1514146 (Refugee)

1514146 (Refugee) [2018] AATA 2520 (31 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514146
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Ms Christine Long
DATE:31 May 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 May 2018 at 4:19pm
CATCHWORDS
Refugee – Protection visa – Bangladesh – Political opinion – Member of Bangladesh Nationalist Party (BNP) – Social group – Victim of attack by Awami League – Victim of torture and harassment – Credibility Issues – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 September 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who is a citizen of Bangladesh applied for the visa on 9 March 2015. The delegate refused to grant the visa on the basis that he did not consider that the applicant is a person in respect of whom Australia has protection obligations under paragraphs 36(2)(a) or (aa) of the Act.
The applicant attended a hearing before the Tribunal, with his representative, on 15 May 2018. The Tribunal was assisted by an interpreter in the Bengali and English languages.
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, that person is outside the country of his/her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself/herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, that person is a refugee if he/she is outside the country of his/her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The Tribunal has before it the applicant’s departmental file which includes his application for visa, a recording of an interview with the delegate about his claims, and a copy of the delegate’s decision record. The Tribunal also has before it the applicant’s application to this Tribunal for review.
Claims in Application for Protection Visa
In his application for protection visa the applicant states that he was born in Munshiganj, Bangladesh in [date]. He gives his religion as Sunni Muslim. He indicates that he lived in “[Village 1] [Manikganj]” between [year] and December 2014. He indicates that he was educated in Bangladesh to higher secondary level between [year] and [year]. He gives his occupation as “Business” and indicates that from February 2006 he was the [senior] of a [business/company] [in] Bangladesh. The applicant indicates that he married in Munshiganj in May 1982. He indicates that his spouse is “offshore” and resides in Bangladesh and that one of his male children [is] also “offshore” residing in Bangladesh; his other male child [is] residing in [Country 1]. He indicates that he has [siblings] residing in Bangladesh.
The applicant indicates that he left his country legally [in] December 2014 from Dhaka using his passport in his own name (the stamp in his passport indicates that he in fact left his country [in] December 2014); his passport was issued in Dhaka in [2012] and expired in [2017]. He indicates that he came to Australia as a visitor and that his visit visa for Australia was issued in Dhaka [in] October 2014. The applicant indicates that he visited [Country 2] between [September] 2002 and [November] 2002 and that he visited [Country 3] between [a date in] May and [another date in] May 2010. The applicant indicates in his forms that he had a previous passport issued in Dhaka in 2002 valid until 2010.
The applicant indicates that he was subject to an “investigation against breaching public order and traquility” and an “investigation against vandalism” in Bangladesh. He also ticks “yes” when asked the question in the application form whether he has “been the subject of an arrest warrant or Interpol Notice”. He states that he has been the subject of a “Police warrant on vandalism”.
In a statement dated 3 March 2015 made in support of his application for protection visa the applicant states that his current position, from 2010, is [Official 1] of the Bangladesh Nationalist Party (BNP), [Village 1], Munshiganj. He states that he joined the BNP in 1981, in 1992 he held the position of [Official 2] of the BNP and in 1994 he was promoted to [Official 1] of [Village 1], BNP.
The applicant continues in his statement that when the BNP was in government between 2001 and 2006 he developed his [business] and it was doing well. Between 2009 and 2014 the Awami League was the government party and the BNP was in opposition and during that period his business declined; the Awami League caused trouble for his business. Because of his involvement with the BNP his business position was not running well.
The applicant continues that he is an active member of the BNP and always participated in that party’s political activities including political processions, meetings, charitable works run by the BNP and ”collecting” new members. He states that he was arrested on several occasions but released without charge, but since then he was under pressure both politically and financially. Awami League “activities” (activists) attacked his business and his family. Two BNP members of his ward went missing; a police report stated that they had been abducted by an unknown group but he knows the Awami League were responsible for the abduction and probably killed the members.
The applicant continues that senior BNP leaders asked him to “go underground”. As he had a beard the Awami League tried to accuse him of being affiliated with Jamat E Islami and wanted to convict him for being a war criminal. He moved away from his home for one and a half years hoping the political situation would change. There was no change; the Awami League did an election without the BNP and formed a government in January, 2014. He decided to move to Australia to be on the safer side and applied for a tourist visa. He has been charged with another case; a warrant has been issued by the Bangladeshi police against him for vandalism. He does not want to return to Bangladesh because his life is in danger.
