1605073 (Refugee)

1605073 (Refugee) [2018] AATA 5533 (11 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1605073
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Luke Hardy
DATE:11 December 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 11 December 2018 at 11:56am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh Nationalist Party Awami League – applicant fears persecution based on political involvement – credibility issues – inconsistent and far-fetched evidence – no real risk of serious harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 438, 499
Migration Regulations 1994 (Cth) Schedule 2
CASES
MZAFZ v MIBP [2016] FCA 1081
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 18 March 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, Mr [A] and Ms [B] are a married couple and citizens of Bangladesh. They first arrived in Australia [in] November 2012 on [temporary] visas. They did not seek protection in Australia before departing again on [in] December 2012. Their passports, submitted to the former Immigration Department, show that they re-entered and resided in Bangladesh. They next arrived in Australia [in] May 2015 on [temporary] visas. They lodged a protection visa application on 27 July 2015, just prior to the expiry of their [temporary] visas. The delegate refused to grant the visas on 18 March 2016. The applicants sought review by this Tribunal.
A hearing was scheduled for 15 August 2018, but had to be adjourned after commencement due to illness on the part of the presiding Member. The hearing resumed on 19 September 2018 with both applicants and their adviser present. The hearing was facilitated by an interpreter in the Bengali-English medium.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her 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 he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (“the complementary protection criterion”). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether either or both of the applicants are entitled to protection in Australia on refugee grounds or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department
In their original protection visa application form, the applicants claimed to have lived at various addresses in Dhaka until moving to an address they called their current one in 2011. Mr [A] claimed to have been educated to [a certain] level. He claimed he worked for the same employer from 1997 through to 2015 when he last arrived in Australia. Ms [B] is educated to [a specific] level and also worked with a single employer from 1997 through to 2015. Both applicants were refused visas for [Country 1] in January 2015. They have no children. They identified parents, siblings and in-laws currently living in Bangladesh.
Ms [B] made no claims of her own in her protection visa application form. In his, Mr [A] referred the Department to a statement but also made a few claims in response to formal questions. Without saying what he feared, he claimed he could not obtain help from state authorities because they are influenced by the Bangladesh government which, I note, currently under the Awami League (AL). he said he could not relocate within Bangladesh because it is as small as Tasmania and because he cannot survive there without a job.
In his longer (four-page) statement, Mr [A] claimed to have joined the student wing of the Bangladesh Nationalist Party (BNP) from the time he was at college. He claimed he became [an official] of the student wing at the university where he studied for his [degree]. He said this was around 1990 while dictator Gen. Ershad was being ousted. Mr [A] accredited BNP leader Ziaur Rahman with the re-establishment of democracy at the time. Mr [A] claimed he gave time to his local BNP candidate’s campaign ahead of the 1996 general elections, which the BNP did not win. He noted that the AL stayed in power for about five years and that the BNP won in 2001.
Mr [A] claimed that some “miscreants” invaded his flat on [in] February 2003 while he was out at prayer. He claimed that “when they did not find me” they blindfolded his wife and [sibling] and stole their ornaments and money, and vandalised a computer and other equipment. He claimed they also disconnected his landline telephone and stole two mobile ‘phones. He said that after looting all the valuables in his flat, they killed his next door neighbour as they left the building. He provided [evidence] [of] the break-in, assault, robbery and killing. In his statement to the Department, he said this happened because the “miscreants”, part of a number of criminals had been let out of jail from time to time due to political changes, had come after him.
Supposing that the group of “miscreants” who robbed Mr [A]’s home and killed his neighbour had been released from jail as part of a plot to attack opponents of the Al like himself, it was not clear to me, on reading his statement, how and why any of this would have happened under the rule of Mr [A]’s preferred party, the BNP, with the AL arguably powerless to have its cronies released from jail, or why the attack on Mr [A], personally, he claimed, was scheduled for a Friday when it is commonly understood in Bangladesh that the men of the household are absent for prayer.
I have no difficulty that the break-in and robbery that led to the killing of Mr [A]’s neighbour occurred. It appears to have been [described], even in the BNP’s heyday, as it were, as having been purely a mercenary criminal venture that went wrong after the neighbour witnessed what was happening.
Mr [A] claims to have continued helping out in subsequent general election campaigns without suffering potentially relevant harm or harassment.
Mr [A] claimed the next potentially relevant incident occurred in late 2012. He claimed he was driving towards his office when “some Awami League local leaders” barricaded his car and vandalised it before beating him with sticks and leaving him by the road. He claimed some locals took him to hospital. He claimed he later went to a local police station to report the attack only to be sworn at by the police. Given that Mr [A] was in Australia from [November] 2012 to [December] 2012, and given how little of 2012 was left after his return, it appears Mr [A] is talking about a time prior to [November] 2012.
Mr [A] went on to claim vaguely that there were attempts to attack him in 2013 and 2014 and that a false charge had been lodged with police at some stage. He said his situation became so unbearable that he applied for his latest [temporary] visa so he could escape to Australia. I note the visa was granted on 5 November 2014.; Mr [A] did not use it for travel for a further six months, and thus it is not apparent from its use that Mr [A] exploited the visa to effect urgent departure from Bangladesh. However, Mr [A] claimed that once he had his visa he got out of Bangladesh by bribing an officer at the airport; in this way he explained how he was able to leave Bangladesh ostensibly under the eye of the authorities he claimed to fear. He claimed that were he to return to Bangladesh he would be persecuted for having filed a complaint against the AL “miscreant[s]”, although he does not claim ever to have managed to file any such case, the police having allegedly rejected his attempt to do so. He claimed he also feared being wrongly prosecuted on the false charges filed against him dur to his being affiliated with the BNP.
Ms [B] made no claims of her own; however, she is obviously included in the claims about the 2003 break-in.
In February 2016, Mr [A] submitted some documents to the Department. One of these is a translated [document] about the 2003 break-in and killing. Another is a photocopy of a purported 9 January 2016 reference letter, To Whom It May Concern, from a purported office secretary of the BNP in Dhaka, referring to Mr [A] as a BNP “leading activist”. The letter says he “made a significant contribution [to] the BNP” but does not describe the latter in any detail. The letter also says Mr [A] was targeted by the AL and implicated him in false charges. Oddly, the letter says he is in danger due to being a “plaintiff” in a murder case. It is not plainly comprehensible how, in the claimed circumstances, he could have been a “plaintiff” or even a witness in the matter of the killing of his neighbour, there being no other killing claimed in this case. The letter says that Mr [A] is “known politically” to its author, whatever that means; it goes on to devote several lines of text to giving an account of Mr [A]’s professional career but provides no detail about his purported activism with the BNP.
Mr [A] also submitted photocopies of a purported “First Information Report” and various police remarks all dated on or around [February] 2003, their translations showing that they all relate entirely to the break-in and killing witnessed by Ms [B]. None of the reports even speculate that the AL or any political initiative might have been involved: the perpetrators are simply referred to by Mr [A], and by others reporting the incident, as “dacoits”, dacoit being a vernacular word for “armed robber” or “armed bandit”[1].
[1]
Evidence to the delegate
For the purposes of this review, Mr [A] submitted a copy of the delegate’s protection visa decision record, which contains an uncontested written summary of his oral evidence at interview on 6 January 2016.
At his protection visa interview, Mr [A] said he had previously erred in saying that he was attacked in his car at the end of 2012; he said he had meant to say that this had happened in 2013.
Having regard to claims about international travel, the delegate put to Mr [A] that the number of trips he had made abroad since 2003 for the stated purposes of leisure had the potential of undermining his claims about fearing harm into Bangladesh. Seeming not to address this observation on its point, Mr [A] said he had made these trips abroad to relieve tension due to a severe security situation there. The delegate asked Mr [A] why he had not lodged a protection visa application during his first visit to Australia and he reportedly said that at that time he did not feel his life was insecure. The Delegate put him on notice that this response appeared to contradict his explanation for all the trips he made out of Bangladesh between 2003 and 2012.
The delegate put Mr [A] on notice of there being no satisfactory evidence of the 2003 incident having involved politics on any level or in any way at all.
At the delegate’s interview, Mr [A] claimed never to have met the author of the BNP reference letter. The delegate gave no weight to this letter and made observations in his decision as to the paucity of evidence of Mr [A]’s involvement in the BNP in Bangladesh, notwithstanding his ability to provide lots of evidence of his professional background in [a certain field] and related industries. Asked if he would be able to provide any more evidence of his involvement in Bangladesh with the BNP, Mr [A] reportedly told the delegate he would not.
The delegate raised the issue of Mr [A]’s arguably long-delayed departure from Bangladesh in 2015 considering the danger he said he faced the longer he stayed there. In response, Mr [A] evidently said he had not been able to give up his job so quickly and also needed more money. In addition he said that he was thinking at the time that if he possibly could stay on in Bangladesh he would do. This struck me, on reading it, as an odd claim to make about the weeks following Mr [A] concluding that he could not survive in Bangladesh and taking action to get himself and his wife away He went on to say he stayed also because his parents were unwell at the time. The delegate was not satisfied with any of these explanations in light of the claimed circumstances in 2014-5.
The delegate referred to a lengthy professional CV for Mr [A] that was located, apparently by the Department, on a jobs website in the course of an Internet search. I have not drawn any inferences from the existence of this CV one way or another, except to note that it is generally consistent with information provided by Mr [A] himself in his protection visa application form. I certainly have not drawn any negative inferences from the contents of that CV, which appears at [number] of the Department’s file.
Non-disclosure certificate
The applicants’ Immigration Department file contains a certificate referring to specifically itemised documents that were made subject to s.438(1) non-disclosure directions. The documents in question appear at [numbers] of that file and are described in the certificate as relating to an internal working document and business affairs.” The documents go, at [number], to verifying the applicants’ identities which, I accept and find, are not in doubt. The document at [number], seemingly self-reflexively, is merely an incomplete or subsequently replaced “Disclosure Decision Checklist” citing no non-disclosable material; it therefore refers to nothing potentially substantive in this case at all. Since both of the documents subject to the s.438(1) directions are Immigration Department internal working documents, the intended s.438(1) certificate is invalid[2]. I nevertheless referred to these documents and to the invalid certificate at the hearing expressly noting that I did not have any questions about the applicants’ identity in any event. I invited comments; the applicants did not provide any. The whole certification and non-disclosure process is irrelevant in this particular case.
[2] MZAFZ v MIBP [2016] FCA 1081; 243 FCR 1; 155 ALD 98
Evidence to the Tribunal
Mr [A] re-submitted material relating to the 2003 episode. He also submitted a recording [containing the information] about the same. He submitted photographs of police beating some civilians, apparently in the context of claims about attacks by government proxies on journalists and high profile bloggers in Bangladesh in recent years.
Mr [A] also submitted a [August] 2018 letter from the “[Senior Official]” of the BNP’s Australian chapter. The letter refers to Mr [A] as being personally known to the author. The letter states that the BNP’s Australian chapter is involved in fostering “Bengali culture within the mainstream community of Bengali native speakers in Australia.” The letter states that Mr [A] participated in mass rallies in Bangladesh to protest torture and other practise used by the AL to suppress opposition. The letter goes on to say, “To the best of my knowledge [Mr [A]] has suffered severe violent acts by the ruling party activists and I also believe if he returns back to Bangladesh his life could be in jeopardy like other members of the opposition party.” He is elsewhere described in the letter as a “sincere [Occupation 1]”.
Mr [A] submitted four photographs of himself standing and sitting with groups of about a dozen or more males in meeting rooms decorated with banners pertinent to the BNP’s Australian chapter. One of the photographs features a cake and a title stating that the group is gathered for [a member’s] birthday. The other three photographs appear to be arguably small-scale celebrations of the group’s 40^th anniversary.
As noted the hearing was held on 19 September 2018. Ms [B] indicated that she did not wish to give evidence. I take this to mean that she was relying on her husband’s claims.
At the hearing, Mr [A] said he used to provide [services] to the poor in Bangladesh on behalf of the BNP. I put to him that his activities as described did not seem to involve political activism, and he said he sometimes performed his services alongside actual activists and BNP leaders, when he was not performing them alone. I asked him if he had any evidence of those specific activities and he said he did not.
Mr [A] described his highest level of involvement in the BNP back in Dhaka: he said he was an “executive member” of [a specific] branch of the BNP. He described the thana as a division of a seat. He said there were [a number of] wars in his local seat, but was vague as to how many thana it comprised, even though he claimed to have operated at the thana level. I asked him what an “executive” member did at the thana level, and he said his duty was to assist in implementing decision by the executive committee. Asked for details, he gave an example of purely internal activities such as arranging to receive guest speakers at internal meetings. He said he could not recall other kinds of activities apart, say, from organising what banners supporters took to rallies. Having said he was under the authorities of the executive committee, Mr [A] then said he was in fact a member of that committee. I asked him how many other members had the same title as he did and he first said he could not remember and then said there were [a number of] committee members in his thana branch of whom [a number] were executive members. I asked him why executive members outnumbered ordinary committee members by three to one and he said this was the structure set out by the party. I asked Mr [A] what the other executive members were doing now: according to his evidence these seemed to be people with profiles similar to his own. In reply, he said he did not know because he had not been in contact. This response is not consistent with the evidence of Mr [A] having contacted his party back in Dhaka for the reference letter from the purported office secretary.

In any event, I asked Mr [A] why he had not been in contact with his former fellow BNP executive members in Bangladesh and he said it was because he is now involved with the BNP in Australia. I put to him that it did not seem logical just to abandon contact with comrades back home given that his original claims relate to what happened while he worked with them there. I put to him that it sounded as though he were not interested in how his party colleagues had been surviving. In reply, he said he talks to his family. I put to him that people usually stay in touch with their families whilst abroad, if for no other reason than from fear of being scolded. I put to him that it was hard to see whether his claimed treatment in Bangladesh was consistent with or distinct from the treatment, say, of the other [number of] executive members of his thana branch. Mr [A] then said that he had contacted his family who had then contacted his friends who had told them that his colleagues were in a difficult situation. He said his fellow executive members were being repressed.
Mr [A] could easily have given me this information when I asked him what was happening these days to his colleagues, but when I asked him he said he did not know because of a lack of contact. Now he was saying he did know and even described the method of contact through which he had ascertained what he now claimed to know. On the evidence before me, he appeared to improvising his evidence about the other members of his thana branch.
I asked Mr [A] if he could provide any evidence of his role in the BNP in Bangladesh and he referred me to the office secretary’s reference letter. I put to him the delegate had been concerned as to the authenticity of that letter due to the reported ease with which falsified documents can be obtained in Bangladesh and due to the letter being written long after the facts it described by someone he appeared never to have known or met. I asked him if he had been able to gather any contemporaneous evidence of his role and activities in the BNP, such as might exist when a governing committee assigns tasks to its members. In reply, Mr [A] said he sued to have such evidence but was unable to bring it because, when he left Bangladesh, things were tense. I asked him if he could not have made alternative arrangements to have evidence sent here and he said, vaguely, that he had tried without success. I asked him for more detail and he said he had asked his relatives. I put to him that, according to his evidence, his own committee would have been much more the appropriate source to contact for evidence of his involvement, and he did not rely. I put to him that this would have been direct, cutting out the inexpert “middle man” as it were. He did not respond.
I asked Mr [A] for more detail about the alleged incident in which his car was stopped and he was beaten. In the course of giving his evidence, he suggested albeit vaguely that it happened in October or November 2013. He confirmed the police made no record of his attempt to complain about the episode. Perhaps more significantly, in his evidence to me, he was not very clear or consistent as to how and why he discerned his attackers to be AL activists. When he said he had seen them at AL meetings I questioned how he could have been privy to such occasions and he said he might have seen them having a meeting in a hotel restaurant while he was looking for somewhere to eat. I asked him how he knew that what he saw was a political meeting and he said it could have been some kind of informal gathering. Eventually he said he thought his attackers were agents of the AL because he had somehow, somewhere seen them in the company of AL leaders. His evidence here, seemingly based on vagary and speculation did not strike me as being satisfactory. It is hard to conceive that he would have gone to the police and described the attack, first up, as a political one.
I asked Mr [A] about the alleged false case against him which, in earlier evidence involved the police trying to repress him over his attempt to lodge a report against the Al in 2013 (or as previously claimed, in 2012). Here he became vague: he said the only action the police took against him was to refuse to file any complaint from him. I repeatedly tried to prompt him to discuss the false case lodged against him, reminding him of earlier claims about action taken against him after he went to the police, and he repeatedly referred me back to 2003 when, he claimed, the AL came to his house and wanted to assault him. I then repeatedly asked him to talk about the things that allegedly happened to him in 2013 rather than back in 2003. All he mentioned was a new, hitherto undisclosed claim about telephone threats. I put to him that this was a new claim, and he said he had difficulties he tried to overcome. Again, he did not even remotely suggest that a false case had been lodged against him, so I asked him for more examples of difficulties placed in his way after the attack on him in his car. In reply, he said that his parents are getting old and that he was trying his best to stay here in the hope of being able to support them better. I put to him that this motivation for staying in Australia appeared to be totally irrelevant to the question of whether he warranted international protection. I put to him that if he could not resolve this claim about having been made the subject of false charges in Bangladesh, it might be difficult to accept other claims in this matter. He then said that there was a false case lodged against him due to his involvement in politics. I asked him why he had been so blank and digressive when, just a few minutes earlier, I had asked him to talk about the alleged false case that had been lodged against him, and he said he had thought at that moment that my question had been about the moment when he was attacked in his car. Overall, this did not strike me as being a satisfactory explanation for Mr [A]’s failure to discuss the alleged false case against him when I referred him to his own earlier claims about it.
I asked Mr [A] how and when he found out that false charges against had been filed with the police. In reply he said he found out from his political colleagues in 2014; this would have been when he was still living and working in Dhaka as usual and, logically, traceable to his own home. I put to Mr [A] that it seemed illogical that his colleagues were informed of the charges before he was, as the case was allegedly against him alone, and he said, “Yes I do agree.” I asked him if there had ever been any warrant or summons served upon him and he said there was not. I then put to him that the claim about not even having seen any contemporaneous documents relevant to the charges caused one to wonder if there had ever been any charges at all.
I asked Mr [A] to describe the content of the false charges, and he said he had been charged with participating in a BNP procession and hartal (or sit-in strike) and blocking traffic. I put to him that these seemed to be very light charges. He then said he had also been charged with setting fire to some cars. I put to him that this was a seemingly significant detail to have omitted until being told by me that the charges he had listed did not seem to be severe. In reply, he said it was a false charge anyway; he acknowledged not initially mentioning the charge about setting cars alight.
I asked Mr [A] to describe his activities with the BNP in Australia. in reply, Mr [A] said he attended the BNP’s 40^th anniversary celebration. He said the chapter discusses “how to have a fair election”. He appeared to describe the chapter as a kind of discussion group. He seemed to suggest that the BNP’s Australian chapter is one and the same with the Bangladeshi community in Australia. He said an Australian government Minister was going to meet with the chapter or the community in September. He said he did not know who the Minister was. I put to him that it seemed unlikely in the Australian polity that a government minister would meet with a political party, whereupon Mr [A] said, “As far as I know, all of us are BNP.”
I have had regard to s.5J(6) of the Act:
(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.
On the basis of the suggestion that it is somehow inevitable that one associate with the BNP in Australia in order to socialise with Bangladeshi compatriots, I am prepared to accept that Mr [A] has a social motivation for affiliating with the BNP Australian chapter. Accordingly, I do not disregard his conduct in associating with the BNP chapter here. However, considering that Mr [A] claims to have been a political activist back in Bangladesh where he worked for the party at great risk to his personal safety, I find that his involvement here is low level and, given the vagueness of some of his evidence, on the fringes of knowledge of the chapter’s program: basically, the evidence shows that he barely does more than turn up for birthdays, group photos and anniversaries.
Returning to the [February] 2003 incident, which Mr [A] says occurred around 1:30pm, I see that Mr [A] claims that all subsequent threats and harm arose from the politically-motivated action that the home invaders did not complete on that day, and from his effort to bring the AL to justice over the matter. I put to Mr [A] that I had read all the reports and testimonials about the episode and that everything I had read suggested that the victims were merely set upon by robbers. There was no evidence in the complaints or reports that anyone perceived the attackers to be agents or proxies of the AL. The home invaders had been described as “dacoits” and not, say, as AL operatives. I put to him that since the BNP was in power at the time and, by his logic, controlling the police, there would logically have been no reason to fear reporting to the police that the attackers served the AL. I also put to Mr [A] that the time of day on that Friday potentially suggested that the robbers anticipated he would not be home and that they would only be dealing with women, as events in fact fell out on the day, because at and either side of 1:30pm on a Friday, men usually go to the mosque. I posited that the thieves picked a time when they expected he would not be there, making it harder for one to accept that they were intending to harm him and only started vandalising and robbing as an afterthought.
