1603263 (Refugee)

1603263 (Refugee) [2018] AATA 4575 (28 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1603263
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:David McCulloch
DATE:28 September 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 28 September 2018 at 9:01am

CATCHWORDS
REFUGEE – protection visa –Bangladesh – imputed political opinion – involvement with the JCD during student days – false criminal charges – limited involvement with BNP Australia – no plans to continue political activism in Bangladesh – delay in applying for protection – invalid s438 certificate – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 438, 499
Migration Regulations 1994 (Cth) Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Yao-Jing Li v MIMA (1997) 74 FCR 275
Prasad v MIEA (1985) 6 FCR 155
Luu & Anor v Renevier (1989) 91 ALR 39
Randhawa v MILGEA (1994) 52 FCR 437
Abebe v Commonwealth of Australia (1999) 197 CLR 510
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 29 February 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 13 August 2015.
The applicant appeared before the Tribunal on 19 September 2018. The Tribunal was assisted with the use of an interpreter in the Bengali language.
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.
Paragraph 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Report – Bangladesh, 2 February 2018, a copy of which was given to the applicant in the hearing and extracts of which are set out later in this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and claims
The applicant provided to the Tribunal a copy of the decision of the delegate which indicates the following in relation to his migration history. On 29 April 2014 the applicant applied in Dhaka for a [Temporary visa 1] which was granted on 26 June 2014. The applicant arrived in Australia on 24 August 2014. The application for the Protection visa was lodged on 13 August 2015.
The application forms for the Protection visa indicate the following in relation to the applicant. The applicant was born on [date] in [District 1], Bangladesh. The applicant has never been married. The applicant lists both parents living in Bangladesh. He has [sisters] living in Bangladesh. He has one brother living in [Country 1], another brother living in [another country] and a third brother living in [another country]. The applicant left Bangladesh to come to Australia legally. The applicant lists one address lived at in [District 1] from birth until April 2002. He lists another address in [District 1] from April 2002 until August 2014.
The applicant completed his Secondary School Certificate in [year], studied at [school]. The applicant completed his Higher Secondary Certificate in March [year], studied at [College]. The applicant thereafter studied at [University 1] in [District 1] a course [which] he completed in October 2010. The applicant completed a [postgraduate degree] at [University 2] in [District 1] which he studied from September 2012 until August 2014. From January 2014 until June 2014 the applicant completed [another course] at [University 2] in [District 1].
The applicant provides no employment history in relation to Bangladesh. He indicates that from April 2012 until August 2015 he worked for a company as an [occupation] in [Country 1]. In the hearing, the applicant indicated that this was work undertaken remotely in Bangladesh and Australia.
In Australia the applicant worked [at a workplace] from October 2014 until April 2015. From July 2015 until at least the time of application the applicant worked as [an occupation] for a company in [a suburb].
The applicant provided the following statement to the Department of Immigration (the Department) as part of his application (not corrected for spelling or grammar):
My name is [name deleted]. I was born in Bangladesh on [date of birth]. The name of my home district is [District 1]. I am an active mernber of Bangladesh Nationalist Party (BNP).
My father was also an active supporter of BNP. He was [an occupation] and he retired from his [service]. He used to share his ideas and philosophies with me. I was elated and motivated by his ideology and personality.
The BNP was founded as a centre-right liberal democratic party. It was established on September 1, 1978 during the regime of Ziaur Rahman. It has ruled Bangladesh for a total of 14 years and three terms since its birth (1978-1982, 1991-1996, 2001-2006). While I was studying in [school], The Eighth National Parliamentary Elections were held in Bangladesh on 1 October 2001. BNP came into power in this election.
Bangladesh Jatiotabadi Chatra Dal also known as JCD, is the student wing of the Bangladesh Nationalist Party (BNP). I was impressed by the educational and developmental activities of JCD and became a follower in 2001. I passed my Secondary School Certificate (SSC) and Higher Secondary Certificate (HSC) in [year] and [year] respectively. During studying in [College] in [year], I became an active member of JCD.
