1516321 (Refugee)

[2019] AATA 828

1516321 (Refugee) [2019] AATA 828 (3 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516321

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Paul Millar

DATE:3 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 03 January 2019 at 8:59am

CATCHWORDS

REFUGEE – protection visa – Bangladesh – complementary protection criterion – religion – Hindu – political opinion – BNP supporter – threats from Awami League – Muslim – fear of harm from small businessman – kidnapping of son – false charges – concerns over credibility – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 65, 424, 499
Migration Regulations 1994, Schedule 2

CASES

SZGIZ v Minister for Immigration and Citizenship

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).  The first named applicant is a [age deleted] year-old man (‘the applicant’) and the second named applicant is his son.  The applicant’s son applied for protection as a member of the applicant’s family unit and as someone who does not have his own claims for protection.  The applicants, who the Tribunal finds to be citizens of Bangladesh, applied for the visas on 1 November 2012 and the delegate refused to grant the visas on 3 November 2015.[1]  The applicants appeared before the Tribunal on 12 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

   [1] The Tribunal's finding on citizenship is based on copies of pages from the Bangladesh passports of the applicant and his son which appear at folios 1 – 4 of the Department file.

   RELEVANT LAW

2. 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.

3. 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).

4. 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.

5. 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’).

6. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   FINDINGS

7. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  The applicants arrived in Australia in April 2009 as the holders of temporary visas.  In June 2009 the applicants applied for protection.  The Department refused their applications, a decision affirmed by the former Refugee Review Tribunal (‘the first Tribunal’).[2]  The applicants pursued judicial review of that decision through the courts but were unsuccessful.  Subsequent requests for ministerial intervention were also declined.  In November 2012 they again applied for protection and, pursuant to the decision of the Federal Court in SZGIZ v Minister for Immigration and Citizenship, the Department accepted the application.  On the basis of this Federal Court decision, consideration of this application is restricted to determination of whether the applicants meet the complementary protection criterion.  

   [2] See RRT Case Number 0907932 (5 February 2010).

8. According to his evidence to the Department and the Tribunal, the applicant claims protection on the grounds that the Awami League and certain Muslim small business owners will harm him.[3]  The Tribunal holds the following concerns about the credibility of the applicant.

   Credibility concerns

   Fear of harm from Muslim small businessmen

   [3] With respect to this current protection visa application, the applicant's evidence to the Department and the Tribunal comprises the contents of the protection visa application forms; the applicant's evidence at his interview with the delegate for which there is an audio recording and to which the Tribunal has listened and the evidence of the applicant and his son at the Tribunal hearing.  The Tribunal had access to Department file [relating] to the first protection visa application. 

9. To the Tribunal, the applicant said that he operated a successful business in Bangladesh.  He said that approximately one and a half years before leaving Bangladesh he closed his business.  The Tribunal put to the applicant that if he left Bangladesh in April 2009 he therefore closed his business in approximately late 2007.  In response, the applicant said that was roughly correct.  When asked why he closed his business at that time, the applicant said that he was afraid that he would be killed.  The applicant said that he had to close his business because other small business owners, who were Muslims and slow to pay their debts, were unhappy with him.  This was because the applicant always paid his debts on time and that made him a better businessman.  They began to make threats against him when the Awami League came to power in 1996. They would try to harass him in the market but he was not assaulted by them.

10. When asked why he left Bangladesh in April 2009, the applicant mentioned two issues.  He said that there was the problem caused by the Muslim small business owners and the other problem was the Awami League related to his support for the BNP.  When asked what he feared would happen to him at the time he left Bangladesh, the applicant again repeated his fear of being harmed by small business owners who were Muslims and the Awami League.  He later added that Hindus had been harmed in Bangladesh on the ground of their religion.  He said that Hindus in his locality had been forced out of the area and been tortured. 

11. By letter dated 18 June 2018, pursuant to s.424A of the Act, the Tribunal put to the applicant that in his written statement lodged with his first protection visa application (‘the written statement’), the applicant claimed to fear harm in Bangladesh from supporters of the Awami League and the police acting on behalf of that party because of his support for the BNP.  In his evidence to the first Tribunal, the applicant claimed to fear harm in Bangladesh on those same grounds.[4] He added that Muslims in the Awami League would harm Hindus.  The applicant did not advance a fear of harm from Muslim small businessmen in his written statement nor in his evidence to the first Tribunal.[5] 

    [4] See RRT Case Number 0907932 (5 February 2010) at [84].

    [5] See RRT Case Number 0907932 (5 February 2010) at [171].

12. By letter dated 31 July 2018, the applicant submitted that the owners of the small businesses who had threatened him were Muslims and Awami League supporters.  They were more aggressive toward him as they wanted to force him as a Hindu to support the Awami League.  He submitted that, therefore, in his evidence to the first Tribunal and in the written statement, his reference to harm from the Awami League was a reference to harm from these small business owners.  The Tribunal rejects that submission because, at the Tribunal hearing, the applicant made no claim that these business owners were from the Awami League.  He discussed these small business owners and the Awami League as separate groups.  To the first Tribunal and in the written statement, similarly, the applicant makes no mention of the small business owners, only the Awami League.  His evidence is inconsistent and he has not provided a satisfactory explanation for that.

    Evidence about political activities

13. The Tribunal asked the applicant what political activities he undertook for the BNP in the 18 month period between closing his business in late 2007 and leaving Bangladesh in April 2009.  Initially, the applicant said that he did not undertake any political activities because, had he done so, there would have been adverse consequences.  Further in the hearing, the Tribunal asked the applicant what the last activity he undertook for the BNP was.  In response, the applicant was vague stating that he slowly wound down his activities and involvement with the BNP when that party was about to lose power and the Awami League was coming up.  When asked in what year he ceased his activities, the applicant said that he could not remember.

14. To attempt to clarify and be certain about when the applicant ceased his political activities in Bangladesh, the Tribunal specifically asked him whether he undertook activities for the BNP in relation to the election held in Bangladesh in 2008 which was won by the Awami League.  In response, the applicant said that he did some activities but ‘not to the full extent’.  The Tribunal asked the applicant what activities they were. In response, the applicant said that he would go away from his local area and ask people to vote for the BNP.  The Tribunal put to the applicant that his claim that he did not undertake activities to the full extent suggested that he did very little in this period. In response, the applicant said that was correct. He said that it was at that time he was doing less political work as he was afraid for his safety.  The Tribunal asked the applicant whether in this period he assisted a particular BNP leader or candidate. In response, the applicant mentioned [an official] X and a leader named Y. 

15. By letter dated 18 June 2018, pursuant to s.424A of the Act, the Tribunal put to the applicant that this evidence appeared to be inconsistent with his written statement in which he said that for the elections held in December 2008, he worked for a different BNP leader, namely Z, senior leader and candidate for the BNP.  Further, in his written statement, in describing the extent of his political activities for these elections, he said that he ‘paid enormous effort’ and, therefore, did not do very little activities as he had told the Tribunal. 

16. By letter dated 31 July 2018, the applicant submitted that when he said at the Tribunal hearing that he reduced his political activities he meant that he did this after the elections of late 2008. Prior to the elections of late 2008, under the caretaker government, political activities were restricted. As to the leaders he worked for, he said that the electoral districts of Z and Y [details deleted] and because so few Hindus worked for the BNP, he had more responsibility to campaign in the Hindu community.  The Tribunal has considered these submissions but they do not resolve the discrepancy in question.  At the Tribunal hearing the applicant conveyed the clear impression that in the elections of late 2008 he undertook very little activities.  However, in his written statement, he conveyed the impression that he undertook a great deal of political activities.  While the applicant claims that the electoral districts for the two BNP leaders [details deleted], the fact remains that in his written statement he refers to working for Z, but, at the Tribunal hearing, the applicant refers to working for two other individuals.  The applicant’s evidence about political activities is inconsistent and he has not provided a satisfactory explanation for that.

    Evidence about harm in Bangladesh

17. The Tribunal asked the applicant what difficulty or trouble the Awami League caused him before he fled from Bangladesh in April 2009.  In response, the applicant said that the Awami League told him not to do activities for the BNP.  He then said that he did not do political activities.  He then mentioned the kidnapping of his son and he said that that was the biggest problem.  The Tribunal asked the applicant what harm he suffered at the hands of the Awami League because of his activities in the elections of 2008.  In response, the applicant said that his participation was ‘little’.  When asked whether therefore he did not encounter any harm from the Awami League, the applicant said that was correct. He said that he was frightened at the time so he did not do much political activity.

18. The Tribunal asked the applicant whether he was ever attacked in this 18 month period between closing his business in late 2007 and leaving Bangladesh in April 2009.  In response, the applicant said that he was not assaulted. On a few occasions people would approach him, show him a pistol and say that if he reopened his business he would be harmed.  He said that this took place when he was walking home after being in the city collecting debts related to his business.  These incidents were related to the Muslim small businessmen who could not compete with him and, as stated above, forced him to close his business.

19. The Tribunal asked the applicant whether the police ever went to his home before or after he left Bangladesh in April 2009.  In response, the applicant said that the police did not go to his home as they could always find him in the market where he was operating his business.  He then said that sometimes police arrested him and people attacked him for which he sustained [an] injury.  He then said that the police arrested him in 1998 in relation to political activities and that was the only time that he was ever arrested in Bangladesh. He said that the attack in which he sustained [an] injury took place in 1998 when he was involved in a BNP protest.

20. The Tribunal asked the applicant whether in this 18 month period between closing his business and leaving Bangladesh anybody went to his home to harm him.  In response, the applicant said that nobody did that. During the day, he was mostly out and he only returned home at night.  Further in the hearing, the Tribunal asked the applicant whether anybody went to his home for him after he left Bangladesh in April 2009.  In response, the applicant first said that in March 2013 the Awami League set fire to a Hindu temple to which he had donated money and for which he sat on a committee.  He thought that it may have been because of his membership of the committee that the Awami League attacked the temple.

21. The applicant then more broadly claimed that his troubles in Bangladesh caused mental stress to family members causing his wife, mother and a brother to be ill and actually causing the death of another brother.  He said that no family member was actually harmed by anybody (from the Awami League or the small business owners).  The Tribunal asked the applicant what harm was caused to his family by the Awami League after he fled from Bangladesh.  In response, the applicant said that they did not harm his family but on occasions they would go to the family home and ask if the applicant had returned.  Finally, the Tribunal asked the applicant whether a false case had ever been taken out against him in Bangladesh.  In response, the applicant said that never happened. 

22. By letter dated 18 June 2018, pursuant to s.424A of the Act, the Tribunal put to the applicant that his evidence to the Tribunal on these issues appeared to be inconsistent with his evidence on these matters at earlier stages of the determination of his protection claims.  In this respect, in his written statement, the applicant said that following his work for the BNP in the elections of December 2008, people from the Awami League attacked and ransacked his home beating his [brother] and insulting members of the family.  As stated above, to this Tribunal, the applicant said that in the 18 month period between closing his business and leaving Bangladesh in April 2009 nobody came to his home to harm him.

23. In his written statement, the applicant also said that after this attack on his house following the elections of December 2008, a false case was filed against him by local Awami League activists and the police visited his home.  To the first Tribunal, the applicant also said that a false case was filed against him following the elections of 2008 and a police officer informed him of that.[6]  As stated above, to this Tribunal, the applicant said that that no false case was taken out against him and the police did not go to his home before or after he left Bangladesh. 

    [6] See RRT Case Number 0907932 (5 February 2010) at [90] – [93], [200].

24. When interviewed by the delegate in relation to this current protection visa application, the applicant said that after he left Bangladesh, Awami League people were going to his family home looking for him posing sufficient threat to them that they would leave the house and stay elsewhere for a few days before returning there to live.  As stated above, to this Tribunal, when asked what harm had been caused to his family by the Awami League since he left Bangladesh, the applicant said that no harm had been done to them.  He said that on occasions people came to the family home asking about him but his family were not harmed.  He made no claim that these visits were so distressing that his family members had to vacate the house at any time.

25. By letter dated 31 July 2018 the applicant submitted that it was correct, as he had claimed in his written statement, that cases were filed against him and police did go to his home to arrest him. He said that he could obtain documents from Bangladesh police to prove that. He submitted that, at the Tribunal hearing, he thought the Tribunal was asking whether any recent case or any recent visit had occurred. He said it was correct for him to tell the Tribunal that no recent case or recent police visit had occurred. The Tribunal rejects the applicant’s submissions as he was asked clearly whether there was a false case against him and he was questioned closely about what harm and police visits to his home occurred before and after he left Bangladesh.  If the applicant was relating a truthful account, he would have said at the Tribunal hearing that there was a false case against him and police had gone to his home to arrest him as he now claims.  He was given ample opportunity to give that evidence at the Tribunal hearing and he did not do so.  Otherwise, the applicant, in these submissions of 31 July 2018, has provided no explanation for the inconsistency in his evidence about harm from the Awami League and the police.

    Evidence about hiding before leaving Bangladesh

1. To the Tribunal, the applicant said that in the period of approximately 18 months between closing his business in late 2007 and leaving Bangladesh in April 2009, he lived at his home.  During the day, he took his son for medical treatment and would go into the city of Dhaka to see business debtors and recover money owing from them.  In his evidence, the applicant’s son gave a similar account of his father’s movements in the period of a few months before they left Bangladesh.  He said that his father would go to other places for the ‘business’ but the applicant’s son could not say where. For that reason, sometimes he would stay outside for the business and at other times his father would stay at home.  Neither witness made any claim that the applicant had gone into hiding in this period from late 2007 until April 2009 when they both left Bangladesh.

2. By letter dated 18June 2018, pursuant to s.424A of the Act, the Tribunal put to the applicant that, in contrast to this evidence, when he appeared before the first Tribunal, he said that following the elections in 2008 until leaving Bangladesh, he fled to go and hide in another city away from his home and would visit his mother at night.[7]   In his submissions of 31July 2018, the applicant did not respond to this discrepancy.  Accordingly, the applicant’s evidence on this issue is inconsistent and he has not provided a satisfactory explanation.

   Evidence about kidnapping

   [7] See RRT Case Number 0907932 (5 February 2010) at [86], [90] and [193].

3. To the Tribunal, the applicant said that in approximately 1997 or 1998 his son was kidnapped by people related to the Awami League.  He was in the city of Dhaka working in his business when he received a telephone call from a Muslim man named W who told him that his son had been kidnapped while on his way [home]. On being given this news, the applicant returned to his home. That evening, W told him that the kidnappers demanded the sum of [number] lakhs taka from the applicant for the release of his son.  He said that the kidnappers had sent that news to W.  The kidnappers also passed on to W that the applicant should not approach the police and they would not compromise on the ransom amount. 

4. When asked how the situation ended, the applicant said that through W they agreed on the amount of [number] lakhs taka and his son was left outside the family home. The Tribunal asked the applicant whether he himself spoke directly to the kidnappers at any time. In response, the applicant said that he did not.  Contact was made through the intermediary W.  Other people told him the names of some of the kidnappers.  The Tribunal asked the applicant whether, apart from the payment of ransom, his kidnappers demanded that he do anything else.  In response, the applicant said that the only demand they made was the payment of money.

5. By letter dated 18June 2018, pursuant to s.424A of the Act, the Tribunal put to the applicant that in his written statement, he said that his son was kidnapped by a number of people while he was not at his home.  He said that when he found out about this and returned to his home one of the kidnappers ‘V’ telephoned him and said not to go to the police, to pay a ransom and, in addition, ‘to become a Muslim and to leave the country’.  As stated above, to the Tribunal the applicant said that at no stage did he speak to any of the kidnappers.  In addition, when asked by this Tribunal what demands the kidnappers made of him he said that they demanded payment of a ransom, nothing else. 

6. In submissions of 31July 2018, the applicant submitted that at the Tribunal hearing he was asked what demand the kidnappers made and he said that, in Bangladesh, demand usually refers to money and that was why he only mentioned the demand for payment of a ransom and not the additional demand that he become a Muslim.  He submitted that when this kidnapping took place very few people owned mobile telephones and the person V contacted the applicant through the mobile telephone of his friend W.  The Tribunal rejects these submissions and finds that, if the applicant was relating a truthful account, when questioned as to what his son’s kidnappers asked him to do, he would have said that they asked for payment of a ransom and also that the applicant change his religion. Further, if the applicant was relating a truthful account, he would have given consistent evidence about to whom he spoke in relation to the kidnapping, either his friend (who was in contact with the kidnappers) or, as he claimed in his written statement, directly to the kidnappers themselves.  The applicant’s evidence is inconsistent and he has failed to give a satisfactory explanation for that.

   Conclusions on credibility

7. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.  The Tribunal therefore disbelieves the applicant’s claims that he supported and undertook activities for the BNP; that the Awami League ever threatened or harmed the applicant or any member of his family including attacking his home; that his son was kidnapped; that Muslims who owned small businesses threatened or harmed the applicant; that a false case or cases have been taken out against the applicant and that the police have pursued the applicant or hold any adverse interest in him.[8]

   [8] Because the applicant is not a witness of truth, the Tribunal rejects a claim he made in his written statement that his father was a Hindu leader who agitated to retrieve property that the applicant claims was taken from his family by the government and that this made the family a target of the Awami League.

8. In reaching this finding, the Tribunal took into consideration the evidence given by the applicant’s son at the Tribunal hearing.  In this respect, the applicant’s son gave an account of being kidnapped when he was [age] years old, losing consciousness soon after he was abducted and not regaining consciousness until he was in a hospital during which time he discovered that he [had a medical procedure completed].  While this evidence purports to corroborate the applicant’s claims about the kidnapping of his son, it does not overcome the inconsistency in the applicant’s evidence about the kidnapping as set out above nor the other areas of inconsistency in the applicant’s evidence.  These areas of inconsistency significantly discredit the applicant as a witness and accordingly the Tribunal finds that not only is the applicant’s evidence false but so is that of his son.

9. The applicant’s son made submissions dated 13July 2018 submitting that the inconsistencies discussed above are minor.  He also set out materials from various sources about the assessment of credibility and various possible causes of inconsistency in the evidence of applicants for protection.  The applicant’s son also made submissions about what he considered the inappropriate way he was questioned by the first Tribunal.  In his submissions of 31July 2018, the applicant said that he was giving evidence about events that occurred many years ago and because he was in distress he may have misunderstood some questions he was asked by the Tribunal.  The Tribunal also considered submissions that the applicant made to the Minister to the effect that he suffers stress and anxiety making him forgetful and disturbed.[9]

   [9] See folio 172 of Department file  [information deleted].

10. The Tribunal has made allowance for the fact that the applicant was giving evidence about events that did not occur recently and that the process of applying for protection and giving evidence could be distressing.  The Tribunal has also considered the submissions of the applicant’s son with respect to the assessment of credibility and how he felt he was treated by the first Tribunal.  However, the Tribunal finds that the areas of inconsistency in the applicant’s account relate to very fundamental aspects of his protection claims and about which he can reasonably be expected to give a consistent account.  The Tribunal is satisfied that the cause of the inconsistency in his evidence is that his account is false. 

11. In reaching this finding the Tribunal has also considered the report of a psychologist dated [June] 2018 with respect to the applicant’s son assessing him as suffering a Major Depressive Disorder and Post Traumatic Stress Disorder.  The psychologist records the applicant’s son stating that he had been kidnapped and suffering harm for which he still needs medical treatment.  The psychologist is not in a position to assess the credibility of those claims and, for the reasons given above, the Tribunal does not believe the applicant’s son was kidnapped in Bangladesh.  The Tribunal finds that there is no credible evidence about the cause of the applicant’s son’s mental state except that it appears to be due to a particular medical condition from which he suffers (with consequent pain) and for which he has been receiving treatment in Australia.[10] 

    [10] See folios 27-29; 31-34; 36-43; 56-57; 67-70; 162 – 179 of the Tribunal file.  To the Minister, the applicant also submitted medical records indicating that his son received treatment for his particular condition in Bangladesh as well as Australia -  see folios 138-164 of Department file [information deleted].

12. Some of the medical evidence before the Tribunal about the applicant’s son records him telling health professionals that he [underwent a forced medical procedure] when kidnapped.  While these professionals record that it is this injury which is causing the applicant pain, both physically and emotionally, these professionals, like the psychologist, are not in a position to assess the credibility of the applicant’s son’s claims.  For the reasons given above, the Tribunal does not believe those claims.  The Tribunal accepts that the applicant’s son has this particular injury and medical conditions for which he has been receiving treatment, but, the Tribunal has no credible evidence as to the cause of this injury and these conditions.

13. At the Tribunal hearing, the applicant said that if he was not in genuine fear in Bangladesh he would never have come to Australia and because of his difficulties in Bangladesh, his brother had died, his wife was sad, another brother was not very well and his son was not well and that was caused by his kidnapping.  The Tribunal has no credible evidence before it as to why the applicant left Bangladesh and came to Australia.  The Tribunal has no credible evidence about these various family members of the applicant.  It has no credible evidence that any difficulties they have or have had in Bangladesh are due to the applicant.

14. To the Tribunal, the applicant said that in the time he has been in Australia he has undertaken activities for the BNP in this country.  He said that these activities comprised attending meetings and participating in demonstrations. He thought that he had attended between ten to 15 meetings and said that he had been in many demonstrations for the party.  To support this claim, the applicant submitted a letter [dated] August 2018 from a [member] of the BNP in Australia alleging that the applicant participated in anti-government demonstrations in Bangladesh for which he suffered severe violent acts from ruling party activists.  The Tribunal understands these claims to be either invented by the writer of the letter or are claims made by the applicant to that person.  For the reasons given above, the Tribunal does not believe the applicant undertook activities for the BNP in Bangladesh as he has claimed.

15. The author of this letter also claims that in Australia the applicant has been involved with community activities.[11]  Because the applicant is not a witness of truth, the Tribunal has no credible evidence before it about what activities the applicant has undertaken in Australia.  The fact he may have undertaken activities for the party here does not persuade the Tribunal that he did this when he lived in Bangladesh.  Because he is not a witness of truth, the fact he may have undertaken activities for the party in Australia does not persuade the Tribunal that the applicant will (or will want to) undertake activities on return to Bangladesh.  There is no credible evidence before the Tribunal as to why the applicant would undertake activities for the party in Australia. There is also no credible evidence that Bangladeshi authorities hold any adverse interest in the applicant as a result of any activities he may have undertaken for the party in Australia.

    [11] The Tribunal also considered a letter dated [May] 2011 from an office holder of the BNP in Australia that the applicant submitted to the Minister – folio 137 of Department file [information deleted].

16. In its Country Information Report Bangladesh DFAT assesses the treatment of Hindus in that country.[12]  DFAT states that there are between 12 to 15 million Hindus in Bangladesh and there are no legal restrictions preventing them from practising their religion and participating in society.[13] DFAT mentions incidences of harm against Hindus, their homes, properties and temples.[14]  In this respect, DFAT states that in the lead up to and following the elections in 2014 activists from an Islamist party carried out attacks against the Hindu community killing more than two dozen people, destroying homes and businesses and displacing a large number of people.[15] DFAT states that this violence mostly occurred in the north-west of the country.[16] 

    [12] DFAT Country Information Report Bangladesh 2 February 2018.

    [13] DFAT Country Information Report Bangladesh at 3.30 and 3.32.

    [14] DFAT Country Information Report Bangladesh at 3.34 – 3.36.

    [15] DFAT Country Information Report Bangladesh at 3.34.

    [16] DFAT Country Information Report Bangladesh at 3.34.

17. DFAT refers to small-scale localised attacks by Islamist militant groups against minority religious and social groups across Bangladesh between January 2013 and mid 2016 in which several Hindus were killed or seriously injured and for which the government conducted extensive counterterrorism operations reducing the capability of militant groups.[17]  DFAT refers to an attack on a Hindu village in east central Bangladesh by Muslims in which Hindu temples and homes were damaged, smaller attacks against Hindus in the same area also occurring and all related to appropriating Hindu land.[18]

    [17] DFAT Country Information Report Bangladesh at 3.35.

    [18] DFAT Country Information Report Bangladesh at 3.36.

18. DFAT assesses the risk of Hindus suffering harm in the following terms:

    “ DFAT assesses that Hindus with historical land claims face a moderate risk of official discrimination because they are unlikely to be able to reclaim their property or obtain compensation despite a legal pathway enabling them to do so. Hindus face a moderate risk of societal discrimination in the form of physical violence, particularly around periods of heightened political tensions such as national elections, and may face a risk of sporadic attacks from Islamist militants.”[19]

    [19] DFAT Country Information Report Bangladesh at 3.37

19. While DFAT refers to the risk of violence as moderate, the Tribunal needs to consider what is an isolated number of incidents of harm against Hindu’s in the context of the total Hindu population of between 12 to 15 million people.  Further, the Tribunal must also consider there is no credible evidence the applicant suffered harm in Bangladesh because he is Hindu.  At the hearing, the Tribunal put to the applicant that according to country information Hindu’s could practice their religion.  Applied to the applicant, this means that he can attend a Hindu temple and be involved in Hindu community activities.  Country information indicated that on occasions Hindu’s and their temples have been attacked but when those incidents were considered in the context of the size of the Hindu population, the risk of the applicant suffering significant harm because of his religion was remote.  In response, the applicant said that harm suffered by Hindu’s in Bangladesh was underreported.  The Tribunal rejects that claim because human rights practices in Bangladesh are the subject of wide reporting and the DFAT report on Bangladesh reflects this.

20. In his protection visa application form the applicant claimed that on return to Bangladesh Muslims would think that he had money because he had been abroad.  The Tribunal understood this claim to be linked to his claims about harm from Muslim small-business owners when he lived in Bangladesh.  For the reasons given above, the Tribunal finds that those claims are false.  Based on the country information discussed above, the risk of the applicant suffering significant harm because he is Hindu (including as someone returning to Bangladesh from another country) is remote.

21. In a statement dated 8August 2018, to the Tribunal and also at his interview with the delegate, the applicant made claims about Hindu’s, including those who owned small businesses, being harmed, threatened and having property taken from them.  He mentioned the daughter of one individual being kidnapped and raped and this person being unable to take legal action in fear of repercussions from those responsible.  Because the applicant is not a witness of truth, it disbelieves and rejects these claims.  The Tribunal prefers the country information discussed above as conveying the most accurate assessment of the risk of the applicant suffering significant harm because he is Hindu.

22. In his statement dated 8August 2018, the applicant said that his brother died [in] January 2016 because of the government’s attitude towards Hindu’s. He said his brother had been [suffering] from [a chronic condition].  He submitted his mother has been suffering from [a medical condition] for [number of] years.  Because the applicant is not a witness of truth, it finds it has no credible evidence about these particular family members.  It disbelieves his claims that family members have suffered in any way because of their religion or because of him.

23. With his statement of 8 August 2018, the applicant enclosed country information about human rights in Bangladesh and also about Hindu’s there.  Two of these sources were issued in 2005 and 2006 respectively and are well out of date to be of use in assessing the risk of the applicant suffering significant harm because he is Hindu.  The applicant also submitted what appears to be the United States Department of State Report on Human Rights in Bangladesh for 2017.  While this report, like the report from DFAT, refers to human rights abuses in Bangladesh, it does not persuade the Tribunal to depart from the inferences it draws from country information discussed above that the risk of the applicant suffering significant harm in Bangladesh because he is Hindu is remote.

24. The applicant draws attention to statements in this report about minority communities involved in land ownership disputes but there is no credible evidence that the applicant himself was involved in any such dispute. There is a section of the report that discusses victims of rape not reporting those crimes but that does not demonstrate that harm to Hindu’s is underreported in Bangladesh. The report refers to an attack on Hindu homes but that falls well short of demonstrating a real risk of significant harm to the applicant.  The applicant earlier submitted to the Tribunal materials that relate to harm done to members of opposition parties in Bangladesh.[20]  This material does not assist the applicant because the Tribunal does not believe that the applicant undertook political activities in Bangladesh.

    [20] See folios 87 – 110 of the Tribunal file.

25. To the Minister, the applicant submitted letters from members of the Hindu community in Australia who claimed that in Bangladesh the applicant had undertaken activities for the Hindu community and suffered harm as a result.[21] None of the authors of these letters claim to have witnessed the applicant suffering harm in Bangladesh.  Presumably claims that he suffered harm there, as referred to in these letters, are claims the applicant has made to the authors of these letters.  For the reasons given above, there is no credible evidence the applicant suffered harm in Bangladesh or his son.

    [21] See folios 167 – 170 of the Department file [information deleted].

1. Available country information indicates a high prevalence of document fraud in Bangladesh.[22] With respect to this current protection visa application the applicant submitted documents to the Department to corroborate his protection claims.  Those documents related to records purportedly issued by Bangladesh police in relation to an attack on a Hindu temple in March 2013.  The applicant claimed that he belonged to a committee responsible for this temple and donated money to it.  The Tribunal put to the applicant that there was a wide prevalence of false documents in Bangladesh which might suggest that the documents he had submitted were also false.

   [22] DFAT Country Information Report Bangladesh at 5.24 – 5.27; Immigration and Refugee Board of Canada, Research Directorate, BGD105263.E Bangladesh: Reports of Fraudulent Documents (2011 – 2015) 20 August 2015.

2. In response, the applicant said he had documents he wanted to submit.  The Tribunal told the applicant that he could submit documents with his response to the letter that the Tribunal would be sending him pursuant to s.424A.  The Tribunal has discussed above all of the documents it received from the applicant and his son in response to that letter.  In view of the country information about the prevalence of false documents in Bangladesh and in view of its finding that the applicant is not a witness of truth, the Tribunal does not give evidentiary weight to these documents that he has submitted about an attack on a Hindu temple he claims he was associated with in Bangladesh.

3. In his submissions of 31July 2018, the applicant offered to obtain documents from Bangladesh police to prove that there were false cases against him in Bangladesh.  As discussed above, the applicant’s evidence about the existence of false cases against him was inconsistent and inconceivably so.  In view of the country information about the wide prevalence of false documents in Bangladesh, the Tribunal saw no purpose in receiving further documents purportedly from Bangladesh police about false cases against him.

4. At the conclusion of the Tribunal hearing, the applicant, at the end of his evidence, repeated his fear of harm from the Awami League and the small business owners who he claims threatened him in Bangladesh.  For the reasons given above, the Tribunal disbelieves these claims.  When asked if there were any other grounds on which he was afraid to return to Bangladesh, the applicant said that the quality of medical treatment his son receives in Australia was superior to that he would receive in Bangladesh. The Tribunal put to the applicant that he needed to demonstrate a real risk of suffering significant harm and inferior medical treatment for the son’s condition was not significant harm within the meaning of the Act, in particular, intentionally inflicted significant harm. 

5. In response, the applicant said that his son’s problem was caused by the kidnapping. For the reasons given above, the Tribunal disbelieves that claim.  The Tribunal acknowledges that the applicant’s son will require medical attention and possibly also psychological assistance for the stress that his medical condition is causing him.  No claim was made (nor does any claim arise on the evidence before the Tribunal) that the applicant’s son will be denied health care for any reason including for being Hindu.  The fact that facilities for the provision of this treatment may be inferior to those available in Australia does not equate with significant harm as that term is defined in the Act.  For all of the reasons given above, the Tribunal finds that there is not a real risk that the applicants will suffer significant harm in Bangladesh.  Accordingly, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to the receiving country, Bangladesh, there is a real risk that they will suffer significant harm.[23]

   [23] On the Department file relating to this current protection visa application, the Department issued a certificate related to restricting disclosure of folios 40, 44 – 45 of that file.  Those documents are nothing more than internal Department checklists and have no relevance or bearing whatsoever on the grounds on which this review has been determined. Accordingly there was no need to disclose those documents to the applicant.

   CONCLUSIONS

6. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. The applicants do not satisfy the criterion set out in s.36(2)(aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

   DECISION

7. The Tribunal affirms the decision not to grant the applicants Protection visas.

   Paul Millar
   Member