1601678 (Refugee)

[2018] AATA 3649

1601678 (Refugee) [2018] AATA 3649 (10 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601678

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Paul Millar

DATE:10 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 10 September 2018 at 2:07pm

CATCHWORDS
Refugee – Protection visa – Bangladesh – Political opinion –  Undertaken activities for the Bangladeshi National Party (BNP) – Fears harm by the Awami League – Family home under surveillance –  Relocated to avoid harm – Not politically active in Australia – Credibility issues – Inconsistent evidence about series of events – Returned to Bangladesh to visit ill mother – Arranged marriage – Decision under review affirmed

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 January 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of Bangladesh, applied for the visa on 8 September 2015.[1]  The applicant appeared before the Tribunal on 5 June 2018 to give evidence and present arguments in relation to the issues arising in the review.  The hearing was conducted with the assistance of a Bengali speaking interpreter.  At times the applicant elected to communicate directly with the Tribunal in English.  The applicant was represented in relation to the review by his registered migration agent.  The representative attended the hearing.

   [1] The Tribunal’s finding as to citizenship is based on the applicant’s Bangladesh passport which he produced at the hearing.

   CRITERIA FOR A PROTECTION VISA

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, 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.

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 because the person is a refugee.

4. 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).

5. 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.

6. 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).

   Mandatory considerations

7. 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.

   FINDINGS

8. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to his evidence to the Department and the Tribunal, the applicant claims protection on the ground that the Awami League will harm him because of his support for the Bangladesh Nationalist Party (‘the BNP’).[2]  The Tribunal holds the following concerns about the applicant’s credibility.

   Credibility concerns

   The applicant’s willingness to return to Bangladesh in April 2015

   [2] The applicant’s evidence comprises the contents of his protection visa application forms lodged with the Department in September 2015, his written statements dated 7 June 2012 and 19 January 2016; his statutory declaration made on 25 May 2018; his evidence at his interview with the delegate for which there is an audio recording on the Department file and to which the Tribunal has listened and his evidence at the Tribunal hearing held on 5 June 2018. 

9. To the Tribunal, the applicant said that he became involved with and undertook activities for the BNP from the time he was at university.  He continued to undertake activities for the BNP after graduating from university and undertaking employment in Dhaka.  He was never harmed by the Awami League for doing this until September 2010 when a group of people from that party attacked him.  The applicant continued his political activities but was again attacked by people from the Awami League in May 2011.  The applicant’s father approached the police to complain about the attack but the police did not help and said that a complaint had been made against the applicant. From this time, the applicant began living in different places in Dhaka to avoid being found by the Awami League.  In July or August 2011 he decided that he had to leave Bangladesh for his safety and, for that purpose, applied for and obtained a [temporary visa] for Australia.  In April 2012, he departed from Bangladesh and came to Australia.

10. Before narrating the applicant’s evidence about events in Bangladesh after he arrived in Australia, it is important to record the following steps he took to obtain protection.  With his application for review form the applicant enclosed a copy of the decision of the delegate, according to which the applicant applied for protection in June 2012.  This application was refused by the Department, a decision affirmed by this Tribunal (as the former Refugee Review Tribunal and differently constituted).  The applicant sought review of the Tribunal’s decision in the Federal Circuit Court and the Federal Court.  Those proceedings were dismissed.  In March 2015 the applicant sought leave to appeal to the High Court and while those proceedings were pending, he returned to Bangladesh on 8 April 2015.

11. To the Tribunal, the applicant said that between his arrival in Australia in April 2012 and his return to Bangladesh in April 2015 he had been in regular contact with his family who live in his native [town].  In this contact, the applicant was told that on two or three occasions people from the Awami League came to his father’s home and asked for his whereabouts. Apart from those visits, the applicant was told that the Awami League was keeping the family home under surveillance watching to see if he had returned there. This included somebody loitering outside the family home. In addition, they were making inquiries with the neighbours about him.  The Tribunal asked the applicant whether it was his understanding that in the period of three years that he was in Australia, before returning to Bangladesh in April 2015, people from the Awami League had been to his family home looking for him, enquired with neighbours about him and, generally, kept the family home under surveillance to see if he would return there.  In response, the applicant said that was correct.

12. The Tribunal asked the applicant why he returned to Bangladesh in April 2015. In response, the applicant said that his mother was sick and had been ill for the entire period he had been away from Bangladesh.  She thought that she could die and would not live anymore.  So they wanted to see each other. When asked why she thought she would not live anymore at that time, the applicant said that she was sick and old. He said that around that time she was to have an operation.  He then said that she wanted to see him because she was getting old but did not think she would die. When reminded that he had earlier said that she thought she would die and that was why she wanted him to return to Bangladesh, the applicant denied giving that evidence.

13. He said that his mother had been in hospital for check-ups in the period he was away from Bangladesh. He mentioned his mother undergoing surgery and she was in hospital in his native town when he returned. The Tribunal put to the applicant that he had fled Bangladesh in April 2012 to save his life and the news he had received from his family while he had been in Australia strongly indicated that the Awami League had maintained a serious interest in him.  The Tribunal put to the applicant that, in those circumstances, it had difficulty accepting that both he and his parents would be willing for him to return there in April 2015.  In response, the applicant said that his mother demanded that he return to Bangladesh because she was sick.  He added that she thought that she could die.  He said that he loved his parents and it was out of respect for them that he went back.  

14. The Tribunal is not persuaded by the applicant’s responses.  His mother, according to his evidence, was ill when he left Bangladesh and had been so throughout the period he was in Australia.  Even if his mother thought that she would die, a matter about which, as demonstrated above, the applicant gave inconsistent evidence, the Tribunal does not believe that she or his father would still want the applicant to return to Bangladesh knowing that the applicant himself could also die at the hands of the Awami League who, as they knew, were interested in locating him.  For those same reasons, the Tribunal also does not accept that the applicant himself, notwithstanding demands from his parents and his respect for them, would take the risk of returning to Bangladesh.  The Tribunal is not persuaded by the applicant’s claims that he took the risk of returning because he loved his parents[3] and that, as he told the delegate, he was only staying for a few weeks.  He left his parents three years earlier to save his life and it is highly improbable that he would put his life at risk just to return and visit them.   That is so whether, as he claimed below, he tried to cover himself so as not to be recognised and stayed in different places in his native town.

    [3] This is broadly the same explanation he gave the delegate.

15. In a ‘post-hearing statement’, the applicant said that in early 2015 his mother became very sick and told him that she had to undergo urgent surgery.  The applicant was distressed by this and was willing to risk returning to Bangladesh. He did so covertly.  These are the same claims he advanced at the Tribunal hearing for his willingness to return to Bangladesh and, for the reasons given, they do not overcome the Tribunal’s concerns on this aspect of his account.

    Evidence about an arranged marriage

16. To the Tribunal, the applicant said that after his arrival in his native town in April 2015, his parents told him for the first time that they had arranged for him to marry and the wedding took place on [date 1] April 2015.  The Tribunal put to the applicant that it had difficulty accepting that his parents would only tell him about this on his return to his native town and not before then.  The applicant was taking a great risk to return to his family given the persistent and serious interest maintained in him by the Awami League over the previous three year period.  In those circumstances, it struck the Tribunal as being highly improbable that his parents would have made this arrangement and not told him before he left Australia.

17. In response, the applicant said that in his culture it was common for arrangements of this nature to be made by parents and the marriage to take place shortly thereafter. He said also that his mother just wanted him to be married and was not thinking about any danger for him.  The Tribunal is not persuaded by that response and, even allowing for different cultural practices, the Tribunal does not accept that his parents would say nothing about this to him in his particular circumstances.  The applicant also said that he did not know when the actual arrangement had been made suggesting that this could have taken place once he returned to Bangladesh.  He said that they had been looking around for a bride for him and did not say when they had actually decided on the woman who became his wife.  The Tribunal asked the applicant when his parents’ decision that he marry this woman was actually made.  In response, the applicant said that he did not know and he never asked his parents. He wanted to please them.

18. Again, the Tribunal finds that evidence unconvincing. The Tribunal finds it highly improbable that, in his claimed circumstances, there were no discussions between him and his parents about when this actual arrangement was made.  The whole suddenness of an arranged marriage taking place within two weeks of the applicant’s return to the country he had fled three years earlier to save his life and the applicant’s ignorance of the circumstances of that arrangement was not credible.  Further, assuming the arrangement for him to marry had been made while he was in Australia and this was a reason his parents would want him to return to Bangladesh, the Tribunal still does not accept he would take the risk of returning there and that his parents would be willing for him to take that risk in the circumstances of his case.  Again, if the arrangement was made while he was in Australia, the Tribunal does not believe, in those circumstances, his parents would withhold that from him until he returned to Bangladesh.