The applicant was interviewed by the delegate about his claims and a record of the interview is essentially set out in the delegate’s decision record.
Claims in Application for Review
The applicant provided a copy of the delegate’s decision record with his application to the Tribunal for review.
The applicant provided a statement in support of his application for review stating that his situation in Bangladesh compelled him to escape from his country as the Bangladeshi government and its authorities, the police and the Rapid Action Battalion (RAB) has killed BNP activists in Bangladesh. He states that he has a real chance of persecution if he returns to Bangladesh. He will provide documentary evidence to support his claims. He was a political activist of the BNP and “I was torcher” (tortured) because of my political opinion. ‘”As I am heavily torcher I lose my memory and the mental health (I will provide medical evidence)”. He said when he left Bangladesh everything was beyond his control and after he arrived in Australia he was not mentally healthy. He states that he believes his political profile is not high but those with the same profile have been put in gaol without trial and hundreds have been killed by police and the RAB. He refers the Tribunal to the US State Department Country Report, 2014 on Bangladesh as support for his claims.
Tribunal Hearing
At the Tribunal hearing the applicant produced his current passport, and two prior expired passports, to the Tribunal, including his passport issued in Dhaka [in] 2012 expiring in [2017] on which he travelled to Australia. Copies are placed on the Tribunal file. The Tribunal confirmed with the applicant that he had no other documents to produce in support of his claims.
The Tribunal also raised with the applicant his statement in his application for review that he had mental health issues and asked whether he intended to produce any medical evidence about those issues. The applicant told the Tribunal that he does not have mental health problems and that he did not need to give the Tribunal any medical evidence.
The Tribunal asked the applicant about how his application for protection was prepared. The applicant said that he prepared the application himself and then got a lawyer to write it into English. He said that the application was read back to him and he knows what is in the application. He said that because he has aged his memory is weaker and he has forgotten some things.
In addition to the above matters the Tribunal also spoke to the applicant about whether he intended to return to his country when he left there in 2014, his family in Bangladesh and his son in [Country 1], when and how he learned about the availability of protection visas in Australia, why he came to Australia, when he first had the difficulties he claims to have had in his country that caused him to leave there, his delay in leaving his country after his visa for Australia was issued [in] October 2014, where he was living in his country including where he lived just prior to travelling to Australia in 2014, how he was supporting himself and his family financially in his country, his [business] in Bangladesh, his claims that he was in hiding/moving around to different addresses in his country to avoid harm there, his visa for Australia and his visas for other countries which he stated that he obtained without difficulty, his passports which he also stated he obtained without difficulty, his exits from and entries to his country without difficulty, his travel to [Country 3] in 2010 and his travel to [Country 2] in 2002, his claims about why he cannot return to his country including his claims that he was tortured and harassed in his country because of his political activities/profile, his political activities and political positions in Bangladesh, his political activities in Australia and his claim that he had a high profile position/role in Bangladesh.
FINDINGS AND REASONS
Essentially the applicant claims that he left Bangladesh and cannot return there because he fears harm there including from police, authorities, the RAB, the government/high officials, opposition Awami League political party members and activists and terrorists groups/Awami League terrorists because he is a member and/or high profile member, and an activist of the BNP. He claims that he was harassed and tortured/beaten by those he fears in his country, that his business suffered and ultimately had to be closed, that he had to go into hiding in his country to avoid harm there from those he fears and that he was asked to “go underground” by senior BNP leaders. Further, although he did not make these claims before the Tribunal, in his application for visa he claims that he was the subject of two criminal investigations in Bangladesh and was the subject of a “police warrant on vandalism”. Also in the statement dated 3 March 2015 made in support of his application for visa he claims that due to his political involvement he was arrested on several occasions but released without charge and he there refers to being “charged with another case. A warrant has been issued by the Bangladesh Police in me for vandalism”. Further in his statement made in support of his application for protection visa he claims that he had a beard and the Awami League tried to accuse him of being affiliated with Jamat E Islami, “a religion based political party” and convict him as a war criminal. The applicant claims that he has been having difficulties in Bangladesh because of his political activities for many years, from 1992/1993, but in 2014 the pressure and problems from the threats and harassment became too much for him and he then left his country to escape. He also claimed before the Tribunal to have been involved in some BNP activities in Australia and to have kept connected with the BNP while he has been in Australia.