In response, but citing no factual basis, Mr [A] said that the attackers were not merely dacoits but AL cadres. He then asked if he could recount the whole story of the day from the beginning, and I proposed, rather, that he mention any facts so far omitted, since several consistent narratives of the events of the day are already on file.
Mr [A] said that the people who invaded his house are still free as the matter is still unresolved in the courts. He said they have been threatening to kill him, the threat levels having increased since 2012. I put to him that this suggested he had suffered threats at some level prior to 2012 (when he first came to Australia), whereupon he said he had been threatened only once before 2012. I asked him when he received that threat and he said he could not remember. He said the matter first went to court five to seven years after the home invasion. He said he saw the perpetrators in the court room. He said that the threats against him intensified in 2014 and 2015.
The applicants’ adviser spoke at the end of the hearing. He summarised some of the claims. He said the role of an “executive member” in a BNP branch is to implement directives of the committee. He suggested that Mr [A] had not been inconsistent or improvising in his response to question as to the content of the false claims. He said that false charges are common in Bangladesh. He said he had heard of a case about a political leader who had had ninety false charges made against him. I asked if Mr [A] had ever been formally summonsed in connection with the false charges against him. The adviser said Mr [A] had been summonsed although no document had been received yet because it is not unusual for it to take two to three years for a court to issue a “warrant”. I put to the applicants and adviser that these general observations did not seem particularly helpful since the alleged false charges in this case were said to have been filed around four years ago already.
I was informed at the hearing that the photographs of police violence were not specific in any way to the two applicants, but just an example of general heavy-handedness on the part of the authorities in some matters of confrontation with critics of the government.
The adviser suggested that the revenge the applicants continue to face over the 2003 incident should be considered separately as a complementary protection ground.
Findings in relation to s.36(2)(a) of the Act
The applicants’ claims relate to actual and imputed “political opinion”. Ms [B]’s claims also relate to “membership of a particular social group” in that she is a member of the family of which Mr [A], claiming fear of being persecuted on “political opinion” grounds is a fellow member.
I accept that Mr [A] prefers the BNP to other parties in Bangladesh. His evidence about the work he did for the BNP, including the hand he gave to the party in election campaigns, does not suggest anything more than low-level, internal, administrative work. His suggestion about the AL considering him a target strikes me as being far-fetched on the evidence he provided.
I do not give any weight to the letter Mr [A] obtained from Bangladesh. My reasons are cumulative: the letter’s content is vague, it is not contemporaneous and Mr [A] claims not even to have known the author.
I accept that [in] February 2003 the applicants’ home, in Mr [A]’s absence, was invaded and robbed by dacoits who bound Ms [B] and her sister and robbed and vandalised the place before making an escape that was interrupted by a neighbour who was shot dead. I find that this would have been traumatic for all concerned, including Mr [A] who was not there. I do not accept that the purpose of the invasion was to attack and harm Mr [A] personally, let alone for political reasons. I do not accept, on the evidence before me, that what took place on that day reflected or proceeded from a failure to find Mr [A] at home. I note that the alleged act of destroying a computer instead of stealing it is capable of attracting inferences about a possible political motivation behind the episode, since robbers rob. However, since I disbelieve that this episode was in any way a politically-motivated attack directed at Mr [A] personally, I give no weight to the claim that the computer was vandalised rather than stolen along with other valuables. I am not satisfied that the AL had anything to do with the home invasion. This means that an important integer in Mr [A]’s claims about the AL continuing to harass him falls away. Overall, I am not satisfied that the episode of [day] February 2003 gives rise to a real chance of the applicants suffering serious harm, or being persecuted, in Bangladesh in the reasonably foreseeable future.
On the evidence before me, I do not accept that Mr [A] and Ms [B] faced threats, let alone escalating threats arising from the armed robbery that led to the murder of the neighbour in 2003, let alone that he received them from or on behalf of the AL. I consider the suggestion of such threats to be a disingenuous attempt to characterise the episode as a political one. I find that Mr [A] has been somewhat inconsistent in his description of the threats and pressures he faced prior to his and his wife’s temporary visit to Australia in 2012: on the one hand he claims he was threatened but on the other he was not threatened enough to be afraid, even after what happened [in] February 2003. On the evidence before me, I find that the 2003 incident, though traumatic, receded into the applicants’ past, as evidenced by the number of holidays they took abroad, including to Australia, followed by voluntary and undisturbed return to Bangladesh.
Mr [A] gave me inconsistent evidence about a lack of contact with purported BNP colleagues in Bangladesh to explain why he was and remains unable to obtain evidence supporting his claims regarding close and active involvement with the party. His evidence about how he found out that the authorities had filed false charges is negatively affected by his inconsistent claims about not having continued contact with his purported colleagues in Bangladesh. Mr [A]’s association with the BNP in Australia is not sufficient satisfactory reason for taking so little interest in the wellbeing and fate of purported comrades back home.
I find that Mr [A] gave an unreliable account as to how he was able to identify the gang that allegedly attacked him in his car as being AL operatives. I do not accept that he was attacked, even in part, for political reasons on the occasion claimed. Given how unsatisfactorily Mr [A] has performed as a witness in this matter overall, and given how little he did to move himself away from where he could be located for further harm even though he and his wife had visas for Australia. On the evidence overall, I do not accept that the account of the attack in the car is true.
I find on the inconsistent and far-fetched evidence before me that there is no police report about the attack on the car because the attack did not happen, rather than because the police refused, for political or other reasons, to receive and file a complaint from Mr [A].
I do not accept on the vague and somewhat inconsistent evidence before me that Mr [A] was ever the subject of false charges. I consider his evidence about this far-fetched and fanciful. Whereas Mr [A] struggled to recall the issue of the false charges, I am not satisfied on the evidence before me that he was prevented from providing coherent facts in this matter due to psychological or other conditions beyond his control; rather, I find in his case, that he had simply forgotten having previously made claims about false charged because they were not factual claims based on lived experience.
I give no weight on the evidence before me to the explanations Mr [A] gave for not leaving Bangladesh sooner than he did, when he had visas for himself and his wife back in 2014. I give weight to the fact that his departure is stamped in his passport and thus formally acknowledged as having taken place under the authority of the state. I do not accept, on Mr [A]’s general performance as a witness, that he bribed anyone at the airport to be cleared for departure.
The Department of Foreign Affairs and Trade assessed in 2016 that:
…most returnees, including asylum seekers, are not subjected to adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia.[3]
[3] Department of Foreign Affairs and Trade, DFAT Country Information Report – Bangladesh, 5 July 2016, p.23, CIS38A80121206
I accept that Mr [A] affiliates with the BNP in Australia but find on the evidence before me that his involvement is low level and marginal. I accept that the letter acknowledging this local activity is genuine. However, on Mr [A]’s evidence the chapter is little more than a social club. I give weight to independent evidence to the effect that mere low level involvement in Bangladeshi politics in Australia does not give rise to a real chance of persecution in Bangladesh. I am not satisfied on the evidence before me that Mr [A]’s affiliation with the BNP in Australia that it would give rise to a real chance of the applicants being persecuted in Bangladesh.

I have considered all of the evidence in this case separately and cumulatively. On the evidence before me, I am not satisfied that the applicants face a real chance of being persecuted in Bangladesh in the reasonably foreseeable future for any of the reasons cited in s.5J(1)(a) of the Act. They are not refugees.
For the reasons given above I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person may be entitled to a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that the applicants are nationals of Bangladesh, I find that Bangladesh is the receiving country in the present case.
I find that the applicants’ complementary protection claims are essentially the same claims they have made for a protection visa on refugee grounds. Those claims have failed largely due to Mr [A]’s lack of credibility and due to a failure to meet the real chance test. In view of my findings of fact, all of the applicants’ claims must also fail as complementary protection claims, given that the "real risk" test imposes the same standard as the "real chance" test. Singling out the claimed fear of revenge arising from what ensued in the courts after the [day] February 2003 incident, I have already concluded that I am not satisfied that the episode of [day] February 2003, though I accept it occurred, gives rise to a real chance of the applicants suffering serious harm, or being persecuted, in Bangladesh in the reasonably foreseeable future. I do not accept that the applicants face a real risk of revenge of any kind in Bangladesh.
Thus, on the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, there is a real risk that the applicants will suffer significant harm.
Therefore, I conclude that I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
There is no suggestion that the applicants satisfy s.36(2) on the basis of being members of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, they do not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Luke Hardy
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 5533

11 December 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies