1601593 (Refugee)

1601593 (Refugee) [2018] AATA 4788 (3 October 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1601593
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Tania Flood
DATE:3 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 October 2018 at 2:07pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh National Party – particular social group – Bangladesh diaspora activities against the Awami League – politicised criminal justice system – political violence – fear of killing – withholding state protection – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 January 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Bangladesh, applied for the visa on 16 June 2015. The delegate refused to grant the visa on the basis that there is not a real chance or a real risk the applicant will face serious or significant harm if he returns to Bangladesh.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Material under a public interest non-disclosure certificate
The Department file contains a public interest non-disclosure certificate in respect of s.438(1)(a) related documents. The Tribunal considers that the certificate is not a valid certificate as the material relates solely to internal deliberations of the Department. No reason has been provided about why the disclosure of the documents would be contrary to the public interest. Furthermore, the Tribunal considers the material to not be relevant to its decision as it relates to the identification of the applicant which is not in dispute. This was discussed with the applicant and his representative at hearing and no submissions were made in respect of the validity of the certificate.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Bangladesh for reason of his race, religion, nationality, membership of a particular social group or political opinion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
In a statement attached to his application for a Protection visa the applicant claims:
He joined the Bangladesh Nationalist Party (BNP) in [year] and was [Position 1] of the BNP [Location 1] Union in Comilla, Bangladesh.
Since the 2008 elections which was won by the Awami League (AL) the BNP leadership has faced persecution. Most of its leaders are in hiding or have gone missing. In his Union they lost followers and many, including him, have received death threats. His local BNP President is in hiding and advised him to abscond.
Since [January] 2015, after coming to power again, AL activists have tried to find him in the local area and they have filed two cases against him.
On [a date in] January 2015 a brutal fight occurred between AL and BNP activists at the [Location 1]. AL activists looted the residents of BNP leaders. His own residence was looted and his family fled to [Location 1].
On [two dates in] May 2015 he received unanimous phone calls on his mobile threatening him and his family. He reported those events to the nearest police station.
From [year] until October 2013 he was employed as an [occupation 1] in [Agency 1]. When the AL formed government again without a proper election in January 2014 he could not continue his employment because he was threatened by AL activists. His job was given to AL activists. Senior BNP leaders asked him to go underground and he moved away from his house for one and a half years in the hope the political situation would change. There was no change and he decided to move to Australia.
Now the AL has formed government for a consecutive time and he was charged with cases. A warrant has been issued by the Bangladesh police against him for vandalism. He does not want to return to Bangladesh because his life is in danger.
On 15 August 2018 the applicant’s representative provided a written submission to the Tribunal in which it is submitted the applicant has a well-founded fear of persecution for reason of his political opinion (holding and supporting the political ideologies of the BNP and holding a political opinion against the AL) and membership of a particular social group (Bangladesh diaspora involved in activities against the AL). The submission contains numerous links to country information reports on human rights violations against BNP members and activists in Bangladesh. Extracts from certain of these reports are summarised. It is submitted that the criminal justice system in Bangladesh is highly politicised and that widespread corruption prevails. It is further submitted that high levels of political violence continue to be reported and the ruling party represses the activities of its political opponents often using violence and torture. It is submitted that the applicant has a political profile, particularly in Australia, and that this profile will attract his persecutors to target and harm him so as to stop his political activities. It is also submitted that AL activists continue to attack and harm not only the leaders of the opposition political parties but also the activists and ordinary people.
On 20 August 2018 the applicant provided a further statement which is summarised as follows:
He joined Bangladesh Jatiotabadi Chatra Dal in Chittagong when he was studying at [a named] College in [year]. During his student life he was involved in political activities including participating in BNP’s political processions and meetings.
In September 2002 when he commenced work in [Agency 1] he left student politics and joined the [Location 1] Union Branch of the BNP. From 2005 to November 2014 he served as the [Position 1].
Because he was close to [Mr A], the local MP who appointed him to his position with [Agency 1], he was viewed as a person with significant political connections with the BNP. Though he had an active political profile he maintained cordial relationships with other political party members who were co-employees in the same organisation.
The local AL cadres developed enmity toward him. On [a day in] January 2010 at [Location 2], AL cadres attacked him and he sustained an injury to his right foot.
On [a date in] February 2012 the AL leaders, [Mr B], [Mr C], [Mr D] and others came to the BNP office of [Location 1] Union and attacked with sharpeners and sticks. The President, the Vice-President and he sustained injury. He was hit on the face and fell to the ground. He approached [a named doctor] who treated him and then sent him to Dhaka for further treatment.
On [a date in] January 2014 the AL leader [Mr C] filed a politically motivated false case against him and his brothers. [In] February 2014 another AL leader, [Mr B] filed another false case against him and his brothers.
He made two general diaries in [Police Station 1] and [Police Station 2] in Dhaka for threats received.
[In] October 2013 his office transferred him to [a different office]. Despite the transfer he continued to perform his work but the AL people continued to threaten him.
Once his motor cycle was stopped and AL cadres threatened to kill him. He then stopped going to work to save his life. With the help of a friend he got a job as [a manager] at [Business 1], [at a location in] Dhaka in July 2014. During that time he got an opportunity to attend a conference in Australia and applied for a visa and arrived [in] May 2015. He then decided to apply for a Protection visa.
Since being in Australia he became involved with the BNP [branch in Australia] and continues to be.
At present, his children, his wife and brothers are not safe in Bangladesh. They have advised him about ongoing threats from the AL. His daughter is unable to attend school normally due to fear of abduction. The AL has threatened to destroy the house and kill them.
On [a day in] May 2018 at his mother-in-law’s house, some people from the government asked his son to inform them about his father’s situation. When his son told them he had no idea about it they attacked him with their hands, sticks and rods. He sustained an injury to his [body]. Initially they prevented him from being taken to the hospital but when the ambulance arrived they let him go.
Due to threats, his brothers and family are unable to stay at home. This is due to his involvement with the BNP and his financial contribution to the BNP.
If he returns to Bangladesh he will face harm due to his support and political affiliation with the BNP; his financial contribution to the BNP; his activities in Australia against the AL; his political opinion against the AL.
Other evidence before the Tribunal includes:
Letter dated [in] June 2015 confirming the applicant’s employment as an [occupation 1] in the [Agency 1] from [September] 2002 to [October] 2013.
Letter from the BNP President of [a named district] Unit advising that the applicant was under the responsibility of [Position 1] of [Location 1] Union for nine years before going underground.
Copy of a General Diary made at [Police Station 1] [in] May 2015 in relation to an incident which occurred [earlier in] May 2015.
Copy of a General Diary made at [Police Station 2] [in] May 2015 in relation to an incident which occurred [in] May 2015
Copy of a complaint made against the applicant at [Police Station 1], Comilla by [Mr C].
Copy of a complaint made against the applicant at [Police Station 1], Comilla by [Mr B].
Letter from the BNP [branch in Australia] dated [in] October 2015.
Copy of a medical certificate dated [in] May 2015.
Copies of news reports in the [source name] (paper and electronic versions).
Copy of a photograph of an unidentified injured person.
Letter from the BNP [branch in Australia] dated [in] June 2018.
Amended statement of claims with corrected dates.
TRIBUNAL HEARING
At the Tribunal hearing the applicant testified that he lived at his place of birth in [Location 1], in Comilla District until he entered year [number] at school. He said he then completed his secondary studies in [a different town] and Chittagong. After completing his [studies] he returned to [Location 1]. He then did his [tertiary] studies in Comilla District. In 2002 he moved to an address in Dhaka – [specified address] where he remained living until he departed Bangladesh for Australia. However, on weekends he would still go back to [Location 1].
The applicant testified that he worked for [Agency 1] as an [occupation 1] from 2002 until [October] 2013. He said he left that job because he was appointed during the rule of the BNP and the AL made trouble for those employees who started under the BNP. He said he was offered the job by [Mr A], a BNP minister, because he was a BNP cadre. He confirmed that [Mr A] is no longer affiliated with the BNP. After he left [Agency 1] he said he found work at [Business 1] in July 2014.
The applicant testified that his mother still lives in [Location 1]. He said his [specified family members] are married and live with their in-laws. [Other family members] are living in different places in Bangladesh because they cannot live at home permanently due to their BNP involvement.
The Tribunal asked the applicant why he favours the BNP over the AL and he said it is because the BNP is a democratic party which gives equal rights to all. He said the general masses can present their views and they will be considered. He said the BNP helps people in a better manner than the AL.
In a bid to ascertain whether the applicant has a deeper understanding of the policies of the BNP he was asked to elaborate on the main ideological differences between the two parties. The applicant’s response was to recite an array of generic political principles – independence, equality, safety for the people, defence of the country, democracy, nationalistic values, social and political freedom. When asked to explain how these principles differ to the AL principles he said he has no idea about AL ideology. The applicant was asked again if he could point to any key differences between the two parties and he said there definitely are some differences but he likes the BNP.
The applicant gave a generally consistent account of the timeline of his involvement with the BNP in Bangladesh. He said he joined up when he was in college and when he finished his student life he left the student movement and became more involved in local area politics. He said that from 2005-2014 he was the [Position 1] of the BNP in his local area.
The Tribunal attempted to ascertain whether the applicant is a formal member of the BNP. At first he said that he had no signed membership of the party. He then changed his evidence and said that he was a formal member. The Tribunal asked him how he obtained his membership of the BNP and he said his father was involved in the BNP as a leader and when he passed away the party handed things over to him. He said he filled in a form and was given a receipt. He said he had a membership card but did not bring it with him. The applicant confirmed that his father [and specified family members] were involved with the BNP.
As to his role as [Position 1] the applicant testified that he was involved with the President and the Vice-President. They discussed what actions to do to keep the party intact in a better manner. The applicant was asked to name the other executive positions in his local area. He said there is a President, Secretary, Joint Secretary, Treasurer and a few other positions which he could not name. The applicant was asked how his role differed to that of the Joint Secretary. He said they used to do more or less the same work and helped each other. As to his specific functions he said that he helped the leaders to plan the day to day events as well as keeping an eye on the AL.
The applicant was asked if he is familiar with the BNP’s nineteen point program. He said he is and commenced to recite the following points – confirm political, social and economic safety of the general masses; have faith in God or Allah; keep the country safe from outside attacks; provide medical necessities and food and clothing; provide recreation. The Tribunal put it to the applicant that he appeared to be struggling to recite points he had attempted to commit to memory. The applicant responded that he is not very healthy or happy given his situation. He said he is worried about his wife, his children and his brothers and this is disturbing him.
The applicant was able to name the current Member of Parliament in [Location 1] and the former BNP candidate which he did correctly. He was aware the former BNP candidate [ceased his appointment recently] and named his replacement.
The Tribunal asked the applicant about his BNP involvement in Australia. He said he became involved with the BNP in Australia almost immediately upon arrival. He said that he has held the position of [Position 2] for the past seven to eight months. He said his role is to look after [cultural] activities of Bengali [children]. As to what other political activities he has engaged in he said that he goes to meetings every three or four months. At those meetings he said they discuss issues which are going on in Bangladesh with the AL. He said the BNP Australia sends money to support the BNP in Bangladesh. He said that he personally has donated approximately [amount] but he has no evidence to support this. He said he has also attended one protest rally in Canberra in front of the Bangladesh embassy. He confirmed his involvement in BNP politics in Australia has not been as high level as it was in Bangladesh.
The Tribunal asked the applicant about the past harm he claims occurred in Bangladesh. He said that when the AL came to power he started having problems at work. He said that on [a day in] January 2010 at 1pm he went to have lunch at [Location 2]. On the way back three AL leaders from his staff and a few others stopped him. They told him he shouldn’t continue going to the office. He said there was an argument and he was physically assaulted. He said he was able to run away but in the process he fell onto a piece of steel and injured his right leg. He said that some local people took him to a pharmacy. When asked if he reported this incident to the police he said that while the attack was taking place some police saw it but did nothing to stop it. He said that he didn’t go to the police station because they would not take a report from him. The applicant said he managed to survive at his workplace by exchanging money but by 2013 the situation had become unbearable.

On another occasion the applicant said that he was at a meeting [in] February 2012 in his local area office when AL members attacked them. He said they were bashed with sticks and other implements, kicked and punched. He said that his teeth were damaged in the attack and he had to seek treatment for that. When asked if they reported this incident to the police he said they tried but the police wouldn’t take their report. He said that AL members instructed the police not to take reports from BNP people.
The applicant testified that the AL registered two false cases against him and his brothers in January and February 2014. He said the AL claimed they attacked the local AL office and looted cash and gold from their lockers. When asked what happened after the false cases were brought he said that the police tried to find him and his brothers. Noting that the false cases were brought in 2014 and he only departed Bangladesh in 2015 the Tribunal asked how he managed to avoid arrest. He said he was not visiting the local area at all and his brothers were in hiding. The Tribunal indicated that it appears then that he was able to ensure his safety by remaining in Dhaka. He responded that he wasn’t moving around much but the Tribunal noted his earlier evidence that he continued to work up until he departed Bangladesh. He responded that he worked in an office.
The Tribunal asked the applicant if an arrest warrant has been issued for him and he said it has. When asked if he has a copy of the warrant he said he never collected it. When asked how he knows there is an arrest warrant he said the police visited his home and asked about him and his brothers. He confirmed that the police never gave the warrant to his mother. He said they told her to pay [amount] rupees or else they would pursue him and his brothers.
The applicant further testified that the AL looted his home but he was not there at the time because he was moving between Dhaka and his home. He said his brothers were there at the time and were physically assaulted. The applicant said that his father was a leader in the BNP; that he also became a BNP leader and it was known that he was working and had some family businesses. He said their income was good and he was donating money to the BNP to keep it alive. He said that if the AL could finish him there would have been nobody else left to carry on this support. When asked if it was only his home that was looted he said the President and other leaders’ homes were looted too but he was the main target because of his financial position. The Tribunal put it to the applicant that his written claims indicate that it was a fight between the BNP and the AL at the [location] which prompted this incident. He then said this is correct but that the main reason was to lower the chances of the BNPs survival. Again he said he tried to report it but the AL instructed them not to help BNP people.
The applicant stated that he also received calls to his mobile threatening to kill him and his wife. He said he lodged general diary reports over this. When asked to provide details of these calls he said that he received one during the night of [the date in] May 2015 when he was going to meet local leaders. He said he doesn’t know how the callers knew he was going to the meeting. He said the caller asked him why he is still with the BNP and said he should stop his BNP involvement otherwise they will finish him and his family. He said he received further calls on [later dates in] May 2015. [Days later in] May he said he confided in a local AL leader and asked him to lodge his general diary with the police in [Police Station 1]. He said he paid the AL leader [amount] rupees to do it.
The Tribunal put it to the applicant that the above situation appears implausible given everything he has said about his interactions with the AL and the attitude of the police toward BNP supporters. He responded that it was a local area issue and he approached an AL leader at the Thana level. The Tribunal expressed doubt that the AL leader would do this for him and he said it was because he paid him to do it.
The Tribunal referred to the General Diary report and noted that only the call of [the date in] May 2015 is mentioned. He said that he didn’t mention all the calls because he couldn’t decide whether to include it all.
The applicant then said he received another call on [a later date in] May 2015 where he was asked why he came to Dhaka. He said he was given the impression that either he or his family could be badly hurt. He said this prompted him to lodge a second General Diary at [Police Station 2]. Again he said a bribed an AL person to do this for him.
When asked if anything happened in connection with the General Diary reports he said that he left Bangladesh before anything could happen. He said he was stopped at immigration when leaving the country but he bribed his way through.
The Tribunal asked the applicant how his family are currently coping in Bangladesh. He said that on [the date in] May 2018 AL people pulled his son aside and asked him about his father and how much money he was sending home. He said they asked for [amount] rupees and threatened to kidnap his son or kill him. The applicant said his son told them nothing about his whereabouts and no money was paid out. He said that the next day they pulled his son from his home and broke his arm. He said his daughter cannot go to school and his wife cannot move about freely. He said his brothers are not able to be out in public. When asked where his wife and children are now he said they are still with his in-laws but they cannot live openly.
The Tribunal asked the applicant about his overseas travel prior to coming to Australia. He said he travelled to [Country 1] and [Country 2] to visit some BNP leaders who were hiding in those countries. He said he loves to travel and so did some independent travel as well.
Before the hearing concluded the Tribunal put the following concerns to the applicant.
The Tribunal noted that his claimed attacks in 2010 and 2012 were not mentioned in his initial statement and that he has now introduced new claims in relation to the phone calls and bribes made to immigration officials. In response the applicant repeated that he received threatening phone calls on [the specified dates in] May 2015. He said he didn’t report that properly.
Secondly the Tribunal noted the applicant’s overseas travels. The Tribunal put it to the applicant that he suffered at least two physical attacks before his first trip to [Country 1] in 2012 and yet departed and voluntarily returned to Bangladesh several times in the course of 2013. The Tribunal noted that in 2013 he claimed his life was threatened when stopped on a motor cycle; that he then was forced underground in January 2014; had his house looted and a false case filed against him. The Tribunal put it to him that despite this he travelled to [Country 2] and voluntarily returned to Bangladesh. The Tribunal also noted that he then had a further false case brought against him and again made several trips to [Country 1] and [Country 2] in 2014 and 2015, always returning to Bangladesh. The Tribunal put it to the applicant that this pattern of behaviour seems to undermine his claims that he was physically assaulted, robbed, threatened and had false cases brought against him.
In response to the above the applicant stated that the situation then and now is completely different. He said his brothers have absconded and his children are at risk. The Tribunal stated that he nevertheless has claimed that he was suffering serious problems in Bangladesh and yet he continued to return there voluntarily. He replied that the situation in Bangladesh is getting worse and worse.
Thirdly, the Tribunal discussed with the applicant concerns which were previously raised by the Delegate regarding the news reports submitted into evidence. Specifically the Tribunal said it shared the view that a photograph of him appears to have been digitally adjusted as his head is disproportionate in size to the other people appearing alongside him. The applicant responded that the photograph was taken by the newspaper and he has no idea about that. The Tribunal also said that it has been unable to locate any other reference to this newspaper online or anywhere else. The applicant responded that it is a local area magazine.
Fifthly, referring to the medical certificate submitted as evidence of past physical harm the Tribunal noted that it is dated 2015 whereas the attack in which his teeth were injured occurred well before then. The applicant responded that he had a further dental appointment prior to leaving for Australia.
The Tribunal also discussed with the applicant country information which indicates that there is a significant prevalence of fraudulent documents in Bangladesh including passports, birth certificates, bank statements, taxation documents, business and school documents etc. The Tribunal stated that it is reported that if you ask for it in Bangladesh it can be produced (UK Home office January 2018; DFAT 2 February 2018). The applicant agreed this information is correct but insisted his documentation was genuine.
Noting the general diary reports and false case statements which have been provided by the applicant the Tribunal put it to the applicant that being just written statements as opposed to officially sanctioned court documents; they are not particularly strong pieces of evidence. The applicant responded that he has submitted the documents which are available. Furthermore, the Tribunal pointed out that the general diary entries, while being made in different locations, appear to have been lodged on the same day. The applicant responded that the documents could be cross-checked with the police station.
Before the hearing concluded the applicant stated that he is still interacting with the BNP in Australia and people from the AL who are living in [Australia] keep an eye on the community here and send information back to Bangladesh. He said that the AL is even more angry with him and aggressive towards him because of this. The Tribunal noted that there is no country information before it to support that this is occurring or that people are targeted on return to Bangladesh for this reason.
FINDINGS AND REASONS
Country of reference
At the Tribunal hearing the applicant produced his Bangladeshi passport which verifies his claimed identity and nationality. In the absence of any information to the contrary the Tribunal accepts the applicant is a citizen of Bangladesh and has assessed his claims against Bangladesh.
BNP
The Tribunal accepts that a person may develop a genuine political preference on the basis of family or community tradition without a strong understanding of political ideology. For this reason, the Tribunal is prepared to accept the applicant might prefer the BNP over the AL. That said, for the following reasons, the Tribunal does not accept the applicant was an active member of Jatiotabadi Chatra Dal or that he held the position of [Position 1] in [Location 1] Union in Comilla from 2005 to 2014 as claimed. Nor does the Tribunal accept the applicant was or is a BNP activist.
The Tribunal acknowledges the applicant demonstrated some knowledge at hearing of local area politics including being able to correctly name local AL and BNP candidates. However, despite claiming to have had a long association with the BNP and to be an elected official of the party for nine years the applicant failed to demonstrate a convincing level of knowledge of the BNP’s political platform. At the hearing he appeared to be struggling to recall points he had committed to memory and when this was discussed with him he put it down to the fact that he was upset and not feeling well because he is worried about his family. The Tribunal accepts the applicant may have found the proceedings somewhat stressful and that being separated from his family could be upsetting. However, the Tribunal does not consider that this sufficiently accounts for his inability to articulate the key policies of his party in any convincing detail or for the fact he could not articulate any of the key differences between his party and that of his political rival, the AL. Further, the applicant was unable to describe the functions of his position in any detail or how his position differed to other executive positions. He was also unable to account for all the positions in the executive committee despite claiming active membership of this body for nine years. The Tribunal considers the applicant lacked the level of knowledge that would be gained through sustained involvement as an activist and office holder in the local branch of his party. The Tribunal does not accept the applicant’s claimed level of political activity in Bangladesh, including that he was a student activist, heavily involved in local area BNP politics or the [Position 1] of the BNP in his local area.
In forming this opinion the Tribunal has had regard to the letter provided from the [named] District BNP however does not find it reliable given the applicant’s unconvincing testimony in respect of his party and his role as [Position 1]. In forming this view the Tribunal has also placed weight on the above mentioned country information which indicates that fraudulent documents can easily be procured in Bangladesh. The Tribunal has concluded that this evidence has been produced for the purpose of strengthening the applicant’s claims for protection.
In view of the above findings and for reasons expressed below, the Tribunal is also not satisfied that the past harm which the applicant claims occurred in Bangladesh on account of his political opinion and/or activities can be believed.
The applicant claims that he was recruited to work as an “[occupation 1]” in [Agency 1] by a then senior figure in the BNP, [Mr A]. He has been consistent in this claim and has produced a letter to this affect. The Tribunal accepts the applicant took up his role in the [agency] when the BNP was governing the country. The Tribunal also accepts that change of governments can bring about changes in staffing in government agencies and therefore finds it plausible the applicant’s tenure came under pressure when the AL came into power. The Tribunal accepts the applicant worked as an [occupation 1] with the [agency] and that he may have left his employment due to unpleasant relations with fellow AL staff. However, for the following reasons the Tribunal does not accept the applicant was viewed as a person with significant political connections with the BNP because of his employment or that he was physically assaulted and threatened by AL members of staff.
On the available evidence the applicant was employed as an [occupation 1] and the Tribunal therefore doubts that by reason of this role or the manner in which he was recruited that he was necessarily viewed as a person with significant political connections. On the applicant’s oral evidence the staff at the [agency] was made up of a mixture of BNP and AL supporters. The Tribunal also notes the applicant claims that he was physically attacked by AL staff members in 2010 and yet remained in his job until 2013. The Tribunal notes the applicant claims he paid off his aggressors however if he was indeed viewed as a person with significant political connections to the BNP, and a known BNP activist, it could be expected he may have come to further and more serious harm at the hands of his AL colleagues based on the country information referenced in submissions made on his behalf.
The applicant has submitted that he was physically attacked in 2010 and 2012 and threatened with serious harm in 2013 and in a series of phone calls which occurred in 2015. Further he claims that in 2014 two false legal cases were brought against him and his home was looted.
The Tribunal notes and finds it significant that the applicant failed to mention the physical attacks upon himself in 2010 and 2012 in his original application for protection. When presented with an opportunity to comment on this he did not. Further, his oral evidence in respect of the threatening phone calls he received in 2015 differed to his written evidence as noted above. In response to this he merely said that the additional phone calls he received on [specified dates in] May were made to the same number as the call made on [an earlier date in] May. As to concerns raised by the Tribunal about the omission of these extra calls from the general diary entries he said he didn’t report that property. The Tribunal did not find his responses plausible or persuasive.
In addition to the above, the Tribunal finds it highly unlikely in the circumstances that the applicant, who claims to have been an elected officer holder of the BNP and to have been a person of adverse interest to the AL, would have approached an AL leader, even if that person was from outside his local area, to lodge general diary reports with the police on his behalf particularly as the reports implicated AL people in threatening behaviour. In this regard, the Tribunal has had regard to, and accepts, the submissions made on the applicant’s behalf in respect of the politicised nature of the police and the criminal justice system in Bangladesh. Even if the AL leaders took money from the applicant to make the reports the Tribunal considers it highly unlikely they would have honoured the arrangement. As discussed with the applicant at hearing the Tribunal considers it more likely they would have absconded with his money given the circumstances of the complaint and the level of animosity which reportedly exists between the rival political parties. Also, as the Tribunal pointed out at hearing it is peculiar that the general diary reports which were made at different police stations following separate incidents several weeks apart are both dated [a date in] May 2015. The applicant stated that it is open to the Tribunal to cross check the information with the police stations in Bangladesh however for the concerns expressed herein the Tribunal has not done so. The Tribunal considers it would be relatively easy for the applicant to produce or procure the general diary reports in a bid to strengthen his claims and has concluded that this is what he has done.
Furthermore, as discussed with the applicant at hearing despite these claimed attacks, threats and false cases which were brought against him the available evidence shows that he departed and voluntarily returned to Bangladesh on numerous occasions between 2013 and 2015.
During the hearing the applicant raised for the first time the important fact that he had bribed immigration officials in order to be able to travel in and out of the country. He put forward no explanation as to why he had not mentioned this before. He also submitted that the situation is worse now than it was then.
As discussed with him at hearing the Tribunal does not accept this. The applicant claims to have been physically assaulted on at least two occasions, to have received death threats and that there is an arrest warrant out for him. Further, he claimed at hearing that one of the reasons he was travelling to [Country 1] and [Country 2] was to meet with senior members of the BNP who are exiled there. If the applicant’s evidence is to be believed then he faced a high risk of being arrested and possibly seriously harmed in detention for reason of his political profile. The Tribunal does not accept the applicant bribed immigration officials to enter and exit the country as the late introduction of this claim calls into question its veracity. Further, the Tribunal does not accept that the applicant would risk detention or serious physical harm by continually returning to Bangladesh in the circumstances described when the opportunity existed for him to remain out of the country along with other BNP leaders.

The Tribunal has had regard to the medical certificate produced as evidence of the attack he sustained in 2012 in which his teeth were damaged. The applicant testified at hearing that the certificate is dated 2015 because this was a follow-up treatment he underwent for the injury he sustained in 2012. In any event there is nothing contained in the evidence to verify that the dental treatment was required on account of any injury sustained by the applicant, including the injury he claims at the hands of AL members. For this reason, the Tribunal has given the medical evidence no weight.
In support of the claimed past harm the applicant has also produced various newspaper reports. In summary, translated accounts of these reports state that the applicant was the [Position 1] of [Location 1] Union; that the AL accused the applicant of breaking into and looting their office; that the applicant has gone underground and cannot return to his home; that the applicant’s wife, [and children] have been forced to move out of their house and his children’s education has been interrupted. A further untranslated report reveals a photograph of the applicant standing alongside other people behind a hand held banner.
The Tribunal has considered this evidence but is not persuaded it can be believed. During the hearing the Tribunal put it to the applicant that it has been unable to locate any presence of the publication online. The applicant said it is a local publication and the Tribunal is prepared to accept this. Given the concerns expressed above, however, the Tribunal has serious doubts that the news reports are truthful reports of actual events. In forming this view the Tribunal has had particular regard to the untranslated report and photograph of the applicant at what appears to be a protest rally. During the hearing the Tribunal noted the Delegate’s concern that the photograph appears to have been digitally altered because the size of the applicant’s head is disproportionate to the persons standing next to him. The Tribunal indicated that it shares the same concern. By way of response the applicant stated that he does not know how the picture was taken. The Tribunal considered the applicant’s response but remains of the view the photograph cannot be relied upon. This also causes the Tribunal to doubt the veracity of the other news reports. For this reason and given the abovementioned reports of fraudulent document production in Bangladesh the Tribunal has also not given this evidence weight. Indeed, the Tribunal is of the view that the applicant’s willingness to present evidence which has been digitally altered to suit his purposes seriously calls into question his credibility and the credibility of his claims.
Similarly, the alleged false complaints which have been provided as evidence of the applicant’s claims appear to be little more than typed statements which the Tribunal considers could be easily fabricated in Bangladesh.
Having considered all the available evidence the Tribunal does not accept that the applicant was physically attacked in 2010 and 2012 or at any other time or that his life was threatened in 2013 for reason of his political opinions or political activities. Nor does the Tribunal accept that his house was looted on account of his financial contributions to the BNP; that he has had false cases brought against him; that an arrest warrant is in place for him or that he received any threatening phone calls in 2015. In view of these findings the Tribunal also does not accept that the applicant was asked by the leadership of the BNP to go into hiding for any length of time in Bangladesh. With respect to the latter claim, the Tribunal finds it significant the applicant stated at hearing that he continued to work at [Business 1] until he departed Bangladesh in July 2015. As put to him at hearing this behaviour together with his travels in and out of the country does not support that he was living in hiding. The Tribunal also does not accept that the applicant’s wife and children have been forced out of their home or that his children’s education has been interrupted for reason of his political opinions or activities in Bangladesh.
In there a real chance or a real risk the applicant will suffer serious or significant harm if he returns to Bangladesh
In view of the findings above, the Tribunal is satisfied that the applicant was not a person of adverse interest to the AL or the authorities in Bangladesh on account of his political involvement with, and/or support, for the BNP. The Tribunal finds there is not a real chance he will suffer serious harm on return to Bangladesh on account of his political opinion or any past political involvement he claims he had. He therefore does not have a well-founded fear of persecution for these reasons.
It is submitted that the applicant has a political profile “particularly” in Australia and that his activities in Australia place him at risk of harm on account of his membership of the Bangladesh diaspora involved in activities against the AL. At the outset the Tribunal notes that the submission is significantly at odds with the applicant’s oral evidence that the level of political activity he has engaged in in Australia is less than his political activity in Bangladesh.
Notwithstanding the above, the Tribunal acknowledges the letters provided by [a named official] in 2015 and [another official] in 2018 which attest to the applicant’s engagement with their respective BNP Australia organisations. The Tribunal notes that the 2015 letter repeats the applicants claim that he was the [Position 1] of [Location 1] Union from 2005 to 2014 and states that he will be at risk of serious harm if he returns to Bangladesh for his past political activism. This is a claim the Tribunal has rejected and therefore the Tribunal has not given the letter weight in respect of assessing the risk to the applicant on return to Bangladesh based on his past political activity. The 2018 letter similarly states that the applicant will be at risk of serious harm in Bangladesh due to his political activities and points to his activism with Jatiotabadi Jubo Dal rather than his longstanding role as [Position 1] which is not mentioned at all. Again, the Tribunal is not satisfied the applicant had a political profile which brought him to the attention of the AL prior to his departure from the country and for this reason the Tribunal also does not find this letter useful in assessing the level of risk faced by the applicant in Bangladesh on account of his past political activity.
That said, both letters lend support to the applicant’s claims about his involvement in BNP activities in Australia. The 2015 letter indicates the applicant has been involved with community activities whereas the 2018 letter states that he has been regularly attending meetings and other political activities arranged by the organisation. It further states that the applicant is now the [Position 2] of BNP Australia. Despite this, according to the applicant himself, he only attends meetings every three to four months and has participated in only one protest rally in Canberra. He claims to have contributed funding for the purpose of assisting BNP members in Bangladesh although he has provided no evidence to support this. On his own account his involvement with the BNP in Australia has not been high profile.
Based on the available evidence the Tribunal accepts the applicant has had some limited engagement with the BNP in Australia. It accepts he has attended some meetings, although not regularly and that it is possible he participated in a rally in Canberra. It also accepts he is currently the [Position 2]. However, the Tribunal is not satisfied, on the basis of this activity alone, that the applicant has established a political profile in Australia that will attract adverse attention from the AL or the authorities if he returns to Bangladesh. The Tribunal finds there is not a real chance that he will suffer serious harm on return to Bangladesh because of his BNP activities in Australia.
The Tribunal acknowledges the applicant’s claim that he has donated funds to the BNP in Bangladesh and that this will also put him at risk of harm. When asked about his financial donations to the party in Australia he initially said he sometimes gives [regular amounts] if he can. He concluded that he had donated approximately $[amount] during his time in Australia. The applicant told the Tribunal he is working in [an industry] in Australia and that he has a wife and two children in Bangladesh. Based on the applicant’s oral testimony there is no evidence to support his claimed financial contributions and given his circumstances, and because of the credibility concerns discussed above, the Tribunal is not persuaded that he has been making any financial contributions to the BNP in Australia. Therefore the Tribunal finds he will not be at risk of serious harm on return to Bangladesh for this reason.
While the Tribunal accepts the applicant has had some involvement with the BNP in Australia it considers it likely that this is just as much driven by a desire for interaction with fellow Bangladeshi’s living in similar circumstances to himself in Australia. During the hearing he spoke about his role as [Position 2] and the assistance he provides to young Bengali [children] in this respect. Given the level of political activity described and having regard to the assessment of his past political activity in Bangladesh the Tribunal is not satisfied the applicant will be sufficiently motivated to assume any political role on return which would bring him to the attention of AL members or supporters and/or the authorities in Bangladesh. While the Tribunal repeats its earlier finding that the applicant might prefer the BNP over the AL it is not satisfied the applicant will become a member of the BNP or that he will assume a leadership role within the BNP. Nor is the Tribunal persuaded that he will donate money to the BNP or become an active supporter of BNP events.
The Tribunal has reviewed the country information referenced in the submission to the Tribunal dated 15 August 2018 and notes the claim that the AL is attacking not only BNP leaders but also activists and ordinary people. Based on this information the Tribunal accepts that there are high levels of politically motivated violence in Bangladesh, especially around elections, which in recent times include high levels of intra-party violence. However, the Tribunal’s reading of the extracted most relevant country information referenced in the submission is that persons most at risk of arrest or serious harm are BNP party leaders, activists and active supporters. The Tribunal does not consider the applicant has, will be perceived to have or will assume such a political profile in Bangladesh.
The Tribunal acknowledges the claim made at hearing that AL members living in [Australia] have reported back to either the party or the authorities on BNP supporters engaging in political activity in Australia but there is no evidence before the Tribunal to support this claim. Despite this being put to him at hearing the applicant has produced no further evidence to support this claim. In any event, as noted above the Tribunal is not satisfied that the applicant’s limited involvement with the BNP in Australia will be of interest to the AL or the authorities in Bangladesh.
More recently the applicant has produced a photograph of his son with his arm in a plaster cast. The applicant claims that the injury was inflicted on him by members of the AL in their ongoing bid to locate him and because his Australian based activities have angered them more. In view of the above findings the Tribunal is not satisfied that the applicant is a person of interest to the AL in Bangladesh. Therefore it can see no reason why members of the AL would inflict harm on his young son. Whereas the Tribunal accepts the applicant’s son suffered an arm injury there is no evidence to support that this injury was inflicted by members of the AL for reason of his father’s past political involvement in Bangladesh and/or for reason of his political activity in Australia.
The Tribunal notes the applicant’s claims that his father [and specified family members] have been or are all involved with the BNP. Further, the Tribunal notes the applicant’s claims that his wife, children and brothers are not safe in Bangladesh, that his daughter is unable to attend school and that the AL continue to threaten them with destruction of their home or even death. Given the findings outlined above, including findings in respect of the credibility of the applicant’s political claims and in respect of the low political profile he has assumed in Australia, the Tribunal does accept that any of the applicants family in Bangladesh are involved with the BNP or that he or any of his family continue to be or will be targeted by the AL in Bangladesh for the reasons claimed. The Tribunal finds that there is not a real chance the applicant will suffer any serious harm on return to Bangladesh for these reasons.
Having carefully considered all the available evidence and for the reasons outlined above the Tribunal is satisfied that there is not a real chance the applicant will suffer serious harm on return to Bangladesh on account of his actual or perceived political opinions and/or because of his membership of the Bangladesh diaspora involved in activities against the AL. Therefore he does not have a well-founded fear of persecution for these reasons.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk he will suffer significant harm. The applicant is therefore not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
Member

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

[2018] AATA 4788

3 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Natural Justice