1514376 (Refugee)

[2020] AATA 989

1514376 (Refugee) [2020] AATA 989 (8 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514376

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Nathan Goetz

DATE:8 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 08 January 2020 at 5:01pm

CATCHWORDS

REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh National Party – applicant’s father falsely jailed – kidnapping – political activities in Australia – fear of killing – false legal proceedings – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 91R(3)
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant, who the Tribunal is satisfied is a citizen of Bangladesh with no right to enter and reside in a third country, arrived in Australia [in] August 2013 having been granted a work and holiday visa on 2 June 2013. This visa was valid for 12 months.

3. On 15 August 2014, the applicant lodged a protection visa application. For the sake of completeness, he lodged a second protection visa application on 18 August 2014, but withdrew this second application.

4. The applicant was interviewed by the delegate on 22 May 2015. On 18 September 2015, the delegate refused to grant the applicant a protection visa.

5. On 23 October 2015 the applicant applied to the Tribunal for a review of the refusal decision.

6. On 1 August 2019 the applicant appeared before the Tribunal to give evidence and present arguments. The applicant is represented by [his migration agent] who attended the hearing. The hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

   CRITERIA FOR PROTECTION VISA

7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

8. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

10. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

11. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. In the written protection visa application filed 15 August 2019, the applicant claims that he is [name] who was born on [date] at Habiganj in Bangladesh. He is one of [a number of] siblings.

13. The applicant provided a three page statement in support of his protection visa application. He wrote that his father was [occupation 1] and a freedom fighter who participated in the 1971 war of independence. His grandfather is [an official] of the Bangladesh Nationalist Party (BNP) in [Branch 1 in] Sylhet. The applicant claims that he is also a member for the same BNP branch as his grandfather.

14. From a young age, the applicant used to see a lot of important political leaders meeting with his father at their home. Along with other political people, his grandfather’s uncle used to come to the house and have meetings with his father. Seeing all these people made the applicant also want to become involved in politics. He decided that when he grew up, he wanted to be a political figure.

15. The applicant wrote that from 2007 he was involved in the preparation for the 29 December 2008 national election in Bangladesh. He participated in many meetings and rallies with his father and his grandfather. When his father got very involved with the election, Awami League (AL) workers told his father that if he continued to work for the BNP they would lodge false case in court against the applicant and his father. Near the end of 2008, AL leaders filed such a case against the applicant’s father for murder and terrorism. As a result of this case, the applicant’s father went to jail. The applicant claimed that his father is not a terrorist or a murdered and that the charges were false. It was for this reason that the applicant’s father could not participate in that election.

16. The applicant detailed that AL workers also attacked the family home and told his entire family that if the applicant participated in any political meetings or rallies, the AL would destroy his whole family. Despite these threats, the applicant continued with his activities.

17. The applicant wrote that his father was released from jail after three months and 12 days. The applicant’s father was tortured during his imprisonment. Despite this torture, when the applicant’s father was released from jail he told the family to continue with their political pursuits. The applicant noted that despite hard work, the election was lost to the AL and that the AL started to torture the opposition parties.

18. The applicant wrote that in December 2011 he was kidnapped. This happened while he was returning home from shopping. He was taken to an unknown place and was ill-treated. He was released after one week by his father paying a huge ransom. The kidnapping made the applicant very sick and scared, resulting in him crying and having trouble sleeping. When the applicant tries to sleep, he dreams that people are coming to kill him.

19. The applicant wrote that on [a date in] February 2012 he was returning home and was attacked by a group of AL activists and was beaten. He was near death and was left on the footpath. He was found by local people and was admitted to the nearest clinic where he spent 7 days before being released. His parents went to a police station to file a case but were unable to do so. Instead, a false case had been filed against the applicant. This was done to doom the applicant’s political future. This incident made the applicant’s father start to think about the applicant’s safety and his father became determined to send the applicant overseas.

20. The applicant wrote that he got a chance to come to Australia by applying for a work and holiday visa. He applied to the Bangladesh Home Ministry as part of the visa application process, and police clearance was obtained through the applicant’s father paying a bribe to police. Pleased that the applicant had been able to get a visa to come to Australia for one year, the applicant’s father told him that he would fix the applicant’s problems while the applicant was in Australia, so that after one year, the applicant would be able to return to Bangladesh. However, the applicant came to know one week prior to lodging his protection visa application that AL activists had attacked and burned the family home, and beat his father. His father told him it was not safe for him to return to Bangladesh. It was for this reason that the applicant applied for protection in Australia.

21. In the ‘Reasons for Claiming Protection’ section of the protection visa application form, the applicant wrote that he fears he would be harassed, humiliated and face false criminal cases by members of the AL and the government if he returned to Bangladesh. The harm would come from opposition party members of the AL and he believed that he would face harm because he had experienced past harm, and government party members harass opposition party members. He does not believe that authorities in Bangladesh can protect him if he returns because police and courts listen to the government. As his party, the BNP is not in power, he will not get effective protection from the government.

    After lodging the written protection visa application on 15 August 2014, the applicant submitted the following documentation to the delegate in November 2014:

22. A court order sheet dated [in] February 2012 naming the applicant as absconding from bail and ordering that he and two other named persons be imprisoned and fined.

23. A court document dated [in] January 2009 relating to the trial and bail hearing of his father.

24. A complaint petition dated [in] February 2009 naming the applicant as one of seven accused persons.

25. A charge sheet dated [in] April 2012 naming the applicant as one of three accused persons.

26. A statement of complaint dated [in] September 2008 naming the applicant’s father as one on seven accused persons.

27. A first information report dated [in] September 2008 naming the applicant’s father as one of seven accused persons.

28. An arrest warrant dated [in] April 2012 naming the applicant as one of three accused persons.

29. A statement of complaint stated [in] February 2012 naming the applicant as one of three accused persons.

30. An English translation of a first information report dated [in] February 2012 naming the applicant as one of three accused persons.

31. A letter dated [in] September 2014 from [Mr A], [an official] of BNP [Branch 1], certifying that [Mr B] was present of that BNP group on 29 December 2012.

32. A monthly pay order from [a named workplace] for December 1984 to February 1985 detailing payment amounts to the applicant’s father and seven others.

33. A testimonial certificate dated 23 September 2014 from the [manager] of [that named workplace] certifying that the applicant’s father was a former [occupation 1 there].

34. A provisional certificate dated [in] September 2012 from the Ministry of Liberation War Affairs certifying that the applicant’s father is a ‘freedom fighter’.

35. A letter dated [in] September 2014 from [an official] of the Bangladesh Nationalist Student Party, [Branch 2], certifying that the applicant was an ‘[an official] of the executive committee of the Bangladesh Nationalist Student Party of [Branch 3 in] Habiganj from 2009 to 2013.

36. A discharge certificate recording that the applicant was admitted to [Hospital 1] [between dates in] February 2012 for treatment of soft tissue injuries received in a physical assault.

    After the delegate interview on 22 May 2015, the delegate received the following documentation from the applicant on 29 June 2015:

37. A further copy of the previously submitted letter dated [in] September 2014 from [an official] of the Bangladesh Nationalist Student Party

38. An undated letter bearing the Bangladesh Parliament letterhead from an unidentified writer certifying that the applicant was an [official] of the executive committee of the Bangladesh Nationalist Student Party of the [Branch 3 in] Habiganj from 2009 to 2013.

39. A letter dated [in] June 2015 bearing a Bangladesh Parliament letterhead from an unidentified writer certifying that [Mr B] was [an official] of the BNP [Branch 1] on 29 December 2012.

40. A letter dated [in] June 2015 bearing a Bangladesh Parliament letterhead from an unidentified writer, certifying that the applicant’s father was a ‘[an official] on 29 December 2008 of the BNP [Branch 1].

41. A letter dated [in] June 2015 from the [manager], [from the named workplace], certifying that the applicant’s father was [an official] of the managing committee of [that workplace] from 8 December 2001 until 19 August 2004.

    Prior to the hearing on 1 August 2019, the applicant submitted the following documents to the Tribunal on 18 July 2019:

42. A letter dated 1 July 2019 from [Mr C], who identified himself as the [Official 1] of the BNP in Australia. The letter stated that the applicant became the [Official 2] of the Australian BNP branch and that the applicant had been serving the interests of the party here in Australia since his arrival. The letter detailed that the applicant had participated in all the programmes initiated by the BNP in Australia and his role as [Official 2] is [specified role] in Australia. The letter went on to detail that in April 2018, the applicant was at [an event] in Australia protesting against the Bangladesh Prime Minister Sheik Hasina (who leads the AL) when she visited Australia. The letter wrote that this [event] was published in various news media and that the applicant, along with others, became a target of the Prime Minister.

43. A letter dated [in] June 2018 from [a health centre] noting that the applicant has been a patient of [a named doctor] since 1 May 2018 and that he is suffering from anxiety, stress, depression and is taking [a medication], and is currently having counselling with a psychologist. There was an additional letter from [that centre] dated [in] July 2019 stating that the applicant is suffering from a soft tissue injury to his [elbow] for which he was prescribed medication for 7 days.

44. A copy of the applicant’s prescriptions for [his medication].

45. A letter dated [in] September 2019 from [Mr D] who identified himself as [an official] of the BNP in [Branch 2 in] Habigang and a former member of the Bangladesh Parliament. The letter stated that the applicant was personally known to the author and that the applicant was an [official] of the executive committee of the Bangladesh Jatiotabadi Chatradal of the [Branch 3] from 2009 to 2013. The letter noted that the applicant was very active in politics and was threatened. Together with this letter was a print out of the [social media] profile of [Mr D] and a document that appears to be an election leaflet.

46. A letter dated [in] June 2018 from [a business], who provide irregular accounting services to the applicant. The letter details that in August 2016, the author of the letter found an open yellow envelop in his office stairs with documents. The document had the applicant’s name on it and the author searched for that name on his client database, assuming that documents belonged to a client as it had been found under his doorway. He found that the applicant was a client and contacted the applicant on his phone number. The applicant came to collect the documentation, asked whether there was any other documentation that was found as the applicant indicated that there should be more documentation. The applicant collected the documentation and left.

47. Photographs of the applicant that are identified as coming from ‘Bangladesh community magazines’.

48. A statutory declaration from the applicant dated 18 July 2019. In the declaration, the applicant asked the Tribunal to consider his mental health issues when assessing his application. He also wrote that he continues to be actively involved with political activities with the Australian BNP chapter. He wrote that he attends their meetings, and programs such as ‘Establishment Day’ events, Ziaur Rahman’s birthday and death anniversary events, as well as Begum Khaleda Zia and Tariq Rahman’s birthday events. He wrote that he has also attended protests and demonstrations organised by the BNP in Australia, and noted that local Bengali newspapers which are published online have taken photos and that he is in some of the photos that are published online. In addition, the Australian chapter of the BNP also used to upload their political events on [social media] and he is in those photos which are in the public domain.

49. He claimed that he had been attending meetings and protests since 2014, and gave the following attendances as examples:

50. [In] January 2017, he attended a celebration of Ziaur Rahman’s 81^st birthday party at a [location in] New South Wales.

51. 26 March 2017, he attended an evening discussion and cultural programme in commemoration of Independence Day in [a town in] New South Wales.

52. 2 June 2017, he attended a function [named] at [a location in] New South Wales

53. 13 August 2017, he attended a birthday celebration for Begum Khaleda Zia in [a suburb in] New South Wales

54. [In] August 2017, he attended a fundraising function for Bangladesh flood victims at a [a suburb in] New South Wales.

55. [In] September 2017, he attended a fundraising function for flood victims in Bangladesh at [a location in] New South Wales.

56. [In] October 2017, he attended an executive committee meeting which also observed the Bangladesh National Revolution and Solidarity Day at [a location in] in New South Wales.

57. [In] November 2017, he attended a celebration of the Bangladesh National Revolution and Solidarity Day at a [location in] New South Wales.

58. 20 November 2017, he attended a celebration of Tariq Rahman’s birthday [in a suburb in] New South Wales.

59. On 17 December 2017, he attended a celebration of Bangladesh’s 47^th Victory Day at a [location in] New South Wales.

60. 21 January 2018, he attended a celebration of the birthday of Ziaur Rahman at [a location in] New South Wales

61. On 8 February 2018, he attended a protest against the politically motivated case against Begum Khaleda Zia at a [named suburb].

62. On 20 February 2018, he attended a gathering at [a landmark in] New South Wales

63. On 25 March 2018, he attended a Independence festival at a park in [a suburb in] New South Wales

64. On 15 April 2018, he attended a meeting at [a location in] New South Wales, to protest Sheikh Hasina’s visit to Australia.

65. [In] April 2018, he attended a demonstration against Sheikh Hasina [at a location in] New South Wales.

66. [In] June 2018, he attended an iftar party and commemoration of the 37^th anniversary of the death of Ziaur Rahman at [a location in] New South Wales.

67. On 19 August 2018, he attended a celebration of Khaleda Zia’s birthday at a [suburb in] New South Wales.

68. On 2 September 2018, he attended a celebration of the BNP founding day at [a location in] New South Wales.

69. On 22 December 2018, he attended a celebration of Bangladesh Victory Day at [a location in] New South Wales.

70. On 16 March 2019, he participated in a discussion about how to celebrate the Bangladesh Independence Day at a location in] New South Wales.

71. The statement also detailed that the applicant was aware of an active AL group in Sydney who monitor the activities of the BNP in Australia and that there is a real chance that they would have passed on information about BNP members to the AL activists and police in Bangladesh.

1. The statement also addressed the reason for the applicant’s delay in seeking protection in Australia. The applicant confirmed that he arrived in Australia [in] August 2013 and applied for protection on 15 August 2014. At the time he arrived in Australia, there was a general belief among the Bangladesh diaspora that the general election in 2014 would be held under a caretaker government or under the supervision of the international community. Accordingly, if that occurred, the applicant believed that the BNP would come to power and that the BNP would revisit all the politically motivated cases filed against BNP members. The applicant believed that the case against him would be revisited and that there would be no need for him to seek protection in Australia, and that he would be able to return to Bangladesh after the January 2014 election.

2. However, this did not occur. The applicant claimed that the AL activists used terror tactics and won the election, which he stated the international community condemned as fraudulent. Noting this, the applicant believed that another election would be held under the supervision of the international community which the BNP would win. The applicant wrote that by the middle of 2014, it appeared that there had not been any change in Bangladesh and that the AL activists and the Rapid Action Battalion continued to target BNP members and activists. As soon as he realised there would be no political change in Bangladesh, the applicant decided to apply for a protection visa.

3. The statement also addressed the authenticity of the court documents. The applicant wrote that he had obtained a legal opinion from a lawyer in Bangladesh who provided a letter confirming the status of his case and the authenticity of the documents that the applicant had submitted.

4. The applicant provided an internet link to an article in the [named] online newspaper which the applicant said supported the proposition that the situation in Bangladesh had worsened since the delegate made his decision. The applicant noted that in December 2018 the AL won the Bangladesh national election, claiming that this was achieved through malpractice, violating human rights, and abusing of political opponents.

5. The applicant requested that the Tribunal consider his profile as a political activist, his leadership role as [Official 2], and the current political and security situation in Bangladesh when determining whether he is a refugee.

   Prior to the hearing on 1 August 2019, the applicant submitted the following documents to the Tribunal on 19 July 2019:

6. A report dated [in] July 2019 from the [Welfare Agency 1]. The report stated that the applicant had been attending the service since May 2019 and had attended three sessions to date. The applicant had been referred for treatment for psychological difficulties associated with his experiences of trauma and settlement. The report noted that the applicant had reported to the service that he had been kidnapped and tortured in 2011 and beaten in the streets in 2012 due to his father’s political affiliations for which the applicant continues to deal with the after effects through therapy with [Welfare Agency 1]. In the opinion of the author, the applicant presents with an anxious, worried appearance, with rapid speech indicating anxiety. The applicant finds it hard to regulate his emotions, often near crying. The applicant remains concerned for his family in Bangladesh, grieving over the death of his father and his inability to see him due to the applicant’s fears for own safety. The report further details that the applicant recently suffered a physical assault and prior to that, 8 months of verbal abuse at work. The applicant has been severely impacted by this experience, which lead to his attendance at [Hospital 2] for anxiety and suicidal thoughts. The experience, according to the author of the report, triggered fears about the applicant’s past experiences of kidnapping and torture. The applicant remains committed to ongoing treatment and regularly attends his appointments.

7. A Notarial Certificate dated [in] September 2017 by [name], who identified himself as an Advocate of [a specified court in] Sylhet and a [Notary Public] and certified that the ‘executants / deponents / affidavit / translated copy / photostate copy / power of attorney who has been duly identified / translated / certified by ‘self’ and that the documents were authenticated and attested. The attestation related to the following documents, which were provided:

8. A news report, in Bengali with an English translation, from an article published on [a named website] [in] July 2017, which was titled [regarding activists in Australia]. The article mentions the election of various people to executive roles in this conference, including the applicant as ‘[Official 2]’.

9. A news report, in Bengali with an English translation, from an article published on [a website] [in] July 2017 reporting on the formation of the new executive committee formed for the BNP in Australia.

10. A news report, in Bengali with an English translation, from an article published on [a news site] [in] July 2017 reporting on the formation of the new executive committee formed for the BNP in Australia.

11. A news report, in Bengali with an English translation of article published in [a named] newspaper on the Bangladesh Jatiobabadi Jubodol Australia observing the 81^st birthday of Ziaur Rahman at [a location ] in Sydney [in] January 2017.

12. A news report in Bengali with an English translation published on [a website] [in] July 2007 reporting on ‘[deleted]’.

13. A news report, in Bengali with an English translation published on [a website] [in 2017] reporting on ‘[deleted]’.

14. A news report, in Bengali with an English translation published on [a website] [in] June 2018 reporting on the 37^th anniversary celebrations of the death of Ziaur Rahman with the BNP in Australia hosting a programme [in] June at [a location].

15. A news report, in Bengali with an English translation published on [a website] in June 2018 reporting on the BNP Australian branch hosting a celebration of the anniversary of the death of Ziaur Rahman at [a location].

16. A post, from the [social media] account of ‘[Mr C]’, [in] April 2016 showing a photograph of a ‘BNP meeting in [Sydney]’.

17. A post, from the [social media] account of ‘[Mr C]’, [in] January 2017 showing a photograph of ‘celebration of birthday of Khaleda Zia’.

18. Three photographs, accompanied by a written note ‘[in] August 2016, BNP Australia at [a location]’ relating to protests [at specified locations] against the jail sentence imposed on Tareq Rahman.

19. Photocopy of a screenshot of the [social media] account of the applicant, with a photo put on top of the screenshot of a protest [at a location]. This photocopy is marked as ‘protest [at location] [in] June 2018’.

20. Photocopy of a screenshot of the [social media] account of the applicant, with a photo put on top of the screenshot of a group of people. This photocopy is marked ‘celebrating victory day of Bangladesh in [Sydney] on 13 December 2015. There were two additional photographs of this meeting provided.

21. Photograph marked ‘general meeting’ and ‘EID’ at the [Sydney location] [in] June 2018.

22. Photograph marked ‘21 February 2018 [location]’

    Prior to the hearing on 1 August 2019, the applicant submitted the following documents to the Tribunal on 19 July 2019 (in a separate submission from the previous submission):

23. A 21 page submission dated 19 July 2019 from the applicant’s migration agent.

24. Two photographs identified as a protest held [at a location] [in] August 2016 against the verdict against Tareq Rahman.

25. Two photographs identified as a celebration of victory day in Bangladesh held 13 December 2015 at a [location].

26. A photograph which was identified as a protest meeting against the arrest of Shafik Rehman held [in] April 2016 at [a NSW location].

    Prior to the hearing on 1 August 2019, the applicant submitted the following documents to the Tribunal on 24 July 2019:

27. A letter [Mr E] certifying that there was a case against the applicant reference ‘[named] Police Station: Case [number]. The author wrote that the applicant was convicted and sentenced to [number] years imprisonment and a five thousand taka on [a date in] October 2014. The sentence was imposed by the [specified court] in Habigong and that the case was ‘political in nature’. The author wrote that the applicant’s father [named] was implicated in a case of a similar nature with case number [number] and that he was acquitted.

    Subsequent to the hearing on 1 August 2019, the applicant submitted the following on 8 August 2019:

28. A letter from [Mr E] who wrote that at the time of giving his oral evidence to the Tribunal, he was confused. He had a few clients with names similar to the applicant. He wrote that he was busy at the time of the Tribunal hearing as he was with other clients at that time. He explained that he had provided the wrong unique lawyer number to the Tribunal by mistake. He mixed up the information about meeting with the applicant in Bangladesh and instead met with the applicant’s cousin a few times about the applicant’s political case. The letter further explained that when he had given his oral evidence, he was giving evidence about a different person who had the same name as the applicant who also lives in Sydney.

    Subsequent to the hearing on 1 August 2019, the applicant submitted the following on to the Tribunal on 15 August 2019:

100.   A print-out from an International Federation for Human Rights press release dated 14 August 2019, drawing the Tribunal’s attention to the UN Committee Against Torture (CAT)’s published ‘Concluding Observations’ which expresses serious concerns about the widespread and routine commission of torture and ill-treatment by law enforcement officials, which is carried out with almost complete impunity. The submission noted that the CAT raised serious concerns about the numerous and credible allegations of the Rapid Action Battalion’s involvement in the commission of torture, arbitrary arrests, unacknowledged detention, disappearances, and extrajudicial killings of individuals in its custody. The CAT recommended an independent inquiry into these allegations.

101.   This print-out was attached to an email containing a submission which stated that there was a ‘complete breakdown’ of the rule of law and democracy in Bangladesh and that the country’s security and political situation have worsened, particularly since the last election in 2018. It was submitted that Bangladesh officials have arbitrarily deprived persons of their liberty, subsequently killed many of them, and failed to disclose their whereabouts or fate of opposition members, activists and people who are perceived as holding a political opinion against the Government of Bangladesh. It was submitted that the applicant was a political activist who would be perceived as supporting the BNP, and as a result, he would be particularly targeted. Based on the recent country information, it was submitted that he would face serious harm in Bangladesh.

Subsequent to the hearing on 1 August 2019, the applicant submitted the following to the Tribunal on 3 September 2019:

102.   An email submission from the migration agent that the DFAT Country Information Report for Bangladesh published on 22 August 2019 noted that:

103.   ‘Active members of opposition parties and auxiliary organisations (see relevant sections) who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists’.

104.   It was submitted that the applicant had participated in demonstrations and meetings expressing his political opinion. The applicant is an active member of the BNP and in particular, participated in the protest against the visit of the AL leader and Prime Minister of Bangladesh in 2018. The submission noted that the applicant provided details of his involvement with the BNP in Australia in his recent statement to the Tribunal, and that there is clear evidence that the applicant is an active BNP person.

Subsequent to the hearing on 1 August 2019, the applicant submitted the following documents on 21 October 2019:

105.   An email submission from the migration agent that the most recent country information confirms that the AL activists will target anyone who expresses a political opinion against the AL and will harm them. The submission stated that this supported the applicant’s case and that if the applicant were to return to Bangladesh he would be harmed and targeted. The enclosed country information was a BBC news report dated 9 October 2019 titled ‘Abrar Fahad killing: Bangladesh student was beaten for four hours’. The report detailed that members of the Bangladesh Chhatra League, which is the youth wing of the governing AL, were detained in connection with the death, with members of that youth wing being quoted in the report as questioning and beating the victim over his alleged links to an Islamist party. The report noted that this occurred after the victim posted on social media criticising the government over a water-sharing deal with India. The report, by way of analysis from the BBC reporter, noted that ‘torture of public university students by the student wing of the ruling parties is nothing new’.

ORAL EVIDENCE PROVIDED TO THE TRIBUNAL AT HEARING ON 1 AUGUST 2019

106.   The applicant provided oral evidence in person to the Tribunal at hearing.

107.   The Tribunal received oral evidence in person from [Mr C], the [Official 1] of the BNP in Australia.

108.   The Tribunal received oral evidence by telephone from [Mr E], the applicant’s lawyer in Bangladesh.

109.   The applicant requested that the Tribunal receive oral evidence by telephone from [Doctor A], the doctor who treated the applicant at [Hospital 1] in Bangladesh. The Tribunal’s view was that it would only do so if the Tribunal doubted whether the applicant had in fact been injured. Given the Tribunal’s findings, oral evidence from [Doctor A] was not necessary.

110.   The applicant requested that the Tribunal receive oral evidence by telephone from [name], his counsellor with [Welfare Agency 1]. The Tribunal’s view was that it would only do so if the Tribunal doubted that the applicant was being treated by that organisation. Given the Tribunal’s findings, oral evidence from [this counsellor] was not necessary.

111.   The applicant requested that the Tribunal receive oral evidence by telephone from Bangladesh of [Mr D], [an official] of the Bangladesh Nationalist Party of [Branch 2 in] Habiganj, who was the former member of the Bangladesh Parliament for [constituency]. On the day of the hearing, the applicant indicated that this person was unavailable to give evidence. The Tribunal has considered the contents of the letter from this person when making its findings.

FINDINGS AND REASONS

112.   The issue in this case is whether the applicant is a refugee or a person who meets the criteria for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the complementary protection criteria and holds a protection visa.

113.   By way of situational background, the 2 February 2018 Department of Foreign Affairs and Trade Country Information Report on Bangladesh provides that the AL (Awami League) and the BNP (Bnagladesh Nationalist Party) have dominated politics in Bangladesh since independence. The relationship is characterised by longstanding enmity, with both parties deriving their legitimacy from their claim to be the true heirs of Bangladesh nationalism. The AL lead the independence movement before and during the 1971 civil war, while the BNP holds as its institutional basis the ideology of Bangladesh nationalism. The rivalry between the two parties is also deeply personal at the highest levels; the AL’s leader (and current Prime Minister of Bangladesh) Sheika Hasina is the daughter of the ‘Father of the Nation’ Sheik Mujibur Rahman, the BNP’s leader, Khaleda Zia (a former Prime Minister), is the widow of the party’s founder, former General and President Ziaur Rahman.[1] Tareq Rahman, the son of Khaleda Zia and Ziaur Rahman, is their son and current acting chairman and vice-chairman of the BNP.

[1] 2 February 2018 Department of Foreign Affairs and Trade Report on Bangladesh at 3.51 to 3.52

114.   The Tribunal has considered all the material that the applicant has submitted in support of his protection visa.

115.   From the migration agent’s written submission, when read together with the applicant’s written statements and application for review, it is clear that the applicant claims that he has a well-founded fear of persecution on the basis of his political opinion. Although the submission of 19 July 2019 particularises that the applicant is a member of a particular social group, namely a member of the Bangladeshi diaspora who is involved in political activities in Australia, the essence of this claim is one of political opinion, whether that be in Bangladesh or outside of Bangladesh.

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

Evidence of applicant’s physical injuries from [Doctor A]

117.   The Tribunal accepts that the applicant was admitted to the [Hospital 1] on [a date in] February 2012 and discharged [later in] February 2012. The case summary/discharge reads that the applicant had a soft tissue injury present in multiple sites of the body, especially [one body part]. However, that report does not necessarily support that the applicant was injured in the circumstances as claimed. It may be corroborative evidence that the applicant was injured in the circumstances as he claimed, but how the Tribunal views the evidence of the physical injuries depends on whether the Tribunal finds the applicant’s claims credible. Otherwise, the report merely goes to confirm that the applicant has been injured. Given the Tribunal’s concerns as noted throughout the decision about the credibility of the applicant as a witness, the Tribunal is not satisfied that the report about the applicant’s physical injuries corroborate that he was injured in the circumstances as claimed. The Tribunal is not satisfied that the soft tissue injury present in multiple sites of the body was a result of the applicant being assaulted as claimed.

Evidence about the applicant’s mental health and treatment in Australia

118.   The Tribunal accepts that the applicant has been prescribed medication for anxiety, stress, and depression. The Tribunal also accepts that the applicant has engaged with [Welfare Agency 1] since May 2019. According to the [that agency’s] report, the applicant appears anxious and worried, noting that the applicant suffered a physical assault in Australia and 8 months of verbal abuse during his employment in Australia. The applicant’s engagement with [Welfare Agency 1] and the ‘treatment for psychological difficulties associated with his experiences of trauma and settlement’ may be corroborative of his claimed past harm in Bangladesh. Conversely, the psychological difficulties that the applicant has, such as his anxiety and an attendance at [Hospital 2] for anxiety and suicidal thoughts may be for matters not related to his claimed past harm in Bangladesh. Given the Tribunal’s concerns as noted throughout the decision about the credibility of the applicant as a witness, the Tribunal is not satisfied that the evidence about the applicant’s mental health challenges are associated with his claimed past harm in Bangladesh. The Tribunal is satisfied that the applicant’s mental health concerns have arisen for other reasons, most probably the stress associated with applying for a protection visa application and the uncertain fate of his application.

Delay in application for a protection visa

119.   The applicant arrived in Australia [in] August 2013 but did not apply for a protection visa until 15 August 2014. This concerned the Tribunal because, according to the applicant’s written statement, after the incident [in] February 2012 when he was attacked and required hospitalisation, the applicant’s father started thinking about the applicant’s safety and became determined to send the applicant overseas. The Tribunal notes that the applicant claims to have been attacked in December 2011 and February 2012, and that a ‘false case’ had been filed against the applicant when his parents went to report the February 2012 attack. Further, the fact that the applicant’s father ‘managed the police to make a clean statement for me by paying bribes’ so that the applicant could depart Bangladesh, would suggest that the applicant was a person who was of considerable interest to the authorities. Yet, the applicant arrived in Australia and did not apply for a protection visa for 12 months.

120.   The Tribunal raised its concern with the applicant about the delay in seeking protection and the applicant reiterated the content of his statement that he believed that there would be a general election that would be held under a caretaker government with international supervision, and that the applicant would be able to return to his country after such an election, because there was a belief that the BNP would win this election. The Tribunal also notes that the applicant’s written statement was that his father would be able to fix the entire problem while the applicant was in Australia.

121.   The Tribunal has considered this response but is not persuaded by it. To the Tribunal’s way of thinking, it would be unreasonable to believe that the applicant, who claims to have experienced physical attacks, and has come from a family involved in BNP politics (with his father being imprisoned on false cases) would come to Australia and not lodge a protection claim soon after his arrival. There was never a guarantee that the BNP would win any election, and it is curious to the Tribunal’s way of thinking that the applicant would believe that his father, who has been the target of the AL in the past, would somehow be able to remedy the situation in Bangladesh within one year so that it would be safe for the applicant to return to Bangladesh. The delay in the applicant lodging a protection visa application, when considered with the other concerns that the Tribunal has, leaves the Tribunal in a position where it is not satisfied that the applicant was previously harmed in Bangladesh as claimed, or that he was involved in political activity in Bangladesh as he claimed.

Delay in departure from Bangladesh

122.   On 2 June 2013, the applicant was granted a visa that allowed him to travel to Australia, yet the applicant did not depart Bangladesh to come to Australia until [August] 2013. This is a period of two and a half months. The Tribunal asked the applicant why he did not leave Bangladesh quickly, noting that he had a visa to Australia for over two months before he arrived here. The applicant responded that he did not intend to go overseas forever, that he went to [Country 1] for some time (according to the forms, this was [a period ending in early] August 2013) and that he believed the situation in Bangladesh was improving, but when he returned to Bangladesh, he found the situation had not improved at all. It was at that time his family suggested that he leave for a peaceful life in Australia. He told the Tribunal that he did not remain in [Country 1] because he did not have money to stay there, and he could not stay there indefinitely. If he remained illegally in [Country 1], he would be prosecuted and the AL is close to the [Country 1] government.

123.   The Tribunal has considered the applicant’s response to its concerns about the delay in travelling to Australia on his visa, but is not persuaded by his response. To the Tribunal’s way of thinking, it is incredulous that the applicant, who claims to have experienced harm in Bangladesh, would be granted a visa to come to Australia in June 2013, but would not depart for Australia soon after such a visa was granted, especially when, according to his written application, his family secured police clearance via a bribe so that a visa to travel to Australia could be issued. The Tribunal really struggles to accept that the applicant would obtain a visa to travel to Australia, but would instead travel to [Country 1], and then return to Bangladesh, instead of travelling to Australia if the applicant experienced harm in Bangladesh as he claimed. Additionally, apart from broad references to the situation ‘not improving at all’ when the applicant returned to Bangladesh from his trip to [Country 1], the applicant did not disclose any particular incident that would act as an incentive for him to depart Bangladesh, such as another physical attack. The delay in the applicant travelling to Australia, when considered with the other concerns that the Tribunal has, leaves the Tribunal in a position where it does not accept that the applicant was previously harmed in Bangladesh as he claimed.

Departure and return to Bangladesh on two occasions

124.   The applicant left Bangladesh and returned there on two occasions. The first travel out of Bangladesh was between [two dates in] September 2011 when the applicant travelled to [Country 1]. The second occasion was, as discussed above, [a period ending in early] August 2013. The applicant gave evidence that he first travelled to [Country 1] because he had been threatened on and off since 2008, and he used that time as a holiday because he was depressed about what had been occurring. He told the Tribunal it would be difficult for him to extend his visa to remain in [Country 1] and he was running out of money, so he decided to return to Bangladesh. He took the second trip because he was assaulted in February 2012 and was scared, and been hiding in different places.

125.   The Tribunal has considered the applicant’s evidence about why he travelled out of Bangladesh and returned to Bangladesh on those two occasions in light of his evidence that he had been threatened on and off since 2008 (with an attack on the family home in 2008) and that, in the context of the second trip to [Country 1], this occurred after he had been attacked in December 2011 and February 2012. The Tribunal struggles to accept that the applicant would voluntarily return to Bangladesh on each of those occasions if what he claims occurred in Bangladesh actually happened. The return to Bangladesh, when considered with the other concerns that the Tribunal has, leaves the Tribunal in a position where it is not satisfied that the applicant has previously been harmed in Bangladesh, or engaged in political activity as he claimed.

Evidence of [Mr E]

126.   The applicant put forward [Mr E] as a witness in support of the applicant’s claims. The applicant told the Tribunal that [Mr E] was his lawyer in Bangladesh. The applicant told the Tribunal that [Mr E] has been acting as his lawyer in Bangladesh since 2012 or 2013. The applicant spoke to [Mr E] over the telephone initially, and handed all of his court documents to a cousin who then gave the documents to [Mr E]. The applicant told the Tribunal that he had never physically met with [Mr E].

127.   A person who was identified as [Mr E] gave evidence to the Tribunal by telephone. The telephone number provided for [Mr E] was the same number that appeared on the Bangladesh [Legal Agency 1] website. The Tribunal is satisfied that it was speaking to [Mr E], a lawyer in Bangladesh. [Mr E’s] evidence was that he met the applicant a couple of times in [Mr E’s] office when the applicant visited his chambers. This was in 2014. [Mr E] told the Tribunal that the applicant’s court documents were personally collected by [Mr E] from the court and that he sent those documents to the applicant sometime ‘this year’ (2019).

128.   Utilising s.424AA the Tribunal raised with the applicant the conflict between the applicant’s evidence and that of [Mr E]. [Mr E] has said that he met with the applicant in person on a number of occasions, while the applicant said he had never personally met him. [Mr E] told the Tribunal that it was he who obtained the court documents and sent them to the applicant sometime this year, while the applicant’s evidence was that the applicant’s cousin provided the court documents to [Mr E]. To the Tribunal’s way of thinking, this inconsistent evidence undermined the credibility of the evidence of both the applicant and [Mr E], as it would be reasonable to expect that there would be consistency between whether the applicant and his lawyer met in person, and about the production of the court documents.

129.   The evidence about the production of the Bangladesh court documents was concerning. The applicant told the Tribunal that it was his cousin who provided the court documents to [Mr E], while [Mr E] told the Tribunal that it was he who obtained those documents from the court and sent them to the applicant in 2019. No such documents were sent to the applicant, with the only document being a letter from [Mr E] ‘certifying’ that the applicant had been found guilty and sentenced [in] October 2014. The Tribunal noted to the applicant that he had provided the court documents to the delegate at interview (May 2015), which would make [Mr E’s] evidence that he obtained the documents from the court and sent them to the applicant impossible (assuming that the documents, particularly the court order in Folio 120 of the department file) are the documents to which [Mr E] was referring. The applicant responded to the Tribunal’s concern by indicating that he did not know why [Mr E] had given the evidence he did, and suggested that [Mr E] may have forgotten what had actually occurred. The applicant re-affirmed that he had never met [Mr E] personally and that his court documents were genuine.

130.   The Tribunal also raised with the applicant a concern over [Mr E’s] evidence about his unique ‘ID’ number which was provided to the Tribunal as [number], which [Mr E] had said was a number allocated to him and not anyone else. The Tribunal had seen that such a number was allocated to another lawyer in Bangladesh, who was a member of [a related Legal Agency]. The Tribunal does not rely upon this conflict when assessing the credibility of [Mr E], because it is satisfied that this number relates to the lawyer ID for each association.

131.   As noted earlier, a letter arrived soon after the hearing from [Mr E]. In that letter, [Mr E] wrote that he was confused when he gave his evidence to the Tribunal. He was busy in court on the day of the hearing, and because he has a few clients who have similar names, he gave evidence about the incorrect client. In the letter, he wrote that he had never met the applicant but had seen the applicant’s cousin a few times in relation to the case.

132.   The Tribunal has considered the applicant’s response to the concerns it raised with him via the s.424AA process regarding [Mr E’s] evidence. The Tribunal has also considered the response from [Mr E] in the subsequent letter. The Tribunal is not persuaded by the responses. In the telephone evidence to the hearing, [Mr E] did not seek clarification from the Tribunal about whom it was talking, which would be expected if [Mr E] had multiple clients all with the same name. Why [Mr E] would speak about one [applicant name] as opposed to another [same name] is unclear. Further, the suggestion in the letter by [Mr E] that he was ‘busy in court’ with my other clients’ when he gave his evidence is not supported by the way [Mr E] gave his oral evidence, where he did not express to the Tribunal that he was not a convenient time for him to give oral evidence, or that he was in the middle of dealing with clients. Indeed, [Mr E] spent time with the Tribunal in front of a computer where he directed the Tribunal to the website of the [Legal Agency 1] website to confirm his identity, and spend considerable time doing so. In the Tribunal’s view, the subsequent letter from [Mr E] was an attempt to fix up the previous oral evidence because it was in conflict with the oral evidence given by the applicant. The inconsistent evidence about whether the applicant actually met [Mr E] in person, together with the inconsistent evidence about the production of the court documents, when considered together with the other concerns that the Tribunal has, leaves the Tribunal in a position where it places no weight on the evidence of [Mr E]. The Tribunal is not satisfied that [Mr E] was telling the truth about the applicant having criminal cases against him and fabricated this evidence, and the evidence about the production of the court documents, to lend credibility to the applicant’s claims.

Involvement in the ‘executive committee’ of the BNP in Bangladesh

133.   The Tribunal was also concerned by the fact that in the written application for protection, the applicant did not claim that he held any office of the BNP while he was in Bangladesh. Nor did the applicant tell the delegate at interview that he held any such position. He was asked about by the delegate about his involvement with the BNP in Bangladesh, and did not claim to have held any executive role. Yet, in documents that the applicant produced to the delegate at interview, there was reference in some of the documents submitted about the applicant being ‘an [official] of the executive committee of the Bangladesh Nationalist Student Party of [Branch 3].’

134.   The applicant told the Tribunal that there was no mention of his leadership role during his time in Bangladesh because his migration agent at the time must have overlooked the fact. The applicant put this down to an oversight on behalf of his then migration agent. The Tribunal does not accept that this is the case, because the applicant’s statement was able to detail that the applicant was a member of the BNP in a certain union. The Tribunal struggles to accept the failure to failure to detail a leadership role would occur unless the applicant had no such leadership role. Further, even if for the sake of argument, a failure to detail the leadership role could be put down to a migration agent, that does not explain why the applicant failed to tell the delegate that he held such a role, instead telling the delegate that he had been an acting member before formally joining the BNP in 2008. This would have been an opportune time for the applicant to tell the delegate about his role as a member of the executive committee, yet he did not do so.

135.   The Tribunal asked the applicant if he told the delegate about his leadership role with the BNP in Bangladesh and he said that he did. Listening to the recording of the delegate interview makes it clear that the applicant never claimed that he was a member of an executive committee. The migration agent, at the conclusion of the hearing, indicated he wished to listen to the delegate interview to confirm that this was the case, and advised the Tribunal that he would send a subsequent submission to the Tribunal about this fact if the Tribunal was wrong in its understanding that the applicant never claimed to be a member of the Executive Committee while he was in Bangladesh. The agent never provided a submission to suggest otherwise. The Tribunal utilised s.424AA and invited the applicant to comment on is failure to mention his role as a member of the executive committee at the delegate interview. The applicant responded that he was asked what he did, and what his job function was. He said the delegate did not refer to ‘[deleted] committee’ or ‘[official position]’ but he remembered submitting papers which explained the jobs he performed and the works he did. The Tribunal is not persuaded by this response. It is understandable that the delegate would not have known about the applicants alleged role as a member of the executive committee having been provided documentation which asserted this fact on the day of the interview. Further, there applicant referred to his works as a member of the party, the evidence he provided was that he was what could be described as an ordinary member. It was up to the applicant to tell the delegate all relevant information, which would include his leadership positions. The Tribunal considers the fact that there was no mention of the applicant’s role as a member of the BNP executive in his original written application, nor mention of this at the delegate hearing, to demonstrate that the applicant never held such a role. If he did, the Tribunal is satisfied that the applicant would have detailed such a role in the written statement or at the delegate interview. This evidence, when considered in combination with the other concerns that the Tribunal has, leaves the Tribunal in a position where it is not satisfied that the applicant was ever involved in political activity in Bangladesh. This demonstrates to the Tribunal that the applicant is willing to fabricate evidence to create protection claims.

136.   The Tribunal has considered the contents of the letter from [Mr D], which states that the applicant was a member of the executive committee from ‘2009 to 2013’, was ‘very active in politics’, and that the applicant had been threatened and his life was in danger. The Tribunal gives that document no weight and is satisfied that the assertions do not overcome the significant concerns that the Tribunal has about the credibility of the applicant, and is satisfied that the assertions contained in the letter are fabricated to assist the applicant with his protection visa application.

137.   The Tribunal has also considered the applicant’s oral evidence at hearing that documentation which would have demonstrated that he was involved in political activity in Bangladesh was lost. This related to the letter from the applicant’s accountant concerning an envelope which was to include these documents that was found opened and discovered by that accountant in August 2016. The applicant told the Tribunal that these documents were sent to the applicant from a person who lives in [another city] who ‘brought the documents from Bangladesh’ and was sending them to the applicant. Given the other concerns that the Tribunal has with the applicant’s credibility, the Tribunal does not accept that any such documents existed and were sent to the applicant via his accountant. The Tribunal is willing to accept that the applicant’s accountant discovered an open envelope addressed to the applicant, but not that it contained any documents supportive of the applicant’s political activity in Bangladesh.

Travel to [Country 2]

138.   The Tribunal was also concerned about the evidence that the applicant gave about his reason for travelling to [Country 2] between [specified dates in] March 2017. The applicant confirmed this travel at the Tribunal hearing. The purpose of this travel was related to a potential work visa. The applicant was working in Australia and his employer was pleased with him, and was willing to sponsor him for an employment visa. The applicant was told by a migration agent that he needed to go outside of Australia before he could lodge a visa connected with his employment. The Tribunal raised with the applicant, under s.424AA its concerns about this evidence, because the applicant had in fact applied to the department to be granted a bridging visa with permission to travel to [Country 2] and stated that the purpose of the travel was to accompany his mother to a medical examination. This was in conflict with his oral evidence about the reason for his travel to [Country 2]. To the Tribunal’s way of thinking, it demonstrated that the applicant had a flexible approach to the truth. In response to the Tribunal’s concerns, the applicant told the Tribunal that his mother was supposed to travel but that she could not make it because there was an issue with the spelling of his mother’s name on her passport so she could not travel for the medical appointment. The applicant told the Tribunal that the main purpose of his travel was his mother’s medical treatment, and the second reason for his travel was to lodge a work visa for Australia in [Country 2]. The Tribunal was troubled by this evidence, given that the applicant disclosed no such intention in his application for permission to travel out of Australia in his bridging visa forms. To the Tribunal’s way of thinking, this demonstrates that the applicant is willing to not be completely frank in his immigration dealings, as he would have disclosed his joint purposes for this travel in his application for permission to travel if he were a person who was completely open and honest. This, in combination with the other concerns that the Tribunal has, leads the Tribunal to conclude that the applicant is not a truthful witness.

Ability of applicant to obtain a new passport

139.   At the Tribunal hearing, the applicant provided a copy of his Bangladesh passport which had been issued [in] 2017. The passport was endorsed with the signature of the [an official] of the Bangladesh High Commission in Canberra. The Tribunal has had regard to the fact that the Bangladesh Department of Immigration and Passports conducts immigration checks and maintains a list of convicted criminals and persons wanted by security forces and intelligence agencies. The department mostly uses the list to determine whether to issue passports but may also use it to prevent people from leaving the country. Authorities can refuse to issue passports to people who have been convicted of war crimes, moral turpitude or smuggling, where they are suspected of leaving to avoid criminal proceedings, where they are likely to engage in activities outside of Bangladesh prejudicial to the sovereignty, integrity or security of Bangladesh, or where it would be contrary to the public interest. DFAT is aware of cases in which authorities have prevented both senior members of the BNP leadership and ordinary members from leaving the country.[2] Given this information, the Tribunal found provision of a new passport to the applicant curious for two reasons.

[2] 2 February 2008 Department of Foreign Affairs and Trade Report on Bangladesh at 5.20

140.   Firstly, the Tribunal struggled to understand that the applicant, who fears the AL controlled government in Bangladesh, would attend upon that Government’s diplomatic mission in Australia to obtain a new passport. In the Tribunal’s view, it was not consistent with the applicant’s claimed fear of the Government of Bangladesh. Secondly, the Tribunal struggled to accept that the Government of Bangladesh would issue a new passport to the applicant when he was sentenced to [number] years imprisonment in October 2014, when country information suggested that this would not occur. The applicant responded to the Tribunal’s assessment that the Government of Bangladesh would not issue him with a passport by stating that his brother in Bangladesh had arranged for the passport to be issued through a broker in Bangladesh. The broker had told the applicant’s brother to apply for an ‘urgent passport’ which would mean that the passport was issued pending police inquiries which would be conducted later on. The Tribunal has not been presented with any information to suggest that applying for an ‘urgent passport’ would sidestep any criminal records checks. The Tribunal is satisfied that the applicant was able to be issued a new Bangladesh Passport because there are no criminal cases against the applicant in Bangladesh, he is of no adverse interest to Bangladesh authorities or the AL who are in power, and is satisfied that the applicant attended on the Bangladesh High Commission because he has no fear of the Government of Bangladesh or the AL, despite telling the Tribunal that he was frightened when attending the High Commission.

Document fraud in Bangladesh

141.   The Tribunal has had regard to information about the prevalence of fraudulent documents in Bangladesh. A November 2014 UK report cited in a 2010 report by the Immigration and Refugee Board of Canada stated that ‘there is a significant prevalence of fraudulent documents in Bangladesh, including passports, birth certificates, bank statements, taxation documents, business documents, school documents, marriage certificates.[3] In the Tribunal’s assessment, and noting that the report does not limit the type of documents which may be the subject of fraud and cites these particular types of documentation as examples, it is clear that a variety of documents purporting to be official government documents can be the subject of fraud in Bangladesh. The Tribunal put to the applicant that document fraud is prevalent in Bangladesh, and the applicant conceded that this may be true. However, the applicant stated that the documents he submitted were genuine.

[3] OG180885B43: Country Information and Guidance Bangladesh: Background information, including actors of protection, and internal relocation”, UK Home Office, 28 November 2014

142.   The Tribunal has considered this country information in light of the concerns that the Tribunal has about the applicant’s other evidence as discussed in this decision. Given the Tribunal’s concerns about the truthfulness of the applicant for the reasons outlined, and the independent of the country information about document fraud in Bangladesh, the Tribunal places no weight on the documents that originated from Bangladesh, and is satisfied that they were manufactured in an attempt to support a protection claim.

Involvement with BNP political activities in Australia

143.   The applicant was advised by the Tribunal that it was required to exclude for the purpose of the refugee criteria any conduct he engaged in while in Australia unless he satisfied the Tribunal that this conduct was not done solely for the purpose of strengthening his protection visa application: s.91R(3).

144.   The Tribunal has had regard to the evidence about the applicant’s role with the BNP branch in Australia. However, the Tribunal was concerned by the fact that the applicant made no mention at the interview with the delegate that he was involved with the BNP in Australia, especially when the evidence before the Tribunal of [Mr C], the [Official 1] of the BNP in Australia was that he met the applicant at the end of 2014 or the beginning of 2015. In the Tribunal’s view, the applicant would have mentioned that he had started to get involved with the BNP in Australia at his delegate interview, because it would have been capable of supporting an argument that the applicant had a bona fide interest in BNP politics, and that there was a continuation of his political activities in Bangladesh to Australia. The applicant told the Tribunal that he was very much involved with the BNP in Australia but did not realise that it was important to raise this during the delegate interview, putting it down to a mistake or an oversight on his behalf. The Tribunal has considered the applicant’s response about failing to raise his involvement with the BNP in Australia in both his written protection visa application and delegate interview and is not satisfied that the applicant would fail to detail his involvement with political activities in Australia if he was actually engaging in those activities at the time he lodged his protection visa application, or at the time of the delegate interview.

145.   Given the applicant’s own statutory declaration about his attendances at meetings and protests ‘since 2014’, it is curious to the Tribunal that this statement does not provide any specific attendances or activities until 2017. When the Tribunal considers this evidence in light of the applicant failing to detail any involvement with the BNP in Australia in his original written application or at the delegate interview, the Tribunal is satisfied that the applicant, despite meeting [Mr C] in either 2014 or 2015, did not become involved in BNP activities in Australia until after the delegate interview in May 2015. The Tribunal concludes from this that despite [Mr C] telling the Tribunal that he met the applicant in 2014, this evidence has been fabricated. The Tribunal is satisfied that [Mr C] met the applicant subsequent to the delegate interview and became involved in the BNP in Australia after that time.

146.   The Tribunal notes that when it asked the applicant about whether he could provide any evidence of his involvement with the BNP in Australia prior to the delegate decision in September 2015, the applicant said that he may have some text messages. None of these messages were provided to the Tribunal. The applicant was invited to direct the Tribunal to any part of the material that he had provided to the Tribunal that would be able to demonstrate that he was involved in the BNP in Australia prior to September 2015. He could not do so. The applicant then told the Tribunal that the reason he could not do so was because his migration agent had only asked him to provide evidence of his BNP activities in Australia for the last two years. The Tribunal faced putting the migration agent in an awkward position if it asked whether this was the case, and the migration agent indicated that he would prefer not to answer this question. After a short break to allow the migration agent and the applicant to discuss the matter further, the applicant said that although he told the Tribunal earlier that the migration agent asked only for evidence of the past two years of his involvement with the BNP in Australia, the applicant ‘maybe forgot’. The Tribunal indicated that it found this evidence confusing. The applicant then said he ‘thought the migration agent did not say that’. The Tribunal indicated that it considered the applicant’s changing evidence to undermine his credibility as a witness, and that he was willing to change his evidence in an attempt to address concerns that the Tribunal had regarding the lack of evidence about his involvement with the BNP in Australia prior to the delegate decision. The applicant said that this could be attributed to forgetfulness, and that he forgets things because of depression and anxiety. The applicant told the Tribunal that ‘maybe’ his migration agent did tell him that he needed to provide evidence of all activities for the BNP in Australia ‘from the beginning’, but maybe the applicant forgot about this.

147.   The Tribunal did not find the applicant convincing about this point. The applicant’s initial oral evidence was that his migration agent told him that only needed to provide two years’ worth of evidence about his involvement with the BNP in Australia. Forgetting something is not the same as positively asserting a fact as the applicant did. In the Tribunal’s view, the applicant manufactured his evidence that he had been told by his agent to only provide two years’ worth of evidence to address the Tribunal’s concerns about the lack of evidence about his involvement with the BNP in Australia from his arrival in Australia until after the delegate decision in September 2015. The Tribunal is satisfied that the applicant has a flexible approach to the truth and is willing to say things that are not true to achieve a migration outcome.

148.   The Tribunal accepts that the applicant has attended a number of activities associated with the BNP in Australia since 2017 as outlined in his statement. The Tribunal accepts that the applicant was elected as an [Official 2] for the BNP in Australia. However, the Tribunal is not satisfied that this was done for a purpose other than to strengthen the applicant’s claims for protection. The Tribunal must therefore discount this conduct for the purpose of determining whether the applicant meets the criteria for a ‘refugee’, and the Tribunal has done so.

149.   The Tribunal then must turn its mind to whether the applicant’s conduct in Australia through his involvement with the BNP in Australia means that there are substantial grounds for believing that there is a real risk that the applicant will face significant harm if he was removed from Australia to Bangladesh. For the reasons given above, the Tribunal does not accept that the applicant was involved in BNP politics in Bangladesh, and the only reason he became involved in the BNP in Australia was to generate a protection claim. Therefore, the Tribunal is satisfied that if the applicant was to return to Bangladesh, he would not resume previous political activity there (because there was no such activity previously), and any activity in Australia would not translate to political activity in Bangladesh, because his involvement was not due to a genuine political belief or interest.

150.   The Tribunal then needs to determine whether the applicant faces a real risk of significant harm in Bangladesh because he has been involved in activities with the BNP in Australia, even if his conduct was not done in good faith. Although the applicant’s statutory declaration refers to there being an ‘active AL group in [Australia] which ‘we hear is involved in monitoring the activities of the BNP people in Australia’, there is nothing before the Tribunal to suggest that this is the case. Although the DFAT country information report assesses that ‘authorities may take an interest in high profile individuals who have engaged in political activities outside of Bangladesh’[4], in the Tribunal’s view, the applicant is readily distinguishable from this category of people. There is no persuasive evidence before the Tribunal to suggest that the AL or the Government of Bangladesh are aware of the applicant’s conduct while in Australia, and given that same report notes that ‘DFAT assesses that most returnees, including failed asylum seekers are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily to Bangladesh’[5], the Tribunal is satisfied that even on the remote possibility that the AL or the Government of Bangladesh became aware that the applicant had engaged in activity with the BNP in Australia, his activity in Australia would been considered as occurring only as a means of remaining in Australia, not because of any genuine political opinion, and he would therefore be of no adverse interest to the AL or authorities in Bangladesh. The Tribunal does not accept the proposition that any Bangladesh citizen who engages in political activity in Australia supportive of the BNP, or any activity critical of the AL or Bangladesh Government, faces a real chance of serious harm, or a real risk of significant harm, upon return to Bangladesh.

[4] 2 February 2018 Department of Foreign Affairs and Trade Report on Bangladesh at 5.23

[5] 2 February 2018 Department of Foreign Affairs and Trade Report on Bangladesh at 5.23

151.   The Tribunal makes this finding having considered the updated 22 August 2019 DFAT Country Information Report on Bangladesh (published post hearing) which was relied upon by the applicant in a subsequent submission, drawing the Tribunal’s attention to the assessment that ‘active members of opposition parties and auxiliary organisations (see relevant sections) who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists’[6]. However, that refers to activity occurring in Bangladesh, and for the reasons discussed, the Tribunal is not satisfied that the applicant has previously engaged in any form of political activity in Bangladesh, nor is the Tribunal satisfied that the applicant will engage in such activity upon return to Bangladesh.

[6] 22 August 2019 Department of Foreign Affairs and Trade Report on Bangladesh at 3.70

152.   The Tribunal has also considered the submission received from the applicant about a Bangladeshi undergraduate student being killed in his dormitory after criticising the Bangladeshi government online though social media. The Tribunal is not satisfied that the applicant has engaged in any such criticism while he was in Australia, and does not accept that he will do so upon his return to Bangladesh. The only social media posts provided to the Tribunal were publications of a photo of the applicant attending a BNP meeting in [a suburb] ([in April] 2016) and a birthday celebration of Khaleda Zia (23 January 2017) and the screen shot of his [social media] account ([in] December 2015), none of which contained any criticism of the AL or the Government of Bangladesh. There is no real risk of harm to the applicant as he has not engaged in online criticism of the Bangladesh Government or the AL in the past, and the Tribunal is not satisfied that he will do so in the future.

CONCLUSION

153.   When the Tribunal considers the applicant’s claims as a whole, it comes to the conclusion that the applicant was not involved in any political activity related to the BNP in Bangladesh. The Tribunal is also not satisfied that the applicant’s father was involved in political activity or harmed in any way. The Tribunal does not accept that the applicant is a witness of truth in regards to either his or his family’s claimed experiences in Bangladesh, or his reasons for leaving Bangladesh.

154.   The Tribunal is not satisfied that the applicant has been the subject of criminal charges in Bangladesh, and is not satisfied that the applicant left Bangladesh because of his political opinion, or because of any fear of harm. The Tribunal is not satisfied that the applicant lodged a protection visa application because he has a well-founded fear of persecution, and is not satisfied that the applicant became involved with the BNP in Australia for a reason other than for the sole purpose to strengthen his protection visa application. The Tribunal is not satisfied that there is a real chance of serious harm to the applicant based on his alleged political activity in Bangladesh, nor is the Tribunal satisfied that any conduct engaged in by the applicant in Australia means there is a real risk of serious harm to the applicant if he were to return to Bangladesh.

155.   The Tribunal is satisfied that the applicant invented a backstory as a means of claiming protection in Australia, and has only become involved with the BNP in Australia to achieve a migration outcome, not because of any genuine political interest in the BNP. The Tribunal rejects the applicant’s claims in their entirety.

Refugee

156.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

Complementary Protection

157.   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). 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)(aa).

Member of the same family unit

158.   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

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

Nathan Goetz
Member