I got admitted at [University 1] under [an academic department]. I showed my keen interest to support students along with performing in my class. The governing body of JCD at SUST was fascinated by inspecting my academic performances and political activities. I was able to manage both academic performances and political activities simultaneously.
As a result of lively engagement with nationalist political activities, I was assigned as [an office bearer] of our university in 2008. The Ninth National Parliamentary Elections 2008 were held in Bangladesh on 29 December 2008. The election resulted in a landslide victory for the Awami League-led grand alliance, which won 263 seats out 300. After the national election in 2008, student wing of present ruling party Bangladesh Chhatra League (BCL) became too much furious in different campuses and outside of the campuses. Their violence was unbridled in almost all tertiary educational institutions. Hall dominance, campus capture, intra BCL clashes, tender politics and in other crimes they were so active and visible for last few years. [University 1] was no exception in terms of violence by BCL. We started protesting against ferocity of BCL but their effort was supported and backed by Administration.
In February 2010, I became [an office bearer] of Jatiyotabadi Chatrodol [in that location]. We kept protesting against misuse of political power by BCL in [District 1] area. Consequently, BCL attacked JCD in March 2010 and BCL activists severely beat activists of JCD as we protested against their abuse of power. This incidence later sparkled throughout the campus and I was injured due to this incidence. I had to take treatment from a private hospital for this injury. Still I was being threatened by BCL activists. Amid political violence I appeared for the final semester exam and I passed successfully with securing [high results] in the same year.
In November 2010, I became [an office bearer] of Jatiyotabadi Chatrodol [in that location]. For accomplishing post-graduation, I got admitted at [University 2] under [an academic area] in 2012. In addition, to maintain my financial solvency I became a member of [an organisation] started working as a freelancer in the same year. I actively participated in [District 1] City Corporation Election 2013 and BNP backed candidate [became] the City Mayor of [District 1].
After the election, the ferocious activists of BCL keep threatening me. I got scared and I tried to escape from own country to save my life. Eventually, I applied for [Temporary visa 1]. On 26th June, 2014 I had been for a [Temporary visa 1]. In the meantime, I accomplished my post-graduation [and] passed successfully with [good academic results].
In July 2014, Police charged me for vandalism, assault, stabbing and wreckage on police. I moved to Australia with [Temporary visa 1] in August 2014. After leaving Bangladesh, a warrant was issued against me for those charges made in July.
Once again, another case was filed in November 2014 against me for vandalism, destructions and attacking on police vehicle with petrol bomb. During this period, I was in Australia. Due to absence of me in house, police kept frightening my family members. The BCL activists threatened my family as well. They warned my parents that my life will be in danger once they get my presence in Bangladesh.
I anticipate and believe that my life will be endangered if I return to Bangladesh. I don't think, I can lead a social and human life in Bangladesh. Overall, under the current regime I am fear of my life in Bangladesh.
The applicant provided the following documents to the Department:
·Original in English of an Injury Certificate dated [March] 2010 from [a medical clinic] indicating treatment of the applicant on that date relating to an admission that occurred at 3pm with the description of the injuries being ‘cutting and bleeding injury to many parts of body’.
·Document in English under the seal of a Notary Public being a First Information Report issued by officers of [a] Police Station dated [July] 2014 referring to an incident on the same day occurring at about 11:20am. It refers to the applicant as the first accused (together with other accused) and the applicant being [an office bearer for], Bangladesh Jatyotabadi. There is reference to eight accused. In relation to all of the accused there is reference to their respective positions and the names of their fathers. The applicant’s father is referred to as ‘late’ before being named. The offence is of unlawful assembly decorated with deadly weapons rioting, vandalism, firing and attacking upon police in order to commit murder.
·Document in English under the seal of a Notary Public being a Charge Sheet dated [December] 2014 being issued by [a] Police Station against five accused with the applicant being the first accused noting that he is [an office bearer of] Jatyotabadi Chatrado. The summary of occurrence is that the various accused including the applicant were involved in an anti-government movement. There is a reference to injuries and vandalism. There is reference to constables on duty firing from guns. There is reference to teargas and physical assault to policeman. The applicant is listed among five of the accused who have absconded.
·Document in English under the seal of a Notary Public being a Warrant of Arrest dated 23 December 2014 for the applicant in relation to a criminal case lodged under various sections against the applicant.
·Letter in English from [an] Advocate, [District 1], dated [January] 2016 to the applicant informing the applicant of various (above) criminal cases filed against the applicant. Included is a case filed in the [Police] Station which is ‘under trial’ of the Chief Judicial Magistrate. It is indicated that a fresh criminal case has been filed at this station against the applicant and that the writer has been appointed as the applicant’s lawyer. It recommends that the applicant not return to Bangladesh. It advises him to stay abroad for his security.
·Certificate dated [January] 2016 from the President Bangladesh Jatyotabadi Chatradal [of a certain] Unit indicating that the applicant is an activist and organiser and became [an office bearer] at [University 1]. It refers to the situation in Bangladesh being risky for the applicant.
The applicant provided the following additional documents to the Tribunal in advance of the hearing:
·Letter dated [September] 2018 from [the] President of BNP, [District 1] District, indicating that the applicant was [an office bearer] in the student wings at his universities and also [an office bearer] of the [District 1] City Branch in 2010. It indicates that the applicant is an active young political leader and was a victim of the ruling Awami League. He participated in many meetings, rallies and demonstrations in the [District 1] City area. The Awami League has attacked him and his family ‘few times to killed’.
·Letter from [a member] of the BNP Australia indicating that the applicant has been a general member since 2015 and [an office bearer] of [State 1] BNP since 2018. [This member] has been informed that the applicant was an active young leader and [an office bearer] in student wings in his universities and [office bearer] of the [District 1] City Branch in 2010. The letter indicates that the applicant’s life was in danger because he engaged in demonstrations and strikes and that false cases have been made against him and that if he returns to Bangladesh police would arrest him.
·The applicant’s Membership Application Form dated [August] 2015 for the BNP Australia.
·Photographs of what appears to be political activities
·Copy of the original and translation of [a source]. The applicant is listed together with a number of other individuals as [deleted].
·Copy original and translation of [a source]. The applicant is one of the [individuals] that are referred to.
·List of members of the [State 1] committee 2018-20 of the BNP Australia dated [2018] including indicating the applicant as [an office bearer].
Independent evidence
DFAT Country Report – Bangladesh, 2 February 2018 provides as follows in relation to the political situation, political parties, other political support groups and political violence:
Political Parties
The AL and the BNP have dominated politics in Bangladesh since independence. The AL has traditionally been broadly liberal, secular, rural-based and pro-Indian, while the BNP has been more conservative, anti-India, urban-based and more accommodating of political Islam. Both parties have been prepared to compromise these ideologies for the sake of political expediency: the AL, for example, has recently worked to cultivate close ties with conservative Islamists.
The relationship between the two parties is characterised by longstanding enmity. Both parties derive their legitimacy from their claim to be the true heirs of Bangladeshi nationalism: the AL led the independence movement before and during the 1971 civil war, while the BNP holds as its institutional basis the ideology of Bangladeshi nationalism. The rivalry between the two parties is also deeply personal at the highest levels: the AL’s leader, Sheikh Hasina, is the daughter of the ‘Father of the Nation’ Sheikh Mujibur Rahman; the BNP’s leader, Khaleda Zia, is the widow of the party’s founder, former General and President Ziaur Rahman. Sheikh Mujibur Rahman and Ziaur Rahman were both assassinated in office, and their respective parties view them as martyrs.
These factors have contributed to the approach taken by both parties of treating politics in a confrontational ‘winner takes all’ fashion. The ruling party’s affiliated organisations have historically controlled all public institutions while that party has been in power, and both the AL and BNP have exploited the state machinery to suppress government opponents. As noted in relevant sections, international and domestic observers have expressed concern over the extent to which the current AL government has restricted the activities of civil society organisations and journalists, while further politicising state institutions such as the police, military and judiciary.
The AL has also focused on restricting the activities of opposition political parties, particularly the BNP and JI (see following section). These restrictions have included arresting thousands of opposition political party members and supporters, often in conjunction with political demonstrations (see Arbitrary Arrest and Detention), preventing opposition parties from holding meetings and demonstrations, and pressuring opposition candidates to withdraw from local and municipal elections, including through preventing them from submitting election nominations. Opposition figures have also been prevented from leaving the country (see Exit and Entry Procedures), and many (including Khaleda Zia) have faced legal sanction, including sedition charges. In October 2017, authorities issued two further arrest warrants for Khaleda Zia, who was at the time travelling outside Bangladesh.
DFAT assesses that under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges and travel bans. Active members of opposition political parties and auxiliary organisations (see following section) who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. This risk is elevated around times of heightened political tension, including elections. Ordinary members of opposition political parties and auxiliary organisations who do not engage in political activities and demonstrations face a low risk of arrest, although this may vary according to location and timing.
Political Auxiliary Organisations
Both the AL and BNP (and other Bangladeshi political parties) have large auxiliary organisations, including wings for students, volunteers, youth, and professionals (such as doctors, lawyers and labourers).
While the exact size of these organisations is unknown, they are large: local sources estimate that the AL’s student wing, the Bangladesh Chhatra League (BCL), alone has ten million people. The sheer size of the auxiliary organisations means that, in practice, the central leadership of the relevant political party exercises only a limited amount of control over their activities, and the auxiliary organisations maintain a high degree of autonomy.
The auxiliary organisations support the political parties through fundraising and election-related activities. They also play a major role in inter- and intra-party violence (see Politically Motivated Violence (PMV)). DFAT assesses as credible allegations that members of student wings are often party activists rather than genuine students, and that auxiliary organisations are often a front for criminal activities, including violence and extortion. The BCL has effectively controlled public university campuses since 2009, preventing members of other parties’ student wings from undertaking activities and even from sitting examinations. In rural areas, AL members and activists have reportedly extorted business owners affiliated with the BNP, threatening them with violence if they do not comply with demands for money.
In addition to the BCL, key AL auxiliary organisations include the Bangladesh Awami Jubo League (youth wing), the Bangladesh Mahila Awami League (women’s wing), the Awami Swechhashebok League (volunteers’ wing), the Bangladesh Krishok League (farmers’ wing), the Jatiyo Sramik League (workers’/labour wing), and the Awami Ainjibee Parishad (lawyers’ wing). Key BNP auxiliary organisations include the Jatiyatabadi Chhatra Dal (student wing), the Jatiyatabadi Jubo Dal (youth wing), the Bangladesh Jatiyatabadi Mohila Dal (women’s wing), the Bangladesh Jatiyatabadi Krishak Dal (farmers’ wing), the Bangladesh Jatiyatabadi Muktijoddha Dal (freedom fighters’ wing), the Bangladesh Jatiyatabadi Sechchasebak Dal (volunteers’ wing), the Bangladesh Jatiyatabadi Samajik Sangskritik Sangstha (cultural wing), the Bangladesh Jatiyatabadi Sramik Dal (workers’/labour wing), the Bangladesh Jatiyatabadi Tanti Dal (weavers’ wing), the Bangladesh Jatiyatabadi Olama Dal (religious wing), and the Bangladesh Jatiyatabadi Matshayajibi Dal (fishermen’s wing).
Politically Motivated Violence (PMV)
Bangladesh is prone to high levels of politically motivated violence (PMV). PMV manifests regularly in the form of violent clashes between supporters of different factions of the same party (intra-party violence), supporters of rival parties (inter-party violence), and between party supporters and law enforcement agencies. Fatalities and serious injuries resulting from these clashes are common. PMV tends to peak during periods of heightened political unrest, including during elections, strikes, and blockades. It tends to be most prevalent outside Dhaka, particularly in northwest and southeast Bangladesh. According to Ain o Salish Kendra (ASK- a local NGO), 177 people died and more than 11,462 people were injured in 907 separate incidents of PMV in 2016, while 52 people died and 4816 people were injured in 364 incidents of PMV in 2017. In addition to those killed and injured in inter- and intra-party violence, these figures include those killed and injured in election-related violence, strikes, blockades, and clashes with law enforcement agencies.
The January 2014 national elections were the most violent in Bangladesh’s history, with months of PMV (including all of the forms listed above) leaving hundreds dead and thousands injured across the country. The violence resurfaced in January 2015 after the government decided to confine BNP leader Khaleda Zia to her party office in Dhaka on the anniversary of the 2014 polls. Local government and council elections in April 2015, December 2015, and March 2016 were also marred by violence. DFAT assesses that violence is also highly likely to accompany the next national elections in late 2018 or early 2019.
In recent years, the frequency and level of intra-party violence has far outweighed that of inter-party violence, particularly between competing AL factions. In 2015, ASK documented 226 instances of AL intra-party violence (resulting in 33 deaths) and nine instances of intra-party violence involving all other parties (no deaths), as opposed to 30 instances in total of inter-party violence (25 of which were between the AL and BNP) resulting in seven deaths. In 2016, ASK documented 88 instances of AL intra-party violence (resulting in 17 deaths) and 44 instances of intra-party violence for all other parties (resulting in five deaths), compared with 18 instances of inter-party violence (13 of which were between the AL and BNP), resulting in four deaths. Similarly, in 2017 ASK documented 150 instances of AL intra-party violence (resulting in 29 deaths) and 92 instances of intra-party violence for all other parties (resulting in nine deaths), compared with 29 instances of inter-party violence (resulting in 11 deaths).
DFAT understands that intra-party violence between AL factions has been the most common form of PMV largely due to the party’s complete control over state institutions in recent times. Competition between rival factions and candidates (including so-called ‘rebels’, who have contested local elections as independents) for lucrative contracts, tenders and appointments to senior party positions, has superseded ideological differences. This trend may shift in the lead-up to the next national elections should the BNP confirm its participation.[1]
[1] DFAT Country Report – Bangladesh, 2 February 2018, paras 3.51-3.62.
Hearing, credibility, findings and assessment

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognizant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…[but this should not lead to]…an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Bangladesh and accordingly his claims will be assessed against Bangladesh.
The Tribunal has the following credibility concerns with the applicant’s claims, including the genuineness of the documents from authorities he has provided concerning supposed false cases against him.
Firstly, the First Information Report dated 5 July 2014 issued by officers of the [Police] Station contains significant information which undermines its genuineness.
The document refers to eight individuals, including the applicant, being accused of issues including unlawful assembly and rioting during a demonstration that is alleged to have occurred on the morning of 5 July 2014. As indicated in the hearing by the applicant the applicant and those other accused were not detained by police on the day of the event or soon thereafter.
In this context, the Tribunal is concerned that the Report, written on the same day as the events in question, specifically identifies the eight individuals including providing detail in each case as to the name of the accuseds’ father and the accuseds’ addresses and positions in the student wing of the BNP (JCD). As put to the applicant in the hearing, the Tribunal does not find it plausible that such a document could have been produced on the day that the offences were alleged to have taken place with such detailed information relating to each accused person being obtained on the same day as the event itself. The Tribunal also has doubts as to whether the eight specific individuals would have been specifically identified, in the absence of them being detained at the time, and in the context of them being involved in a rally with many other individuals.
In response, the applicant indicated that this was because the police already had on file all of this information relating to each of the accused. The Tribunal does not find this plausible. Whilst the Tribunal is prepared to accept that police may hold records of key individuals involved in the local JCD branches it is not persuaded that it would readily have available to it the detail of information that was provided in the First Information Report such as complete addresses and the identities of the fathers of the accused.
Further, the First Information Report incorrectly refers to the fact that the applicant’s father was deceased in referring to him as ‘late’. However, in the hearing, the applicant indicated that his father did not pass away until around March 2015. In response as to how this document which was supposedly created in July 2014 could have made reference to the applicant’s father having died, the applicant referred to the fact that this may have been in the mind of his lawyer in Bangladesh who obtained his document. As the Tribunal indicated to the applicant, the document was adduced as having been created by police authorities in July 2014 and therefore the state of mind of his lawyer in obtaining the document would not be relevant. The applicant did not provide a meaningful response to this point.
In addition, the Tribunal noted to the applicant in the hearing the ready ability to obtain forged documents in Bangladesh.[2] The applicant agreed with the ability in this respect, but maintained that the First Information Report together with other claimed official documents relating to claimed false cases were genuine.
[2] Numerous documents can be found attesting to the high level of fraudulent documents and corruption in Bangladesh. See for example: Department of Foreign Affairs and Trade (DFAT), 1988, Application for Refugee Status, 26 July (CISNET Bangladesh CX17304);DIMIA Country Information Service, 1996, CIR No.497/96, 7 June (sourced from Former Second Secretary, Australian High Commission, Dhaka – 2 April 1993) (CISNET Bangladesh CX2690); DIMIA Country Information Service, 1996, CIR No. 22/96, 5 January (sourced from DFAT, 24 December 1995) (CISNET Bangladesh CX13160); DIMIA Country Information Service, 1996, CIR No. 1011/96, 18 December (sourced from DFAT, 25 November 1996) (CISNET Bangladesh CX20802); DIMIA Country Information Service, 1998, Bangladesh: Profile of Asylum Claims and Country Conditions, 27 August (sourced from the US Bureau of Democracy, Human Rights and Labor, February 1998) (CISNET Bangladesh CX31417); DIMIA Country Information Service, 1998, CIR No.373/98, 13 October (sourced from DFAT 6 October 1998) (CISNET Bangladesh CX32184); RRT Country Research, 2001, Research Response BGD14766, 21 August; DIMIA Country Information Service, 2003, ‘BD fires 300 policemen after being named most corrupt nation’, 14 October (sourced from 14 October 2003) (CISNET Bangladesh CX85517).
Given these issues as put to the applicant, the Tribunal considers it clear that the First Information Report dated [July] 2014 is not a genuine document. This is in turn undermining of the other claimed official documents relating to claimed charges against the applicant and others.
Secondly, the applicant provided unconvincing evidence to the Tribunal as to why and the circumstances in which he obtained a lawyer in Bangladesh after he came to Australia. The applicant indicated in the hearing that after being in Australia for about two months he approached a lawyer in Bangladesh to find out if authorities in Bangladesh had any adverse interest in him. When the Tribunal questioned the applicant as to why he would have thought this, he claimed that he had considered that he might have been targeted by authorities because of his involvement in the demonstration he attended [in] July 2014. The Tribunal noted to the applicant his earlier evidence in the hearing that he had attended between 30 and 40 different protest rallies during his time in Bangladesh. In that context, the Tribunal wondered why the applicant would have had any concern as to his specific involvement in one rally on one day. The applicant in response indicated that the situation in Bangladesh was more tense at that time.
In the initial discussion of this issue the applicant provided no contemporaneous issue when he was in Australia that caused him to decide to contact a lawyer in Bangladesh from Australia two months after arriving. It was only later in the hearing when the Tribunal revisited the issue that the applicant then indicated that he spoke to a friend in Bangladesh from Australia who told him of the false changes. The fact that the applicant failed to mention this in response to initial questioning causes the Tribunal to question the truth of this claim.
Whilst it is true that the political environment in Bangladesh was tense in 2014, it, as is clear from the independent information, had been previously tense. Political tension and adverse treatment of opposition political members, whether the governing party has been the Awami League or the BNP, has been a feature of the Bangladesh political landscape for some time.
The Tribunal does not think that it makes sense that the applicant would suddenly decide two months after arriving in Australia to make efforts to contact a lawyer in Bangladesh to determine adverse interest by authorities in him, based on a suspicion of him being targeted in a rally that occurred in July 2014, when the applicant made no such attempts immediately after the rally occurred. It is clear from the applicant’s evidence in the hearing that he thought he was at risk soon after the rally.
The Tribunal also does not find that it makes sense as to why the applicant would have thought that he would have been particularly targeted in one rally that occurred on 5 July 2014 as opposed to the scores of other rallies that he attended, and to have suddenly considered two months after arriving in Australia that he might now be the target of authorities. As indicated, the Tribunal does not accept the later evidence by the applicant that he was told from Australia by an individual in Bangladesh that he had been targeted by police for participation in this rally.
Thirdly, the applicant’s claims in the Tribunal hearing that he was of adverse interest to local authorities in [District 1] after he became involved as [an office bearer] of the JCD, [in that location] in around November 2010 is not consistent with the applicant providing as part of his application for his [Temporary visa 1] in Australia, as he acknowledged in the hearing, a local police certificate dated 6 February 2014 indicating that there is no adverse information against him on record.
The applicant agreed with the Tribunal that police are significantly instruments of the Bangladesh Government and would have had an adverse interest in the applicant at least from November 2010 based on his opposition political involvement. He explained him obtaining the police clearance in 2014 by initially indicating that the police clearance was obtained from Dhaka and not his local area. The applicant indicated that local information adverse to the applicant was not available at this level but if investigation had occurred the police clearance would not have been granted. When the Tribunal pointed out that the police clearance was from his local police station the applicant then indicated that it had been obtained through bribery.
The Tribunal is concerned at the fact that the applicant originally indicated that the reason why he obtained a police clearance was because it was issued in Dhaka, not his local area, when the truth of the situation was that it was issued locally. The later claim by the applicant that it was issued through bribery is not credible to the Tribunal given the applicant’s initial evidence that there were other reasons for its issue, namely that it was not issued locally (as in fact it was).
If the applicant had been adversely targeted by local police as having been a prominent activist in the local JCD, as the applicant claims that he was from November 2010, the Tribunal is not persuaded that the applicant would have been given the police clearance in February 2014.
The Tribunal also notes that the applicant indicated that the Bangladeshi Government had provided a letter (dated [March] 2014) indicating his nomination for the Australian visa program as this was based only on his English language test and him being able to establish that he was single. In the context of the aggressive and tribal nature of politics in Bangladesh, the Tribunal has difficulty accepting that an individual such as the applicant who was a claimed key supporter of an arm of the opposition BNP would be supported by the government for the Australian visa program even if administration was centralised in Dhaka.
In this respect, the applicant gave evidence in the interview with the delegate that he was ‘famous’ for his political involvement. In the hearing the applicant downplayed the word ‘famous’ but he was well known politically.
Fourthly, evidence as to the applicant’s engagement with his lawyer from Australia lacked a sense of reality given the claimed charges against him.
The Tribunal asked questions of the applicant in relation to his engagement with his lawyer and instructions that he gave his lawyer in relation to the charges against him. The applicant did not provide significant detail in response. The Tribunal put to the applicant that it would have expected that the applicant would have instructed his lawyer to advise authorities that he was not present in the fresh case that the lawyer had advised the applicant had been issued against him in November/December 2014 (after the applicant had arrived in Australia).
In the hearing, the applicant indicated that he simply relied on his lawyer’s advice that he should not return to Bangladesh. He was able to detail any engagement with the lawyer or police (in terms of the provision of the documents). In response to questions on the hearing, the applicant made no mention that he told his lawyer to tell police that he was not even in the country when the second set of allegations were made at the end of 2014.
The Tribunal considers that does not make sense that if the applicant had the services of a lawyer in Bangladesh that the applicant would not have instructed his lawyer to advise that the applicant was not in the country in relation to the charges that were alleged to have occurred in late 2014. The failure of the applicant to indicate any thought or instructions in this respect is undermining of the claims that the applicant has been subject to the false cases as claimed.
Cumulatively considered, these four credibility issues cause the Tribunal not to be satisfied that the applicant has been specifically targeted by authorities in Bangladesh or that there are false cases that have been lodged against the applicant.
Having said that, the applicant was credible and consistent in claims of having belonged to the student wings when of the BNP from 2001 in branches within the various educational institutions he attended. In November 2010 after which the applicant ended at one university, he became involved in the JCD in the [location] which was not institution specific, but covered a broader geographic area. He provided credible details of his role as [an office bearer].
The applicant provided evidence in the hearing consistent with that given to the delegate in the interview of being physically harmed in one rally in a protest rally that he attended in March 2010. The applicant was hit on the left arm and leg with a hockey stick and had a brick thrown on his back.
The applicant indicated in the hearing that, whilst he has had some involvement with the BNP [State 1] Australia his involvement has been limited. This is because the situation in Australia is so peaceful by comparison and so there is not such a need to be politically involved.
The applicant indicated that on return to Bangladesh he would not continue to be politically active because of the difficulties with the political situation.
The Tribunal has accepted that the applicant was involved politically during his student years. The Tribunal is prepared to accept that there was one occasion in 2010 when the applicant was injured in a rally. That is not inconsistent with independent information concerning what can happen in protests and rallies.
The documentary evidence concerning the applicant’s involvement in the BNP Australia portrayed him having a reasonably significant role in that organisation. This was not reiterated by the applicant in the hearing who downplayed his level of political involvement in the BNP in Australia.
The applicant told the Tribunal that he would not continue to be politically involved on return to Bangladesh. The Tribunal accepts that, at least in part, this is because of the fractious and violent nature of politics in Bangladesh. The Tribunal also considers it is because the applicant does not have the same degree of motivation in his [age bracket deleted] as he did in his student days.
Considering all of the evidence, the Tribunal finds that, if unconstrained by the violence in politics in Bangladesh, that the applicant would maintain some degree of involvement in the BNP. However, the Tribunal is not satisfied that the applicant’s desired involvement would be of a level that would lead to him facing a real chance of serious or significant harm. As indicated, the Tribunal is not satisfied that the applicant is of adverse interest to authorities or that there have been false cases lodged against him. The Tribunal would not otherwise be satisfied that the applicant would wish to engage in the level of political activities that he did during his student years. In particular, the Tribunal would not be satisfied that the applicant has a wish to be involved in protests or rallies such as to lead to a real chance of him facing serious or significant harm based on generalised violence in protests and rallies.
Considering all of the evidence, the Tribunal is not satisfied the the applicant faces a real chance of serious or significant harm for any of the reasons claimed, or for any other reasons.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a refugees criterion reason set out in s.5J(1) of the Act. In relation to the complementary protection criterion, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.
On the Department file is a Certificate and Notification issued under s.438 of the Act certifying that certain documents on the file are not to be disclosed pursuant to various sections of the Act on the basis that the information be contrary to the public interest because it contains information relating to internal working documents and business affairs. The Tribunal is not satisfied that these reasons provide a basis for public interest immunity and therefore the Tribunal considers that the Certificate and Notification is invalid.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
David McCulloch
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 4575

28 September 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice