primary school. The complaint details that there Banglladesh National Party members attacked the complainant and fellow workers of the Awami League who were holding a meeting there, and that the attack included [use of various weapons]. The complaint noted that the applicant [used a firearm] and threw [an explosive] in front of the meeting place before fleeing.
A document with the subject as ‘Order Sheet’ which provided that one of the applicant’s fellow accused had been arrested and brought before the court and remanded in custody with the next court date being [in] January 2019. This order was made [in] December 2018.
A document titled ‘Warrant of Arrest’ dated [in] January 2019 issued against the applicant for the offences referred to in the other documentation.
FINDINGS AND REASONS
The evidence before the Tribunal is that he is a citizen of Bangladesh and there is nothing before the Tribunal to suggest that the applicant has a right to reside in any other country. The Tribunal is satisfied that the country of reference for this protection application is Bangladesh.
At the hearing, the Tribunal discussed with the applicant his involvement with the Bangladesh National Party, his claimed incidents of past harm, his movements in Bangladesh, how he came to be in possession of documents which he submitted to the Tribunal, and how he came aware of claimed criminal proceedings which had been issued against him. The Tribunal raised its concerns with the applicant that it had about inconsistent evidence across his written protection visa application, the documents he provided in support of his claims, the evidence he gave to the delegate, and his oral evidence given to the Tribunal. The Tribunal adopted, where appropriate, the procedure under s.424AA of the Act to put adverse information to the applicant.
The Tribunal has considered the evidence that the applicant has provided to the Tribunal and has ultimately found that he is not a witness of truth. The Tribunal has made these findings for the following reasons:
Bangladesh National Party
The evidence provided to the Tribunal about when the applicant joined the Bangladesh National Party was inconsistent. The applicant’s written application said that when he passed his SCC in [year] from [a named] High School, he was inspired by the Bangladesh National Party ideology and joined the Bangladesh National Party. This letter was in conflict with a letter that the applicant had submitted to the Tribunal which stated that he joined the Bangladesh National Party in 2004, and another letter that the applicant had submitted which stated that he joined the Nationalist Youth Party of the Bangladesh National Party in 2010.
The applicant told the Tribunal when he joined the Bangladesh National Party in 1998, he joined the youth wing and then moved to the senior party four or five years after that. He told the Tribunal that the ‘Bangladesh Student Party’ was the Jatiyatabadi Chhatra Dal, which is the student wing of the Bangladesh National Party. This addressed the Tribunal’s concerns that the applicant had told it that he had never been a member of another political party, and the Tribunal accepts the proposition that being a member of the Bangladesh National Party could be considered as meaning membership of the student wing (Jatiyatabadi Chhatra Dal), youth wing (Jatiyatabadi Jubo Dal) or indeed any of their other auxiliary organisations.
The Tribunal raised with the applicant the inconsistent evidence about when he joined the Bangladesh National Party. The applicant stated that although he ‘started in 1998’ he did not ‘get the paper on the spot’. He said that he got ‘the paper later on’. He then told the Tribunal that people who work for the party are awarded much later on. The applicant’s response to the Tribunal’s questioning was vague and not very helpful. To the Tribunal’s way of thinking, the applicant, who has supposedly been involved with the Bangladesh National Party (and according to the written documentation, in a variety of positions within the organisation), would have been able to tell the Tribunal, with some clarity, when he commenced his involvement with the student wing of the party and when he commenced his involvement with the senior wing of the party. The fact that the applicant provided documentation which conflicted with the evidence that he gave when he started his party membership (namely, 2010), and then suggested to the Tribunal that he did not become a party member ‘on the spot’ in 1998 and became a member ‘later on’, suggested to the Tribunal that the applicant was inventing his evidence and attempting to change it to address any concerns that the Tribunal raised with him about the inconsistencies between the dates he joined the party.

The Tribunal also had regard to the applicant’s evidence he gave to the Tribunal about the Bangladesh National Party. While the Tribunal concedes that the applicant was able to correctly tell the Tribunal about the symbol of the party, and who founded the organisation, when the Tribunal attempted to gain some understanding from the applicant about the principles of the Bangladesh Nationalist Party, the applicant was not able to provide the Tribunal with any meaningful evidence. While the Tribunal accepts that it is not the arbiter of the political ideology of the Bangladesh Nationalist Party, it is reasonable to accept that the applicant, who claims to have been a member of the party since he was 18, held position a position within the party which involve him publicising the party, and was attracted to the ideology of the Bangladesh National Party, he would be able to tell the Tribunal something more meaningful that ‘our ideology is development of the country, roads and infrastructure, welfare of the people, and don’t do harm to anybody.’ The Tribunal was further concerned that there was a real lack of meaningful evidence despite the applicant telling the Tribunal that he attended a Bangladesh National Party programme in [Suburb 1], New South Wales.
The Tribunal asked the applicant whether the founder of the Bangladesh Nationalist Party had laid down any principles, or whether the Bangladesh National Party had a programme, and the applicant told the Tribunal that the founder was not alive and that he just follows the present leaders, and did whatever he was told to do by the current leadership. The Tribunal asked the applicant what the Bangladesh National Party principles were in relation to religion, private business and the centralisation of political power. While the Tribunal concedes that the applicant was able to tell the Tribunal that the Bangladesh National Party was supportive of private enterprise, he was not able to tell the Tribunal any meaningful information about the party’s approach to religion (apart from saying it was much better compared to other parties) and told the Tribunal that the Bangladesh National Party wanted to centralise power in the National Government.
The Tribunal has had regard to the 19 Point Plan of the Bangladesh National Party (Party factionalism in Bangladesh: a case study of the Awami league 1971-97 (PhD, 2004) Researcher: Al-Zaman, Amin, pp68-69). In the Tribunal’s view, if the applicant was genuinely a member of the Bangladesh Nationalist Party, having been attracted to its ideology, he would have been able to tell the Tribunal, at the very least, about the existence of the 19 point plan which had been laid down by the party founder, and would have been able to correctly and meaningfully discuss the principles as they relate to religion and whether power should be centralised or de-centralised.
The Tribunal was particularly concerned by the applicant’s response to the Tribunal’s question about whether the Bangladesh National Party want to centralise power in national government, or whether it wanted to decentralise power to local government. The applicant’s response that the party wishes to centralise power is the exact opposition of its published founding principles. The Tribunal was concerned that when the Tribunal put to the applicant that his response appeared to be the opposite of the party’s principle, the applicant asked the Tribunal what it meant by centralisation and appeared to suggest to the Tribunal that he had not understood the question. The Tribunal pointed out to the applicant that if he was confused by the question, it was curious that he would say centralise as opposed to decentralise, instead of saying to the Tribunal that he did not know what the Tribunal meant. The applicant then told the Tribunal that it was his ignorance, and then invited the Tribunal to contact any member of the presidium of the Bangladesh National Party to check his bona fides. The Tribunal explored further with the applicant why he chose one of the two possible answers to the question over the other. He then said that it was his feeling that if the Bangladesh National Party came to power, it would be good for the country, and he thought it would be good for power to be centralised. The Tribunal noted to the applicant that it had asked about the party’s principle about that issue, and not his own view.
In the Tribunal’s view, the applicant gave evidence that the Bangladesh National Party principle was to centralise power, and when he was challenged on this point, he first attempted to suggest that he did not know what that actually meant, and then when challenged further, suggested that he answered that way because it was his view that centralisation of political power at the National Government was a good thing. All of those positions are fundamentally contradictory and demonstrated to the Tribunal that the applicant had a flexible approach to the truth. Given these concerns, the Tribunal places no weight on the documents submitted by the applicant which purport to evidence his previous involvement in the Bangladesh National Party.
Past Incidents of Harm
The applicant told the Tribunal that he had a cousin who is an [Occupation 1] named [Mr C] who was involved in the Awami League. The applicant told me that his cousin is a [office bearer] of the Awami League and an upazila chairman. The applicant told the Tribunal that his cousin invited the applicant to change to the Awami League but as the applicant refused to do so, three Awami League supporters came to the applicant’s house and ‘took him away’. The applicant told the Tribunal that as he was being escorted down a roadway, two of the captors were some way back from him smoking, while the other captor was walking with the applicant. The applicant told the Tribunal that he knew that this abduction was organised by his cousin. He told the Tribunal that his cousin told him to join the Awami League and that if he did not, the consequences would not be good. He said he was physically assaulted and was beaten, and pointed to his head and arms. He initially said that he did not recall the date, but then told the Tribunal that the assault occurred a day or two before he went to [Country 4], which was about 3 or 6 months before he came to Australia, before staying that the assault occurred in 2015. He told the Tribunal that he was able to escape.
The applicant told the Tribunal that after he was assault, a General Diary record had been made. He told the Tribunal that he told members of the Bangladesh Nationalist Party that he was in trouble because he had been threatened with implication in a murder case. The Party told to the applicant to flee. The applicant told the Tribunal that he found out about the General Diary record when he went to make his own complaint about being threatened constantly. He was taken by a member of the Party to the police station to lodge a complainant that he was being harassed, and when he attended the police station, he discovered that one had already been filed against the applicant. As a result, the applicant applied for a visa and went to [Country 4]. He told the Tribunal that it took about 7 days to apply for the visa to [Country 4]. The Tribunal asked the applicant about whether he explored staying in [Country 4] and the applicant said he went there on a tourist visa and it was very difficult to stay. He told the Tribunal that he called the party and asked what he should do. He was told by the party member to come back and stay elsewhere and to not stay in his own house to avoid trouble.
The applicant told the Tribunal that apart from the instance of the abduction and the assault by three Awami League supporters, there were no other times he came to harm in Bangladesh. He did note that at one time he was in a procession in a marketplace where the exit gates were being closed on him and other Bangladesh Nationalist Party members, but he managed to escape. The applicant did not mention the attack on his business in Bangladesh, which resulted in him shutting his business down. The Tribunal notes that the applicant stated that his business was shut down following the attack after the delegate challenged the applicant about the applicant stating his was a successful business in Bangladesh, and it appeared to the delegate that operating a successful business was inconsistent with the applicant being targeted by the Awami League.
The Tribunal raised with the applicant his inconsistent evidence about the dates of his assault and his travel to [Country 4]. The Tribunal noted that the applicant told the delegate that he was assaulted on 12 June 2013, but gave oral evidence to the Tribunal that the assault happened in 2015, as did his travel to [Country 4]. The applicant response to this inconsistency was to tell the Tribunal that he ‘must have got the dates wrong’. The applicant put this down to ‘memory problems’ which he said that he was getting treatment for in Australia. The applicant told the Tribunal that despite getting the dates wrong; he was assaulted and did have a scar to mark the assault.
In the Tribunal’s view, the fact that the applicant changed this evidence from the date of his assault and gave inconsistent evidence about his travel to [Country 4] raise serious concerns about the applicant’s credibility as a witness of truth. The Tribunal does not accept that the applicant would be unable to remember the correct dates of his claimed assault and his travel to [Country 4]. The first time that the applicant mentioned his memory problems was at the Tribunal hearing, which the applicant stated occurred after he was physically assaulted. It appeared to the Tribunal that the applicant was suggesting that his memory problems were a result of the assault. There is nothing before the Tribunal to support the applicant’s assertion that his inability to be consistent between the date of his assault and the date of his travel to [Country 4] is due to a medical condition that has resulted in the applicant having ‘memory problems’. The applicant told the Tribunal that he was being treated in Australia for this condition, and the Tribunal told the applicant that if he sent any documentation about this condition it would take it into account; however no documentation was ever received.
To the Tribunal’s way of thinking, the applicant’s change in the dates of the assault is because the assault was invented by the applicant in order to claim protection. The applicant’s change in the date of his travel to [Country 4] was an attempt by the applicant to fix up his narrative, noting that the applicant’s evidence was that he fled to [Country 4] after the assault. Had his oral evidence been consistent with the evidence in his written application about the date he actually travelled to [Country 4], it would have fundamentally undermined the assault claim. However, the applicant’s attempt to shore up his claim has, in the Tribunal’s view, done the exact opposite because it has demonstrated that he was untruthful with something as basic was when he travelled to [Country 4], which could be readily disproven.
The Tribunal does not accept that the applicant would be inconsistent about his travel to [Country 4] for any reason other than he realised that he had forgotten about the date of his assault and fabricated when the assault occurred, and needed to fabricate the date he went to [Country 4] to bolster his claim. This, when taken with the fact that the applicant did not tell the Tribunal about the attack on his shop when he was asked if there had been any other instance of harm aside from the attack by the three Awami League members, demonstrates that the applicant has a flexible approach to the truth and will invent claims to counter observations that undermine claims (running a successful business despite being under attack as a Bangladesh National Party member).
Evidence about living arrangements in Bangladesh
As noted in the applicant’s oral evidence regarding his living arrangements, the applicant told the Tribunal that after he returned to [Country 4], he stayed with his in-laws at their place which was 5 or 6 hours away from his house. He told the Tribunal that he stayed with his in-laws for 3 to 4 months. This is contrasted with the written protection application where the applicant stated that he lived from [date] until 2 February 2015 in [Upazila 1], Munshiganj. That was the only address in Bangladesh provided in his protection visa application form. The applicant explained this inconsistency by telling the Tribunal that his parents-in-law live in the same district which was why he only put down one address.
The Tribunal does not accept the applicant’s evidence that his parents-in-law who, who live 5 or 6 hours away from him, are part of the same district and that is the reason for the failure to note a separate address. As noted in the protection visa application, the applicant wrote that he was living in [Upazila 1] for the whole period. Even if his parents-in-law lived in the same district, the applicant put down his local town in his protection visa application and did not note the change of address for the period of 3 to 4 months when he resided outside his town with his parents-in-law. The Tribunal does not accept that the applicant resided anywhere other than his home address, as provided in his protection visa application. In the Tribunal’s view, the applicant invented the claim that he moved 5 to 6 hours away so that he would not be harmed upon his return from [Country 4] to bolster the credibility of his claim.
Documentation
The Tribunal gave evidence to the Tribunal that in December 2017, he found out from a cousin named [Mr D] that a warrant had been issued for his arrest. He told the Tribunal that he found this out when he called his cousin after being unable to speak to his mother. This happened when he father was ill and had been hospitalised. The applicant said that his cousin [Mr D] had a discussion with a police officer who he was friendly with, and that his cousin [Mr D] was able to obtain a copy of the warrant through a lawyer after their discussion in December 2017. His cousin [Mr D] arranged for the document to be translated into English. These were the documents which were handed to the Tribunal on the day of the hearing. (Folio 78-90).
The Tribunal put to the applicant that country information states that document fraud is common in Bangladesh and that fraudulent documentation is easily obtainable (Report of a Home Office, Fact Finding Mission to Bangladesh, September 2017) and raised this in the context of the concerns that the Tribunal had about the legitimacy of the documentation that had been handed to the Tribunal. Noting that the applicant told the Tribunal that his cousin told him that the warrant had been issued in December 2017, and that the cousin then embarked on obtaining this warrant (and the other documentation) through the use of a solicitor, and having this warrant translated into English, the Tribunal put to the applicant that it would be impossible for this to happen when, according to the document he submitted to the Tribunal, the warrant was issued on 21 January 2018, which was a date after the telephone discussion where his cousin [Mr D] let him know about the warrant. The applicant responded that as he father was sick ‘around the time that the issue developed’ he thought it was around December 2017.
The Tribunal asked that applicant whether there was anything else he wished to raise with the Tribunal, and the applicant said there was not. After a 10 minute break, the Tribunal asked the applicant whether, apart from the 13 page document regarding the criminal proceedings that the applicant provided to the Tribunal the day of the hearing, he had been subject of any other criminal proceedings. The applicant said that there was another incident. He told the Tribunal that police had been to his house to look for him. He submitted those documents through his solicitor to the Tribunal. He told the Tribunal that one of his friends helped him obtain the documentation for this criminal matter, and that his friend, through a different lawyer, obtained those documents through the court. He told the Tribunal that he gave those documents to his solicitor in Australia who submitted them to the department (this was later clarified to mean the Tribunal), but he did not have a copy of this documentation. The applicant was asked by the Tribunal whether he had an electronic copy of the documentation and he said he did not, but later said that he, in fact did have an electronic copy because that was the documentation that he submitted to the Tribunal. The applicant told the Tribunal he did this because his solicitor submitted the original to the delegate.
There is no evidence before the Tribunal that the delegate had a copy of this earlier warrant and attached criminal proceedings. The first time that documentation came to light was when the applicant, by hand, submitted a print out of the documentation on 18 December 2015 by hand from the applicant (Folio 38-45). The applicant clearly had an electronic copy (noting that the image of the warrant and attached material was submitted as a bundle) and is an image from a gmail account. The Tribunal noted with the applicant that his evidence changed about whether he had an electronic copy of this documentation, and furthermore, the applicant only raised the issue of the earlier warrant after being asked by the Tribunal whether he had any other criminal proceedings following a 10 minute break. This can be contrasted with the evidence that the applicant gave before the break that there was nothing further he wished to add, other than the incident in the market. To the Tribunal’s way of thinking, the applicant would have raised his earlier 2014 criminal proceeding at that time. The applicant told the Tribunal that he did not mention the first warrant until he was prompted to do so by the Tribunal because ‘criminals are everywhere’ and he was hesitant to raise this issue of his 2014 criminal proceedings with the Tribunal because he thought that it would ‘go against him’. The Tribunal noted that if that was the case, he would not have submitted the document in 2015 to the Tribunal. The applicant then repeated to the Tribunal that he thought the Tribunal was asking whether the applicant had the ‘main’ (hard) copy of this proceeding and that is why he said he did not have a copy of the documentation.
The Tribunal does not accept that the documents submitted by the applicant to suggest that he has criminal proceedings initiated in 2014, or criminal proceedings initiated in 2018 as genuine. The Tribunal does not accept that the supporting document from a person who identifies himself as a lawyer as true. The Tribunal has come to that view because of the country information cited earlier about the prevalence of document fraud, and because of the applicant’s failure to mention, without prompting from the Tribunal, that he had another criminal case (2014) in addition to the proceedings in 2017. Further, the fact that the applicant’s cousin [Mr D] was able to apparently get details about this warrant from a police officer he was friendly with in December 2017 despite the warrant being issued in January 2018 undermine that the document is genuine. The Tribunal also does not accept that the applicant’s cousin would be advised by a police officer about the existence of a warrant given the claim that the applicant is a person who is being targeted by false criminal cases, as such a claim suggests that the police are complicit with his persecutors. If that was true, the Tribunal would expect that the police would not disclose the existence of such a warrant to a family member of a person who is being targeted by the Awami League.
The Tribunal has also had regard to the post-hearing documentation received from the applicant on 16 January 2019 (Folio 96-106). However, in light of the concerns that the Tribunal has about the credibility of the applicant due to his inconsistent evidence, and country information about the prevalence of document fraud, the Tribunal does not put any weight on the documentation submitted post hearing.
CONCLUSION

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

[2019] AATA 3412

1 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction