1605499 (Refugee)

[2017] AATA 1526

1605499 (Refugee) [2017] AATA 1526 (30 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1605499

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Tania Flood

DATE:30 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 30 August 2017 at 3:18pm

CATCHWORDS
Refugee – Protection visa – Bangladesh – Political opinion – Bangladesh National Party activist – Opposition to Awami League Government – Physical violence – Politically-motivated arrests – Fraudulent passport

LEGISLATION
Migration Act 1958, ss 5(1), 36, 65, 91W(1), 424, 438, 499
Migration Regulations 1994 Schedule 2, r 1.12

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Bangladesh, applied for the visas [in] July 2014 and the delegate refused to grant the visas [in] March 2016.

3. The applicants appeared before the Tribunal on 1 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment 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.

   Member of the same family unit

9. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include a spouse. The applicant’s passport lists the second named applicant as his spouse. Tribunal is satisfied, for the purpose of this review that the second named applicant is the spouse of the applicant.

   Material under a public interest non-disclosure certificate

10. The Department file ([number]) which is before the Tribunal for the purpose of this review contains a public interest non-disclosure certificate in respect of s.438(1)(a) related documents. During the hearing the Tribunal disclosed this information to the applicant but noted that the documents which are subject to the certificate all relate to internal working documents and business affairs of the Department. The Tribunal pointed out that no reason has been provided by the Department as to why the disclosure of those documents would be contrary to the public interest. The Tribunal indicated that the certificate may not be valid in so far as it relates to those documents. Further, the Tribunal noted that it would not be considering those documents in the course of the review as it does not consider them to be relevant. The applicant indicated that he understood and made no further comment.

11. Notwithstanding the above, the Tribunal advised the applicant that the Department file ([number]) which is before the Tribunal also contains a public interest non-disclosure certificate in respect of s.438(1)(a) related documents. The Tribunal advised the applicant that certain of the documents which are subject to this certificate again relate to internal working documents and business affairs of the Department including documents relating to his identity assessment which the Tribunal considers is not in dispute. Again the Tribunal advised the applicant that it would not be relying on those documents to make its decision. However, the Tribunal advised the applicant that one document which is subject to the certificate is considered relevant to the review, namely the record of interview of his community status resolution interviews with the Department. The Tribunal pointed out that the certificate appears valid in so far as it relates to this document and the Tribunal advised the applicant that it would discuss this document with him in the course of the hearing. The applicant indicated that he understood this. See below for the Tribunal’s discussion of this information with the applicant in accordance with the provisions at s.424aa of the Act.

12. The issue in this case is whether there is a real chance the applicant will suffer serious harm on return to Bangladesh for reason of his race, religion, nationality, membership of a particular social group or political opinion, or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh there is a real risk he will suffer significant harm.   For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    BACKGROUND TO APPLICATION

13. [In] November 1997 the applicant arrived in Australia using [a Country 1] passport issued in the name of [Alias 1].  In December 1997 he applied for a Protection visa using the name [Applicant’s name] and claiming Bangladeshi nationality.  At that point the applicant claimed he was persecuted in Bangladesh by Awami League members on account of his membership of the Bangladesh Freedom Party.

14. [In] March 1998 a Delegate of the Department refused the application.  On 2 February 2000 the Refugee Review Tribunal (RRT) affirmed the decision.  The applicant subsequently appealed to the Minister who declined to exercise the relevant powers.

15. [In] February 2008 the applicant returned to Bangladesh.  [In] November 2008 he returned to Australia as the holder of a [temporary] visa. 

16. [In] July 2014 the applicant applied for a Protection visa. [In] March 2015 the Department requested that he produce information in relation to his claimed identity, nationality or citizenship under section 91W(1) of the Act. The applicant complied with the request and produced a Bangladesh passport in his claimed name numbered [passport number].

    Summary of claims

17. In his application for a Protection visa which was made [in] July 2014 the applicant claims the following:

18. His name is [name] and he was born in Dhaka, Bangladesh on [date].

19. He left Bangladesh because of his political affiliation with the Bangladesh Nationalist Party (BNP). 

20. Previously he was a leader of the Freedom Party and when he returned to Bangladesh he became very close to the BNP leader [Leader A] who influenced him to join the party.  As his own party, the Freedom Party, no longer existed he joined the BNP.  [Leader A] rewarded him by making him an Executive Member.

21. While in Bangladesh he was interrogated by RAB.  They took him to their office and asked him about [Leader B] with whom he was close.  They also asked him about [Leader A], a leader of the BNP. 

22. He was also targeted by Awami League goons on a number of occasions and they tried to harm him.

23. If he returns to Bangladesh he will be killed by Awami League goons or imprisoned on false charges or he will be subjected to cruelty by RAB and the police. Jubo League and Chatra League activists who are aware of his political involvement will also harm him.

24. Bangladesh is a land of killing fields.  Without trial thousands of people have been killed by RAB and the police. Every day political opponents are being killed or made to disappear by the police and RAB acting on directions of the government.  Life is not secure in Bangladesh and the government authorities do not protect citizens.

    TRIBUNAL HEARING

25. On 1 August 2017 the applicants appeared before the Tribunal to give evidence. The second named applicant confirmed she had no claims of her own and is included in the application purely as a member of the same family unit of the applicant.

    Migration history and delayed application for a protection visa

26. At the outset of the hearing the Tribunal discussed the applicant’s migration history with him.  The applicant confirmed that he first arrived to Australia in 1997 using [a Country 1] passport in a false name of [Alias 1].  He said he did this in order to more easily obtain a visa to Australia.  He confirmed he held a Bangladesh passport at the time but that it was easier for [a Country 1] passport holder to secure a visa.

27. At the hearing the Tribunal asked the applicant which passport he used to depart Australia in 2008.  He said that he departed Australia using a passport he obtained in his name from the Bangladesh High Commission in Australia.  When the Tribunal pointed out that the Delegates decision indicates he departed Australia using a passport in the name of [a different Alias] the applicant stated that this is the passport he used to re-enter Australia in 2008.  He said he procured that passport in a false name when he was in Bangladesh.  When asked why he did that the applicant said that he had an opportunity to obtain a [different temporary] visa and he could not wait three years to reapply for a visa in his own name because by that time he would have been [ineligible] for the visa.  The Tribunal asked the applicant whether he is aware it is illegal to obtain travel documents under a false name.  He said he wanted to come back to Australia and he wasn’t knowledgeable about the law and believed what his sponsor told him.  The Tribunal put it to the applicant that it did not believe he wasn’t aware that obtaining and travelling on false documents is not an offence.  The applicant conceded he knew it was illegal.

28. At the hearing the Tribunal asked the applicant when he was granted the visa to return to Australia and he said he could not recall but thinks it was around July or a bit later.  Noting that he arrived back in Australia in November 2008 the Tribunal asked the applicant why in the circumstances he delayed his departure from Bangladesh for several months.  He replied that his [sponsor] told him he was only needed from November.  Nevertheless the Tribunal pointed out that he already had a visa which would enable him to return and he agreed.

29. At the hearing the Tribunal put it to the applicant that based on his oral evidence he willingly obtained [a Country 1] passport in a false name in 1997 just so he could obtain a visa to come to Australia and again willingly procured a passport in a false name in 2008 just so that he could obtain a visa to return to Australia.  The Tribunal put it to the applicant that it appears he did this in full knowledge of the fact it is illegal and with a view to circumventing Australia’s migration laws.  The Tribunal put it to the applicant that his willingness to lie about his identity and commit migration fraud impacts very poorly on his credibility and causes the Tribunal to doubt that the events he claimed occurred in 2008 or even 1997 happened at all.  The Tribunal put it to the applicant that it appears more likely he has fabricated his claims in order to obtain permanent residency in Australia.

30. In response to the above, the applicant stated that he accepts responsibility for his past actions and is very sorry about it.  He said that when a person’s life is threatened he will clutch at any straws even if there is a penalty.  He said he wants a peaceful, decent and secure life.

31. At the hearing the Tribunal also put it to the applicant that it is problematic that he delayed his departure from Bangladesh even though he had secured a visa to return to Australia and that despite returning to Australia in 2008 he delayed applying for a protection visa until 2014 when it appeared all other avenues to remain in Australia had been exhausted and that this appears to undermine his claimed fears for his life in Bangladesh.    The applicant responded that he returned in November 2008 because his sponsor requested him to come at that time.

32. At the hearing, pursuant to the requirements of s.424aa of the Act, the Tribunal put it to the applicant that interview notes from his community resolution assessments held with the Department indicate that from [April] 2014 to [July] 2014, during the course of five separate interviews, the reasons he provided for not wanting to return to Bangladesh never once included a fear of persecution for reason on his political opinion. Rather, the reasons stated for wanting to stay in Australia were that he has been here a long time and considers himself Australian; that he wants to utilise his skills and work in Australia and he knows Sydney better than Dhaka. Only later, in an interview held [in] July 2014 did he state that he had decided to apply for a protection visa. The Tribunal explained to the applicant that this information is relevant because it appears to undermine his claims to fear persecution in Bangladesh for political reasons. The Tribunal explained that if he genuinely feared for his safety in Bangladesh it could be expected he would have mentioned those problems earlier when asked why he could not return home. The Tribunal explained that if it were to rely on the information it may find that his evidence is not credible and reject his claims which may lead to the decision being affirmed. The Tribunal invited the applicant to comment on or respond to the information and advised him that if he needed more time to do so he could make that request and it would be considered. The applicant requested time to respond to the concern in writing.

33. In a letter to the applicant dated 3 August 2017 the Tribunal put the above in writing to the applicant and invited him to comment on or respond to it in writing.  In his letter to the Tribunal dated 17 August 2017 the applicant stated in response to the above that he is and always was a political activist in Bangladesh and his active participation in politics and the current situation in Bangladesh is what compelled him to seek a protection visa.

    Claimed political involvement and past harm

34. At the Tribunal hearing the applicant advised that he last spent any time in Bangladesh in 2008.  He said he stayed at his family home in Dhaka for approximately three weeks before moving to a friends’ house in old Dhaka.  He remained in Bangladesh for a period of approximately eight months before returning to Australia.

35. Noting his claimed membership of the former Bangladesh Freedom Party (BFP), the Tribunal asked the applicant whether he still fears harm in Bangladesh for reason of this political association.  At first he responded that he wasn’t concerned about this because it was only a very small political party and it is now mostly non-existent.  Later he stated that the former members of the BFP are aligned with the Bangladesh Nationalist Party (BNP) and that the Awami League members have stated that anybody formerly involved with the BFP can be killed at any point.

36. When asked about his experiences in 2008, the applicant stated that he was a friend of [Leader B], the former [office bearer] and [Leader A] who was a BNP branch leader in his area.  He said he knew them because they were neighbours in the same sub-division. The applicant stated that because of his association with these people he was attacked repeatedly and became scared for his life.  He said this is why he could not remain living at his family home.   When asked for further details of the claimed attacks he said that once he was accosted by Awami League youth and students when returning from a meeting or a procession and he only just escaped with his life.  He said that on a second occasion he encountered a bigger crowd of people and he was subjected to physical blows but managed to escape relatively unharmed.  Afterward he moved to his friends’ house and kept a low profile.  He avoided any further problems with Awami League people.

37. During the hearing the Tribunal put it to the applicant that he only spent eight months in Bangladesh in 2008 and with the exception of just three weeks, he claims most of this time was spent effectively in hiding.  The Tribunal put it to the applicant that it was having difficulty accepting he would have encountered so much trouble from Awami League members due to his political profile just three weeks after returning to Bangladesh after an absence from the country of eleven years.  The Tribunal stated that it was having difficulty accepting the applicant would have been a person of any interest to the Awami League at that time.  The applicant responded that the Awami League carries lifelong vendettas against BFP members. 

38. The Tribunal asked the applicant whether the problems he encountered with the Awami League is the reason he fears returning to Bangladesh and he said it was.  When asked if he had any other reason to fear returning to Bangladesh he said no.  When the Tribunal pointed out that his written claims indicate he experienced further problems in Bangladesh he then said that he was involved in another incident involving the Rapid Action Battalion (RAB).

1. At the hearing the applicant stated that in about June or July 2008 he went to visit a friend’s brother in the hospital.  He said that at the time RAB officers were conducting routine work, asking for people’s names and addresses.  He said that when he and three other people left the hospital the RAB officers became suspicious and they got caught up in the routine check.  He said that all four of them were put into the RAB van.  After some cross-checking the RAB officers found out he was associated with leaders of the BNP and he was taken to an unknown place and questioned.  The Tribunal asked the applicant what happened to the other three persons detained by RAB at the hospital.  He said that the other three persons were handed over to the police whereas he was taken away by the RAB officers.

2. The Tribunal asked the applicant what took place at the unknown location and he said he was questioned about the BNP leaders but was unable to give them any concrete details.  He said that when they found his Australian drivers licence they thought he might be Australian and he thinks this is the only reason he was let go alive.  During questioning he said he wasn’t given any hard treatment, although he was slapped around a bit.  He said he was held by the RAB officers for approximately forty-five minutes to an hour.

3. The Tribunal asked the applicant whether anything further happened to him before his departure from Bangladesh and he said it did not because he took extra care and remained indoors most of the time.  When asked what has become of [Leader B] and [Leader A] he said that as far as he knows they are still in Bangladesh living in hiding.  He said they have charges pending against them and sometimes they appear in court.  At other times they are in hiding carrying out their activities.

4. During the hearing the Tribunal put it to the applicant that his evidence suggests the RAB officers were not interested in him personally but in information he could supply about other persons of interest.  The applicant agreed that after cross-checking his details the RAB officers found out he was connected to BNP leaders and that it was he was taken away by them.

5. At the hearing, pursuant to the requirements of s.424aa of the Act, the Tribunal put it to the applicant that the audio recording of his interview with the Delegate indicates he said he was picked up by RAB officers outside the hospital when he and a friend exited the hospital; that his friend was not detained at all; that he was only verbally tortured by the RAB officers and that he was detained by the RAB officers for five hours. The Tribunal explained that this information is relevant because it is inconsistent with his oral evidence to the Tribunal, namely that he and three other people were detained outside the hospital; that the other three people were handed over to the police while he was questioned by the RAB officers; that he was held by the RAB officers for forty-five minutes to an hour and that he was physically slapped around during that time. The Tribunal stated that if it was to rely on that information it may find that his evidence is not credible and reject his claims which may lead to the decision being affirmed. The Tribunal invited the applicant to comment on, or respond to the information at hearing and advised him that he could request more time to do so if needed and that the request would be considered.

6. The applicant opted to respond initially to the above concerns and said that he had earlier told the Tribunal that it is possible there was probably an error in what he said from his interview with the Delegate to his interview with the Tribunal.  He said that he had told the Delegate he was detained for five hours but only questioned for about forty-five minutes to an hour.  He said if that was not clear he would be willing to clear it up in writing after the hearing.  The Tribunal agreed that the applicant could address its concerns in writing after the hearing and agreed to put this and other concerns to the applicant in writing at the end of the hearing.   On 3 August 2017 the Tribunal wrote to the applicant pursuant to s.424A of the Act asking him to comment on or respond to the information in writing.  On 17 August 2017 the applicant responded in writing to the Tribunal stating that he did not provide a complete version of events to the Delegate.  He said he provided an extended version of events to the Tribunal.  He said that though other people were taken by the RAB this was a separate scenario to his incident.  He reiterated that he was questioned for about forty-five minutes to an hour and said he physically tortured and remained in their hands for about five hours.

   FINDINGS AND REASONS

   Country of reference

7. At the Tribunal hearing, and in meetings with the Department, the applicant has provided evidence of his current passport.  The passport was issued by the Bangladesh High Commission in Canberra and confirms his claimed identity and nationality.  The Tribunal is satisfied, for the purpose of this review, that the applicant is a national of Bangladesh and has assessed his claims against Bangladesh.

   Credibility

8. As can be seen from the above, the Tribunal had concerns that the applicant’s oral evidence about key aspects of his claims was different to the information he had provided to the Delegate.  The Tribunal also had concerns about the applicant’s migration history, including his use of false identities and travel documents.  Having considered all the available evidence, including the applicant’s oral and written responses, the Tribunal remains unconvinced that the applicant is a reliable witness.   The Tribunal is not satisfied the applicant has told the Tribunal the truth in relation to critical aspects of his claims. 

9. In forming the above view the Tribunal has placed much weight on the applicant’s willingness to procure false travel documents and provide false documentation to the Australian government on more than one occasion.  Furthermore, the information before the Tribunal indicates that the applicant delayed his departure from  Bangladesh for several months after obtaining a visa, albeit in a false identity, despite claiming to have been living in hiding for months in Bangladesh due to fears for his safety.  Additionally, despite claiming to fear for his life in Bangladesh the applicant waited six years before applying for a Protection visa despite being well aware of his rights to do so having previously been through the process once before.   The Tribunal considers these actions reflect very poorly on the applicant’s credibility and cause the Tribunal to doubt his claims. 

10. In addition to the above, the Tribunal makes the following additional observations and findings.

11. In 1997 the applicant claimed he was previously a leader of the BFP and was persecuted by the Awami League for this reason.    According to a publication of the Research Directorate of the Immigration and Refugee Board of Canada[1] the Freedom Party is described as “non-parliamentary” (independent 18 June 2001) and “nearly defunct” (United News of Bangladesh 19 June 2001.  No information on the treatment of members of the Freedom Party was found among the sources consulted by the Research Directorate. This information is in accordance with the applicant’s oral evidence that the BFP is a very small political party which is now mostly non-existent. 

    [1] Bangladesh: The Freedom Party: Origins, objectives and treatment of members (1995-2002)

12. From 1997 to the present the applicant has spent a total of eight months in Bangladesh.    Even if the applicant had been a leader of the BFP twenty years or more ago, which the Tribunal seriously doubts, given the current state of the party, together with the applicant’s long absence from the country, the Tribunal finds it highly unlikely he was or would be of interest to members of the Awami League for this reason.  The Tribunal finds the chance the applicant will suffer serious harm in Bangladesh for reason of his former membership of the BFP to be remote.

13. The applicant claims that on return to Bangladesh in 2008 he joined the BNP and assumed an executive member role in the organisation.  On two occasions, when returning from meetings and processions in 2008 he claims he was harassed and physically assaulted by Awami League “goons”. At the Tribunal hearing the applicant indicated that these events occurred within the first three weeks of his arrival in Bangladesh and caused him to effectively go into hiding for the remainder of his time in Bangladesh.  He claims it was due to his former membership of the BFP, which the Tribunal rejects.  He also claimed that his association with prominent BNP leaders also placed him at risk of harm from the Awami League. 

14. Having considered the applicants evidence and taking into account  the serious concerns outlined above about the applicant’s credibility, the Tribunal finds it highly improbable the applicant established or rekindled personal relationships with prominent BNP leaders, was persuaded to join the BNP, assumed an executive member role in the BNP and drew attention to himself through his political activities, such that he would be harassed and physically assaulted by Awami League members within the first three weeks of his arrival in the country.  The Tribunal has placed weight on the fact the applicant was absent from the country for eleven years and had not seen his family for this length of time.   On his own evidence he was unfamiliar with conditions in Dhaka and no longer knew his way around.  In the circumstances, the Tribunal considers the applicant would have needed time to resettle, reacquaint himself with family and familiarise himself with Dhaka including the various political and administrative systems.  The Tribunal does not find it plausible that within such a short space of time he was able to do all this as well as join a new political party, take up an executive member position in the party and assume a level of political activity which drew the adverse attention of political opponents and led to him being personally targeted and attacked on two separate occasions.    The Tribunal does not accept these claims.

15. The Tribunal is also particularly concerned about the veracity of the applicant’s evidence regarding his claimed encounter with RAB officers in 2008.  The Tribunal has considered the applicant’s written response to concerns put to him at hearing and in writing about the inconsistency of the evidence he gave to the Delegate and the Tribunal but remains unconvinced that the applicant’s evidence can be relied upon.  The applicant told the Delegate that he exited the hospital with his friend, that they were approached by RAB officers, that nothing happened to his friend but he was detained and taken away for questioning.  Before the Tribunal he stated that he and three other people were detained by RAB as they exited the hospital, that the three other people were handed over to the police and he was taken away by the RAB officers to an unknown location.  The Tribunal does not accept the explanation that his reference to three other people being detained related to a separate scenario.  The Tribunal does not find it convincing the applicant would have made reference to the circumstances of these unrelated persons yet omit to mention that his friend, in whose company he was at the time, was not stopped by the RAB officers as discussed with the Delegate.

16. Also, the applicant informed the Delegate that he was only “verbally harassed” by the RAB officers on that occasion.  During the hearing he said he was not given such hard treatment although he was “slapped around” by the officers during questioning.  In his letter to the Tribunal dated 17 August 2017 the applicant states that he was “physically tortured” by the RAB officers.  In the Tribunal’s view the applicant has now provided three differing accounts of what transpired when he was detained by RAB officers.   Further, the Tribunal does not accept the applicant’s explanation as to why he told the Delegate he was held for five hours by RAB officers whereas he initially indicated to the Tribunal he was held for forty-five minutes to an hour.  It was only after the Tribunal pointed out this inconsistency that the applicant corrected his evidence and said he was questioned for that amount of time but actually detained for five hours.  The Tribunal is of the view that if the applicant was held against his will in a threatening situation for five hours he would have made this clear to the Tribunal when first asked the question.

17. The applicant’s inconsistent and changing evidence in relation to his claimed detention and interrogation by RAB officers leads the Tribunal to conclude that this event did not occur as claimed.  The Tribunal does not accept the applicant was detained, questioned about the whereabouts of BNP leaders or physically assaulted by RAB officers in 2008.

18. The Tribunal does not accept the applicant joined the BNP or engaged in any political activity when he returned to Bangladesh in 2008.  It is not claimed and nor is there any information before the Tribunal to support that the applicant has been involved with any political party during the many years he has resided in Australia.  The Tribunal has no reason to conclude he will assume any political involvement on return to Bangladesh which would place him at risk of serious harm.  In this respect, the Tribunal has given weight to the fact the applicant was repeatedly asked by an officer of the Department his reasons for not wanting to return to Bangladesh on several occasions in 2014 and never once stated he was, is or would become involved in political activity which is likely to cause him harm on return.   The Tribunal does not accept the applicant will be at risk of serious harm, including imprisonment on false charges, on return to Bangladesh from Awami League members, Jubo League and/or Chatra League activists or from RAB or the police for reason of any past or future political involvement with opposition parties.

19. Having considered the applicant’s claims individually and cumulatively the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm on return to Bangladesh for reason of his political opinion or for any other Convention related reason. Accordingly, the Tribunal finds the applicant does not have a well-founded fear of persecution in Bangladesh, now or in the reasonably foreseeable future. 

20. For the reasons given above the Tribunal is satisfied that the applicant is not a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.

21. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa) of the Act. For the same reasons already articulated, the Tribunal does not accept the applicant will be at risk of any harm in Bangladesh which would amount to significant harm on account of his past or future political affiliations.

22. The Tribunal acknowledges the applicant’s claims that he has been in Australia a long time and knows Sydney better than he knows Dhaka.  However, on the applicant’s oral evidence he has family in Bangladesh, including his mother and his in-laws and a family home in Dhaka.  Despite not living in the country for many years he nevertheless speaks Bengali and spent eight months in Dhaka in 2008 whereupon on his own evidence he was able to navigate administrative tasks in preparation for his return to Australia.  The Tribunal considers the applicant has the ability to return to Bangladesh and reside with family and that this will afford him the security he needs to re-establish a life for himself and his family in Bangladesh. 

23. As to the applicant’s claim that life is generally not secure in Bangladesh and the government authorities do not protect citizens, the Tribunal accepts that the general security situation in Bangladesh is affected by politically motivated violence at times of heightened unrest and because of the rise of Islamist militancy in recent years.[2]  However, the Tribunal considers that these claims have to be seen in the context that Bangladesh is a country which covers an areas of approximately 150,000 square kilometres and with a population of approximately 166 million people.  Also, there is nothing before the Tribunal which satisfies it that the applicant has a profile which is likely to heighten the risk of him being targeted and harmed in such circumstances.  I find that any risk of the applicant being significantly harmed on account of the general security situation in the country to be below the level of a real risk. 

    [2] DFAT Country Information Report, Bangladesh, 5 July 2016

24. The applicant has not claimed he will be at risk of significant harm for any other reasons.

25. The Tribunal is satisfied that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh that there is a real risk he will suffer significant harm for the reasons claimed or for any other reason. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

26. As the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) of the Act for a protection visa it follows that none of the applicants is a person in respect of whom Australia has protection obligations. They are also unable to satisfy the criterion set out in s.36(2)(b) or (c) of the Act. As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

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

    Tania Flood
    Member