19. In his ‘post-hearing statement’ the applicant said that it was normal for marriages in Bangladesh to be arranged and suddenly take place. The applicant wanted to please his parents. The Tribunal can accept these claims but does not believe that such steps would be undertaken in the applicant’s claimed circumstances and without any prior discussion with him.

20. To the Tribunal, the applicant said that when he arrived back in his native town, his mother was in hospital, but, not long after, she was discharged for a few days.  The doctor thought that she could get better but after one or two days she had to go back to hospital again because her health deteriorated.  In the few days that she was discharged from hospital she attended the applicant’s wedding on [date 1] April 2015 which was held at his aunt’s home with only a small number in attendance.

21. To the delegate, the applicant said that when he arrived in Bangladesh his mother was in hospital, she was in hospital for one month and she had an operation on 18 April 2015.  The delegate asked the applicant if his mother was in hospital for that ‘whole period’ and he answered ‘yes’.  He then gave evidence about his wedding and said very few people attended.  The delegate asked the applicant if his parents were present and he said ‘of course’ they were.  He then said that was not correct.  He said that his father attended and his wife’s mother attended.  He said that his wife’s father did not attend because he was sick.  The delegate asked the applicant whether his mother attended the wedding and he said ‘No’.  Further in the interview, the delegate returned to this issue and said that with his application for ministerial intervention he had enclosed a photograph of him with his parents which the delegate thought was a photograph of the three of them at his wedding.  In response, confirming his evidence that his mother was not at his wedding, the applicant said that this photograph was taken at a later time and not on the wedding day.

22. The Tribunal understood the applicant’s evidence to the delegate to be that for the period he was in Bangladesh on his return trip in April 2015 his mother was in hospital and she did not attend his wedding.  The Tribunal put to the applicant that this was inconsistent with his evidence to the Tribunal that his mother did attend his wedding having been temporarily discharged from hospital.  In response, the applicant said that his mother had been in hospital but in view of the wedding she was allowed to be discharged and attend. The Tribunal put to the applicant that this was not his evidence to the delegate.  In response, the applicant said that perhaps there had been a misunderstanding.  He claimed that he did not tell the delegate that his mother was absent from his wedding. He said that he had submitted a photograph of his mother at his wedding.

23. The Tribunal has listened to an audio recording of the interview with the delegate and the applicant did tell the delegate that his mother was not at his wedding.  Further, the photograph of the applicant together with his parents, according to his evidence to the delegate, was not taken at the wedding.  He told the delegate that it was taken at a later time.  The applicant’s evidence about his mother’s presence at his wedding, a matter about which he can reasonably be expected to give a consistent account, is inconsistent and he has not provided a satisfactory explanation for that.  In making that finding, the Tribunal took into account submissions dated 22 May 2015 the applicant made in support of his application for ministerial intervention in which he stated that his wedding took place with only his family and his wife’s family present.  That is not consistent with the account he gave the delegate which was that his mother was not present.

24. In submissions dated 28 May 2018 the representative submitted that the applicant was legally married on [date 1] April 2015 and a small discrete wedding at home with the family was held on [date 2] April.  Again, that is still inconsistent with the applicant’s evidence to the delegate that his mother did not attend any wedding.  In addition, the representative submitted that the applicant was anxious at his interview with the delegate; such interviews are pressured and, because he did not use an interpreter at the interview and because of the accent on his English, certain things he said were not understood properly by the delegate.  In his statutory declaration, the applicant made similar submissions.

25. The Tribunal has listened to the audio recording of the interview with the delegate and the applicant confirmed at the interview that he was willing to proceed without an interpreter.  To the Tribunal’s observation, notwithstanding the submissions made by his representative, the applicant was well able to comprehend the delegate’s questions and respond to them.  The Tribunal does not accept that the delegate misunderstood the applicant’s evidence. The delegate gave the applicant ample opportunity to explain whether or not his mother was present at his wedding and he clearly said that she was not.  That is inconsistent with his evidence to the Tribunal that she was present and this inconsistency is not credible.

1. In his ‘post-hearing statement’, the applicant repeated the evidence he gave the Tribunal that his mother attended his wedding but he did not explain why he told the delegate that she was absent from his wedding.

Evidence about where the applicant stayed on return to Bangladesh

1. To the Tribunal, the applicant said that on this return trip he stayed in different places in his native town.  He covered his face to avoid being recognised by the Awami Leauge.  He stayed mostly at the hospital in that town with his mother.  He also stayed at the home of an aunt in that town.  In addition, the applicant said that he stayed one night with his father at the family home in another part of his native town.  When asked why he stayed at the family home for only one night, the applicant said that he wanted to stay with his father but left the following day as he did not feel secure there. He thought that if he stayed any longer than one night the Awami League would find out and come to apprehend him.  The Tribunal asked the applicant why, if he did not feel secure at the family home, he would stay there for even one night. In response, the applicant said that he loved his father and wanted to see him.  The Tribunal is not persuaded by the applicant’s evidence and does not accept that he would risk actually staying in the family home for even one night given for the preceding period of some three years, according to his evidence, the Awami League had been watching the house to see if he would return.  While he wanted to see his father, they could have easily seen each other in some other location.

2. To the Tribunal, the applicant said that a few days after staying with his father the Awami League had gone to that home and spoke to either his father or his uncle asking about the applicant. He said that this visit took place after his marriage. The Tribunal asked the applicant what he did once he was given this news. In response, the applicant said he did not go back to his father’s home and he went straight to the airport.  After giving that evidence, the applicant then said that he did not go straight to the airport. He said that he was with his mother and his new spouse until the date of his (originally booked) flight from Bangladesh to Australia.  He said that he remained with his mother and spouse for two or three days then he went straight to the airport in Dhaka remaining in a lounge there for a few hours before boarding his flight for Australia.

3. The Tribunal asked the applicant why he would remain in his native town for a few more days after learning of the visit from the Awami League.  In response, the applicant said that under the air ticket he had he could not alter the date of his departing flight.  He wanted to stay with his mother and his wife.  Even if he could not alter the date of his departing flight, in his claimed circumstances, it was highly improbable that he would be willing to remain in the same town where, so he had been told, the Awami League had been alerted to his return and wanted to find him.  That is the case notwithstanding any desire to spend more time with his mother and his wife. The Tribunal does not accept that he would not straight away flee from his native town for his safety.

   Evidence about undertaking employment and political activities after deciding in 2011 to leave Bangladesh

4. To the Tribunal, the applicant said that after he was attacked in May 2011 he was frightened for his safety. For that reason, he stopped going to his work as [an occupation] in a business in Dhaka.  From this time he began to stay in different places around Dhaka to avoid being found by the Awami League.  In approximately July or August 2011 the applicant decided that he could not remain in hiding indefinitely and he had to leave Bangladesh. Prior to that time, he had hoped that the threat would pass but he felt that the situation had not changed.  He thought he had to leave Bangladesh to be both mentally and physically safe.  Even so, the applicant said that he returned to his work after a few months and he also continued his political activities for the BNP.

5. With respect to those activities, the applicant said that he continued his activities just not ‘in the front line’ as he had been doing before this second attack.  The applicant said that the activities he performed in this period were liaising with other party members over the telephone and he did that until leaving Bangladesh to come to Australia. In this period, he did covertly go to the party office for meetings when they were held.  As for his employment, the applicant said that he returned to his work but not ‘in the front line’.  He would attend for a few days then stay away for a few days. He would go when it was essential for him to attend.  He also referred to, in this period, maintaining ‘formalities’ for a period of giving notice that he would be leaving that position.  When asked for what tasks his employer would need him to return to his work when, at the same time, the applicant was claiming to be in hiding, the applicant repeated his earlier evidence that he worked as [an occupation] and that involved advising people how to obtain visas to study in other countries and helping them with paperwork that had to be submitted. 

6. The Tribunal asked the applicant how long before he left Bangladesh in April 2012 he attended his work for the final time.  In his responses, the applicant gave varying dates before finally saying that he attended his work covertly on an infrequent and regular basis almost up until he left Bangladesh in April 2012. It seemed highly improbable to the Tribunal that the applicant would decide to flee from Bangladesh to save his life as early as August 2011 but remain there for approximately another six months, continuing to undertake employment and political activities.  That did not appear to the Tribunal to be the conduct of somebody in hiding and seeking to flee from their country for their safety.

7. In response to this concern, the applicant said that it was difficult for someone with a Bangladesh passport to go to another country and he had to look after things.  In that respect, he said that he had to look after his parents who were ill and stressed. He had to arrange money. His employment and political activities were undertaken covertly.  He learned of the possibility of applying for a [temporary visa] to Australia approximately one month before he made his application in February 2012.  He did not make any such application before then because he could not openly approach agencies about that given he was in hiding.  Although granted the visa in February 2012, he remained in Bangladesh until April that year because he had to arrange for money for his trip and he had to go and briefly visit his parents before leaving the country. 

8. The Tribunal is not persuaded by the applicant’s responses.  He was employed as someone engaged in helping people to obtain visas to go to other countries.  It seemed improbable that it would take some months before he would know about the possibility of applying for a [temporary visa] to Australia.  The need to briefly visit his parents is not a reason for remaining in Bangladesh for some months after making his decision to leave the country for his safety. The Tribunal is also not persuaded that living in hiding in some way hindered him making appropriate arrangements with respect to his parents, finance and a means of leaving Bangladesh. Notwithstanding his claim to be in hiding, the applicant was undertaking employment and political activities. While he claimed both were done covertly, it nevertheless involved him, even if infrequently and irregularly, attending a party office or going to his workplace where he could have come to the attention of the Awami League.  Overall, the applicant’s account of deciding to flee from Bangladesh in July or August 2011 but remaining there for another six months and undertaking political activities and employment in that period was not credible. 

9. In his ‘post-hearing statement’, the applicant repeated his claim that when he returned to work he was not in the ‘forefront’ and did so discreetly.  His employer was short of staff, he wanted to complete his work and he needed money to survive.  He continued his political activities discreetly, over the telephone, in different locations and only occasionally attended small party meetings where he knew everyone who was attending.  These are the same explanations the applicant gave at the hearing and, for the reasons given above, the Tribunal does not believe the applicant would return to his work and undertake political activities in his claimed circumstances.

10. In his ‘post-hearing statement’, with respect to why he remained in Bangladesh until April 2012, the applicant submitted that he had to work to earn money. He again repeated his claims about doing this covertly and added that he need to make plans and it was difficult to leave his parents behind. It was not until some people told him about the possibility of applying to come to Australia that he investigated that avenue.  He then said that he had to close his affairs, go to see his parents and did so covertly. At the same time that the applicant advances these claims he also said that he thought that if he remained in Bangladesh he would be killed.  These are broadly similar to the claims the applicant made at the Tribunal hearing when asked to explain why he was still in Bangladesh as at April 2012 and undertaking employment and political activities.  For the reasons already given, the Tribunal is not persuaded by these claims and does not believe the applicant would behave as he did in his claimed circumstances.

    Conclusions on credibility

11. 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.  The Tribunal does not believe that if the applicant had fled from Bangladesh in 2012 to save his life he would return there in 2015.  The applicant has not given a satisfactory explanation for his willingness to return to his country in his claimed circumstances. His lack of credibility in this respect was only confirmed by the concerns discussed above that arise from his evidence as to what took place in this stay in Bangladesh in 2015.  His lack of credibility was further confirmed by his improbable account of deciding in August 2011 to flee from Bangladesh for his safety, but, remaining there until April 2012 undertaking employment and political activities.

12. The combination of all of these concerns significantly discredits the applicant as a witness to the degree that the Tribunal finds that the account of events on which his protection claims are based is false.  Accordingly, the Tribunal disbelieves the applicant’s account of undertaking activities for the BNP and being attacked by the Awami League.  The Tribunal disbelieves the applicant’s evidence about the Awami League approaching his family about him at any time and keeping the family home under surveillance.  The Tribunal disbelieves the applicant’s evidence about living covertly in Bangladesh after May 2011 and returning to his native town in a covert fashion in April 2015.

13. In making this finding, the Tribunal considered documents produced by the applicant to support his claims.  In this respect, the applicant produced a certificate from a hospital in his native town issued in March 2015 and according to which his mother was being treated in that hospital.[4]  The applicant also produced a letter from a BNP officer in Bangladesh the contents of which contradicted the applicant’s evidence.[5]  According to this letter, the applicant was subjected to ‘many physical assaults’ by the Awami League in 2011.  The Tribunal put to the applicant that this was inconsistent with his evidence to the Tribunal that in fact he was attacked twice by the Awami League, once in 2010 and once in 2011.  In response, the applicant said that there were many threats and what one would call physical assault in Australia happened once in 2011.  He did not know why the letter did not also state that he was attacked in 2010.  The Tribunal rejects the applicant’s response because the tenor of the letter is that the applicant was attacked many times in 2011 and not just once as the applicant said in his evidence to the Tribunal. 

    [4] See folio 115 of the Tribunal file.

    [5] See folio 116 of the Tribunal file.

14. In his ‘post-hearing statement’, the applicant said that he asked the author of this letter to confirm his position in the BNP and did not tell this person to mention his ‘entire history’.  That submission does not overcome the inconsistency between the applicant’s account and the account given in this letter.  The Tribunal has carefully considered the contents of these documents but they do not outweigh the concerns the Tribunal holds about the applicant’s credibility which significantly discredit him as a witness.  The BNP officer gave his telephone number in the letter.  Neither the applicant nor his representative requested that the Tribunal contact him.  Any such request would have been declined given that the statements made by the officer in this letter are inconsistent with the applicant’s own evidence.  As stated above, the Tribunal’s concerns about the applicant’s credibility are significant and would not be overcome by the officer reciting the contents of this letter. Nor would those concerns be overcome by having the BNP officer write another letter as the applicant suggested in his ‘post-hearing statement’.  For the reasons given, the Tribunal does not give evidentiary weight to this letter or the medical record from the hospital in the applicant’s native town.

15. To the Tribunal, the applicant said that he had not been politically active in Australia. He had visited the BNP office in Australia a few times just to say hello.  However, he did not wish to be involved because he did not approve of the way politics were undertaken in Bangladesh. Because he is not a witness of truth, the Tribunal does not believe that the applicant has made contact with the BNP in Australia.  The Tribunal has no credible evidence before it about the applicant’s political opinions. The applicant told the Tribunal that the only ground on which he claims protection is his fear of the Awami League due to his support for the BNP when he lived there.  For the reasons given above, the Tribunal disbelieves those claims. 

16. On the department file and also with his application for ministerial intervention, the applicant has submitted photographs of him together with his wife and the Tribunal is willing to accept that when the applicant returned to Bangladesh in April 2015 he married his wife.  However, that in itself does not demonstrate that the applicant’s account on which his protection claims are based is true.  For the reasons already given, the Tribunal does not believe the applicant’s evidence surrounding the arrangements for this marriage and his ignorance of that.  If anything, the fact that the applicant returned to Bangladesh in April 2015, assuming he did so to get married, only demonstrates that he does not genuinely fear harm in that country and that his claims to be of adverse interest to the Awami League are false.

17. The representative made written submissions dated 28 May 2018. With the submissions, the representative provided a large amount of country information about political violence in Bangladesh, how the Bangladeshi government and police treat dissent and opponents and human rights practices in Bangladesh in general. To the Department, the applicant provided similar information.  All of this information was submitted in the context of the applicant’s claims that he supported and undertook activities for the BNP and, as a result, the Awami League wished to harm him.  For the reasons given above, the Tribunal disbelieves the applicant’s claims about this and this country information does not assist him nor demonstrate that there is a real chance he will suffer serious harm in Bangladesh. The representative made reference to two attacks by Islamic state, the targets being the Army and police.  Considering the agencies targeted in these attacks, as a civilian, the risk of the applicant suffering serious harm on this ground is remote.

18. The representative also submitted that according to country information two men who were BNP leaders had been recently arrested and held in detention.  The representative submitted that the applicant had worked with these men when they were in lower level positions in the party.  She said that the applicant could not possibly have known that these men would later become leaders and get arrested and so that meant his evidence was credible.  The Tribunal acknowledges this information but it does not demonstrate that the applicant is relating a truthful account. Her submissions and this information do not overcome the concerns the Tribunal holds about the applicant’s credibility and which significantly discredit him as a witness. Accordingly, those submissions are rejected and the Tribunal remains of the view that there is no credible evidence about the applicant’s political opinions and his claims to have been politically active in Bangladesh are disbelieved.

19. There is no credible evidence that the applicant suffered harm in Bangladesh. There is no credible evidence that anyone in Bangladesh seeks to harm him. There is no credible evidence as to why the applicant left Bangladesh in April 2012, why he returned there in April 2015 and why he returned to Australia the following month. There is no credible evidence as to why the applicant does not want to return to Bangladesh. For all of the reasons given above, the Tribunal finds that the applicant does not hold a well-founded fear of persecution within the meaning of s.5J(1) of the Act.[6]  For those same reasons, the Tribunal finds that the applicant does not meet the complementary protection criterion.

    [6] The Tribunal had access to the Department file relating to the application made by the applicant in 2012 for a [temporary visa]. The contents of that file are not relevant to the grounds on which this review has been determined.

    CONCLUSIONS

20. 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).

21. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

22. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

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

    Paul Millar
    Member