The Tribunal accepts that there is independent country information available, including country information referred to by the applicant, which indicates that the security situation in Bangladesh is volatile, that there is sometimes politically motivated violence there and that there are often clashes between members and supporters of rival parties and between party supporters and law enforcement agencies. The Tribunal also accepts that under the current Awami League government senior members of the BNP face a high risk of politically motivated arrest and violence both from security forces and ruling party activists: see DFAT Country Information Reports, Bangladesh, 2 February 2018, 5 July 2016, 20 October 2014. Clearly however the Tribunal must determine whether, for the purposes of the ‘refugee’ criterion, the applicant before it has a genuine fear founded upon a real chance of persecution for one or more of the reasons of his race, religion, nationality, membership of a particular social group or political opinion, if he returns to Bangladesh, or, for the purposes of s.36(2)(aa) (‘the complementary protection criterion’), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, in this case Bangladesh, there is a real risk that the applicant will suffer significant harm.
Identity and Country of Reference
The Tribunal accepts and finds that the applicant is who he claims to be; he produced his current Bangladeshi passport to the Tribunal at the hearing issued in [2017] valid until [2022]. He also produced two prior passports to the Tribunal. The country of reference for this application is Bangladesh.
Applicant’s travel outside of Bangladesh
The Tribunal finds that prior to travelling to Australia in December 2014 the applicant travelled to [Country 3] between [a date in] May 2010 and [a later date] May 2010; his passport for that period includes a visa for [Country 3] noted as valid from [November] 2009 until [May] 2010 and exit and entry stamps to and from Dhaka for [dates in] May 2010. The Tribunal accepts the applicant’s evidence to it that he went to [Country 3] in 2010 to visit his son who was studying there although his son has now moved to [Country 1].
The Tribunal also accepts that the applicant travelled to [Country 2] between September and November 2002; relevant entries are stamped in his passport and his passport bears a visa stamp for [Country 2] noted as issued [in] August 2002 with the expiry date noted as [August] 2007. The Tribunal accepts the applicant’s evidence to it that he went to [Country 2] in 2002 because he had relatives there.
The Tribunal also accepts and finds that the applicant was granted/issued a visitor visa for Australia [in] October 2014; these details are included in his application for protection visa and were confirmed by his adviser at the hearing. Having regard to the details in the applicant’s passport issued in Bangladesh in [2012] the Tribunal also accepts and finds that the applicant left his country to come to Australia [in] December 2014 and arrived in Australia 23 December 2014.
The applicant also told the Tribunal that he was interested in going to [Country 4] and that is why he obtained a visa to go to [Country 4] in July 2014. The visa is shown in his passport as a multiple entry visa issued in Dhaka [in] July 2014 for multiple journeys to [Country 4] within three months of the date. The applicant said that he did not ever go to [Country 4] despite applying for and obtaining this visa because he was in a mess and in fear and was just trying to “find ways”. He said there are no facilities for protection there. The Tribunal accepts that the applicant did not visit [Country 4] using the [Country 4] visa shown in his passport.
The Tribunal finds that the applicant had no difficulties from authorities getting his visas to visit countries outside of Bangladesh, getting his passports, three of which he produced to the Tribunal and two of which he had issued by authorities in Bangladesh, and that he had no trouble at any time exiting or re entering his country, including leaving Bangladesh in December 2014 using his passport and visa to travel to Australia. The applicant told the Tribunal that he had no trouble getting his passports or any of his visas to leave his country and that he had no difficulties/trouble leaving or re entering his country at any time.
The Tribunal accepts and finds that the applicant’s wife and one son remain living in Bangladesh and that his son is studying at college there; they are having no difficulties in Bangladesh. That was the applicant’s evidence before the Tribunal.
Applicant’s Credibility

The Tribunal does not accept as true that the applicant left his country and cannot return there for the reasons that he claims. It does not accept as true that the applicant feared or fears harm in his country for the reasons that he claims. The Tribunal does not accept as true that the applicant and/or his family was or will be threatened, tortured, ill treated and/or harassed in his country, or that the applicant went into hiding/changed addresses in his country to avoid harm there, or went “underground” at the request of senior BNP leaders, or that his business was affected and/or closed down as he claims, for the reasons that he claims.
Applicant’s Political activities and Profile
While the Tribunal accepts that the applicant supports the BNP it does not accept as true that he was, or is, of the profile/high profile with the party that he claims or that he held the offices with the BNP that he claims to have held. It does not accept as true that he was, or is, a senior member of the BNP or that he was, or is, a BNP political activist. It does not accept as true that senior leaders of the BNP asked him to “go underground” to operate the BNP political movement. The applicant claims that he joined the BNP in 1981, that he was [Official 2] of the Party for the [Village 1] area in 1992 and in 1993/4 he was promoted to [Official 1] of the Party in the [Village 1] area in which position he remained until 2014. He said that because he was in a strong position and had huge support from the people he got lots of threats from the Awami League and was tortured; they used to hit him and beat him and they were always trying to get rid of him; they threatened to kill him; they tried to convict him as a war criminal/ being affiliated with Jamat E Islami. The applicant told the Tribunal that his problems began in 1992/1993 but it was not until 2014 the pressure on him from the threats and harassment built up and became too much so that he had to leave his country to escape. The Tribunal does not accept that any of these claims are true. The applicant claims to have held the [Official 2 position], and then [Official 1] with the Party in [Village 1] for many years, but when the Tribunal asked what he did in that role he gave general answers only. He said that his duty was to get public support and spread ethics and morality to the public. He said that he called people to talk to them on a weekly basis or sometimes each two to three days; he followed instructions from the Party. When the Tribunal asked him more about the ethics and morality he spread to the people he said that the BNP was always on the side of the good of society and anything bad that needed to be pointed out they did. He repeated he followed the instructions from the leaders of the Party. When the Tribunal told the applicant that it was difficult for it to accept that he held the role/s with the BNP that he said he did for so many years, given his general answers about what he did in that role, he said that if there was a strike by the opposing party they would want to stop it and they protested if their members were arrested. Although the applicant told the Tribunal that he had a high profile in his country because he was [Official 1] and [Official 2] with the BNP he states in the statement that he gave to the Tribunal in support of his application for review that he believes his political profile is not high but says that even so other BNP activists with his profile have suffered harm or been killed or gaoled for their political activities in Bangladesh.
The Tribunal does not accept as true that the applicant was at any time arrested, investigated or that he was subject to a warrant, in his country. Although he made those claims in his application for protection visa he told the Tribunal he was never arrested, detained or investigated in Bangladesh when it asked him about these matters. When the Tribunal reminded the applicant about the claims he had made in his statement dated 3 March 2015 about being arrested on several occasions but released without charge, and about the claims he made in his application for visa forms about being the subject of criminal investigations and a police warrant and told the applicant that the discrepancies in his evidence caused it to have doubts about his credibility, the applicant said he was telling the Tribunal the truth and whoever put those details in the application/forms made a mistake. When the Tribunal reminded the applicant that he had confirmed with the Tribunal at the beginning of the hearing that he prepared the application and knew what was in it and it had been translated and read back to him, he said that he had forgotten all of that.
Applicant’s claims that he was underground, moving around and in hiding to avoid harm in Bangladesh
In the Tribunal’s view the applicant has given confusing and at times conflicting evidence about his claims. Although the applicant told the Tribunal that because of his age (he gives his date of birth as [year] in his application) his memory has weakened the Tribunal does not accept that the applicant gave conflicting/confusing evidence in relation to his claims because of age related forgetfulness. There is no medical evidence before the Tribunal to support the applicant’s claim that he has age related memory problems.
The Tribunal finds that just before the applicant left his country to come to Australia he was running a [business] in Bangladesh which he had started many years ago and he was living with his family at rented accommodation close to his business, from 2012 to 2014, while maintaining his permanent family home in [Village 1] at the address he gave in his protection visa application as the address where he lived from [year] until 2014. The Tribunal asked the applicant at the hearing where he lived in his country just before he came to Australia and what he was doing in his country to support himself/his family financially before he came to Australia. In relation to his occupation the applicant told the Tribunal that he had land and there was harvesting going on and he had financial help from that source. He also said that he was in hiding and friends supported him. He said that friends and relatives gave them shelter. When the Tribunal reminded the applicant that in his protection visa application he indicates that he was in the [business] and gave his occupation as “business” and that there is no mention of getting money from harvests and from relatives and friends the applicant said that he had to shut his business down and he was just telling the Tribunal about the time after the business was shut down. He told the Tribunal that he started the business in 1990/1992 although in his protection visa application forms he indicates that the history of the business commenced in February 2006. He told the Tribunal that his business was shut down in March/April 2014 because of the problems he was having. When the Tribunal reminded the applicant that there is no mention in his application of his business shutting down, although he mentions his political activities meant his business started to have trouble and his business was not running well, the applicant said that he did not write all this down when he prepared his application. He agreed however that he gave his occupation as business in his application for protection visa. When the Tribunal queried with the applicant why he would not indicate in his application for visa that his business had to close down because of the problems from the Awami League arising from his political activities with the BNP he then said that his employees ran the business because he was unable to run it. He could not be present in the business for a while because of what was happening to him; he was last present in the business in February or March 2014 and the employees ran it for a while and then the business shut down in the March. He said the business shut down because he was not present there to buy materials and keep it running because of the threats and harassments he was getting. He could not appear at the business because he feared what would happen to him if the police or the (opposition party) activists or terrorists had found him.
The Tribunal does not accept as true that the applicant had to close down his business or run it through his employees without going there himself for the reasons that he claims. The Tribunal considers that if these very serious claims were true he would have included the details in his application for visa. Although he mentions his political activities meant his business started to have trouble and his business was not running well in his statement dated 3 March 2015 the applicant indicates in his application forms that his occupation is “business” and from February 2006 until ”current” he was the [senior] of a [business], [Business Name], in Bangladesh. The Tribunal notes that when the applicant wrote down the name of his business for the Tribunal at the hearing he provided another name for his business.
Further the Tribunal does not accept as true that the applicant moved around and hid at different addresses to avoid harm in Bangladesh as he claims. It does not accept as true that BNP senior leaders asked him to “go underground” to operate the political movement. When the Tribunal asked him where he was living just before he came to Australia the applicant wrote down an address for the Tribunal where he said that he lived for two years, from 2012 until 2014. He said that his permanent address is the one he wrote in the application for visa forms; he indicates in the forms that he lived at the permanent address from his birth until he left Bangladesh in December 2014. He told the Tribunal that the address where he lived from 2012 to 2014 is a place to which he and his family moved because it was convenient to get to his business from this address; he said that is why he moved there. He said that his relatives had the place there and it is/was rented. He said that the address is five miles from the city where his business was. He also said that he had to run the business mainly through employees because he was being harassed by terrorists/activists and also higher officials; he went to the business secretly twice a week. The Tribunal queried with him why then he moved to an address and stayed there between 2012 and 2014 because it was closer to his business and convenient to get to his business and he then said that he caught the bus there to the business from this address. The Tribunal does not accept as true that the applicant could not run his business and had to run it and go there secretly as he claims for the reasons that he claims.
The applicant told the Tribunal that he had to move around to avoid harm in Bangladesh because he was in fear of his life; he was living here and there trying to hide; he was sometimes in the village and sometimes at other addresses. When the Tribunal reminded the applicant that he had said that he lived at an address which he wrote down for the Tribunal, for two years between 2012 and 2014, and that he moved there to be closer to his business, the applicant said that he was unable to stay in one place and he slept in different houses. When the Tribunal asked him for details about where he stayed when he was in hiding he said that he was in different places and houses and could not tell the Tribunal where he had been in hiding at any time because the places were not fixed and he was forced to live in different places to avoid harm. When the Tribunal told the applicant that it was a concern for it that he could not remember at least some of the places he was in hiding he said that it was not possible because there were so many different houses. He said that he started to move around from June, July and August (2014) because he was in more trouble. In the Tribunal’s view if the applicant had been “underground” or moving around to avoid harm in his country he would have been able to tell the Tribunal at least where some of the places he stayed/stayed in hiding were located and he could not do so.
Further the Tribunal considers that it is not consistent with the applicant’s claims that he was of such interest to police/authorities in his country that he had to go into hiding to avoid harm from them there that he exited his country in December 2014 using his passport and visa for Australia without difficulty; this was his evidence to the Tribunal. When the Tribunal asked him how he managed to leave his country using his passport and visa through the international airport in Dhaka, as the departure stamp in his passport shows he did in December 2014, the applicant said that he had no trouble leaving. When the Tribunal referred generally to country information that it had consulted (see: DFAT Country Information Reports, Bangladesh, 20 October 2014, paras 5.25 to 5.27) which indicates that if a person was of interest to authorities in Bangladesh that person may have difficulty leaving the country because of exit and entry checks, the applicant then said that he left quietly and it was “their responsibility” and he did not know how he did not get caught; he said that he left because he was desperate.
The Tribunal does not accept as true that the applicant was of interest to authorities, police and others in his country as he claims for the reasons that he claims.
Applicant’s Delay in Leaving Bangladesh
The Tribunal also raised with the applicant why, if he was in such difficulties that he had to go into hiding to avoid harm, he did not leave his country until [a date in] December 2014 when he had a passport and visa to do so before that time; at that time he had a current passport issued in Dhaka in February 2012 and his visa for Australia was issued [in] October 2014 as found above. The applicant said that he was not financially able to leave; he had to sell land/things to get money and it was complicated. He had to sell property through others and it took longer. He could not collect his debts from his business because he was unable to be present at his business and therefore he had to sell things to get finance. He said that if he did not have money he could not stay (away). Given the applicant’s business interests in his country, the income he claims he was getting from his lands and friends and the very serious claims he makes about his fear of harm in his country which was so serious that he had to move around for months before he came to Australia to avoid harm, the Tribunal does not consider that the applicant has given a reasonable or plausible explanation for why he remained in his country for over two months after he had a passport and visa to leave there.
Conduct in Australia
The Tribunal asked the applicant at the hearing whether he had been involved in any political activities of his country while he has been Australia. He initially answered no to the question but then said that he is connected to the party. He then said that he “goes sometimes” but not regularly. He named a person who calls him when a meeting is on and said he has gone along. He then said that he has gone to a meeting in [a suburb], only once, but he has forgotten when he went as it was a long time ago. He said that he also protested when the opposition party leader came to Australia and he thinks that was a couple of months ago, maybe in December, at [a location]. He said that he went there to protest because the leader is trying to demolish political groups in Bangladesh. They went to the protest to show their hatred for her.
The Tribunal accepts that the applicant is a low level supporter of the BNP and as such has attended one meeting of his political party “a long time ago” while he has been in Australia. Not without some doubt about the matter the Tribunal also accepts that the applicant went to a protest when the leader of the Awami League recently came to Australia. To that extent the Tribunal accepts that the applicant has had some limited connection with the BNP while he has been in Australia. The Tribunal finds that that there is not a real risk of the applicant suffering significant harm, or a real chance of his suffering serious harm in his country, because of his limited political activities and connection with the BNP in Australia.
The Tribunal accepts that the applicant will continue to support the BNP if he returns to his country, as a low level supporter. Having regard to the country information consulted by the Tribunal, and also the findings of the Tribunal made above, the Tribunal finds that there is not a real risk of the applicant suffering significant harm, or a real chance of his suffering serious harm in his country, for that reason.
CONCLUSION
For the purposes of the ‘refugee’ criterion the Tribunal finds that the applicant does not have a genuine fear founded upon a real chance of persecution for one or more of the reasons of his race, religion, nationality, membership of a particular social group or political opinion, either now or in the reasonably foreseeable future, if he returns to his country.
Further the Tribunal finds that, for the purposes of s.36(2)(aa) (‘the complementary protection criterion’), there are not substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to a receiving country, in this case Bangladesh, there is a real risk that the applicant will suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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.
Ms Christine Long
Member

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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.
…

[2018] AATA 2520

31 May 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice