1606399 (Refugee)

[2019] AATA 793

1606399 (Refugee) [2019] AATA 793 (9 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1606399

COUNTRY OF REFERENCE:                 Bangladesh

MEMBER:Paul Millar

DATE:9 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 09 April 2019 at 3:21pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – applicant fears harm from creditors – business owner – credibility issues – inconsistent evidence – no real risk of serious harm – decision under review affirmed        

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424, 499
Migration Regulations 1994 (Cth) Schedule 2





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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 April 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of Bangladesh, applied for the visa on 1 October 2015.[1]  The applicant appeared before the Tribunal on 25 October 2018 to give evidence and present arguments in relation to the issues arising in the review.  The hearing was conducted with the assistance of a Bengali speaking interpreter.  Although the applicant requested the assistance of an interpreter for the hearing, he displayed an English language capacity.  At times, the applicant elected to respond to the Tribunal’s questions before the interpreter had translated them into Bengali.  At other times, he elected to respond to the Tribunal’s questions in English. Although the Tribunal advised the applicant to use the interpreter at all times if he was not fluent in the English language, to the Tribunal’s observation, he understood the Tribunal’s questions and was well able to communicate and participate in the hearing.  The applicant was represented in relation to the review by his registered migration agent. The representative attended the hearing.

   [1] The Tribunal's finding on citizenship is based on the applicant's Bangladesh passport that he produced at the Tribunal hearing.

   RELEVANT LAW

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

3. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

4. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

5. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA.     

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

7. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   FINDINGS

8. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to his evidence to the Department and the Tribunal, the applicant claims protection on the ground that certain individuals, to whom the applicant and a former business associate owe money, seek to harm him.[2]  The Tribunal holds concerns about the applicant’s credibility.  Before discussing those concerns, it is necessary to set out a recitation of the evidence that the applicant gave at the Tribunal hearing as to the grounds on which he claims protection.

   Recitation of evidence at the Tribunal hearing

   Evidence about businesses operated by the applicant

   [2] The applicant’s evidence to the Department and the Tribunal comprises the contents of the protection visa application forms; the applicant’s written statement dated 20 October 2015; the applicant’s evidence at his interview with the delegate for which there is an audio recording on the Department file and to which the Tribunal has listened; the applicant’s written statement dated 23 October 2018 and the applicant’s evidence at the Tribunal hearing.  The Tribunal also had access to the Department file relating to the application made by the applicant for a visitor visa. The contents of this file that are relevant to the grounds on which this review has been determined, have been put to the applicant pursuant to s.424A of the Act, as discussed below in this decision.

9. To the Tribunal, the applicant said that he operated two businesses in Bangladesh, namely,  [(‘business 1’)] and  [(‘business 2’)].  The Tribunal asked the applicant when he started operating business 1.  In response, the applicant said that he started operating the business in 2008 in a market place.  The Tribunal asked the applicant whether the business was still in existence.  In response, the applicant said that in the middle of 2014 the business ceased to operate.  When asked why the business ceased to operate at that time, the applicant said that  [(‘X’)], an associate of his, borrowed money from a ‘big business man’ in that market named  [(‘Z’)].

10. The applicant said that both he and X developed a business relationship with Z who knew that the applicant and X were partners.  When the applicant travelled to [Country 1] for his business, X looked after the applicant’s shop from which he operated business 1.  The applicant used to ‘give’ blank cheques that he had signed.  He said that although he and X were in a business partnership in the beginning they did not have any ‘deeds’ or agreement.  The Tribunal asked the applicant whether Z closed business 1 because X owed him money.  In response, the applicant said that was correct. He said that Z [held a certain position] in the market where business 1 was located and, therefore, was able to order the closure of the business.

11. The Tribunal asked the applicant whether he had anything else to do with business 1 after that.  In response, the applicant said that because Z was [held a certain position], he was influential.  Initially, Z gave the applicant some time to settle the loan taken out by X.  However, the applicant was unable to settle the loan in the time allowed.  Therefore, at the end, the president of the market place committee and ‘everyone’ went against him and that meant that the applicant could not do much with respect to the closure of that business.   To clarify his evidence, the Tribunal again asked the applicant whether he had anything else to do with the business after it was closed by Z in the middle of 2014.  In response, the applicant said that, after that, he could not do anything with that business because he was getting pressure from other sources as well.   When asked what he did with himself after business 1 was closed in the middle of 2014, the applicant said that he had outstanding debts and he collected those from other businesses.  At that time he lived at his father’s home and was supported financially by his father.

12. After the applicant gave that evidence, the Tribunal put to him that, according to copies of pages from his passport, he travelled to [Country 1] in February 2014.[3]  The Tribunal asked the applicant why he travelled to [Country 1] at that time.  In response, the applicant said that he travelled to [Country 1] at that time with Z.  He said that this was because Z introduced him to some buyers for shoes.  The Tribunal put to the applicant that, by that time, Z was one of X’s creditors who was demanding that the applicant repay X’s debt.  In response, the applicant said that was correct. The Tribunal asked the applicant why Z would be travelling to [Country 1] with the applicant at that time.  In response, the applicant said that X had borrowed the amount of [number] lakhs from Z and the applicant handed business 1 to him from which he received [number] lakhs.  The Tribunal reminded the applicant that he had earlier said that business 1 was closed in the middle of 2014.  In response, the applicant said that it was closed in March 2014.

    [3] See folio [number] of the Department file.

13. The Tribunal put to the applicant that it seemed odd that Z would be taking the applicant to [Country 1] to introduce him to buyers, but, at the same time, be closing and taking over the applicant’s shop (as the applicant claimed in his written statement of 23 October 2018).  In response, the applicant said that he did not have any other option in his situation. He said that the people pursuing him at that time in relation to the repayment of debts, were powerful and were trying to take things from him.  The Tribunal reminded the applicant that he had, prior to that point in the hearing, said that his business had collapsed due to the late arrival of goods from [Country 1] in March 2013 (a matter discussed below).  In response, the applicant said that he did not have money nor capital but the shop itself was still running.  He then said that Z offered to stay with him in the business but the applicant thought that, in fact, Z would pressure him more so he declined that offer.

14. To the Tribunal, the applicant said that business 2, a clothing business, began operating in 2004. The applicant continued to work in this business after he opened business 1 in 2008.  He had to close business 2 in 2009 due to a decision of the body responsible for the market where the business operated, that the particular floor where it was located, would be devoted to computer businesses.  The Tribunal asked the applicant whether he operated any other business apart from business 1 and business 2.  In response, the applicant said that he also worked in his father’s business which involved [certain items]. When asked what work he did for that business, the applicant said that he would go to the premises and [undertake specified duties]. He would also bring to that business [items] from a different country and sell them in his father’s shop. He said that he stopped working in his father’s business in 2004 when he asked his father to help him set up business 2.  After that, he never worked in his father’s business again.

Evidence about X’s creditors going to the applicant’s shop to find him

1. To the Tribunal, the applicant said that in 2004, around the time he started operating business 2, he met X who became his business associate.  He said that X borrowed money from different people naming the applicant as a guarantor.  X did not pay back amounts owing under these various loans and the applicant said that this caused him trouble.  The Tribunal asked the applicant when he began to have trouble due to the failure of X to repay his loans.  In response, the applicant initially said that there were one or two cases, his business folded and so he had problems.

2. The Tribunal again asked the applicant when it was that he began to have trouble because of the failure of X to repay his loans.  In response, the applicant said that between the middle to the end of 2012, he found out that X had borrowed money from others.  When asked how he found out, the applicant said that it was a ‘partnership shop’.  He said that X was a business partner and people would come to their shop every few days.  The Tribunal asked the applicant when it was that people started going to his shop to find X.  In response, the applicant said that they started doing that at the beginning of 2013. 

3. The Tribunal asked the applicant whether, when these people came to his shop to locate X, they ever caused him trouble or problems.  In response, the applicant said that when they initially came they just said that they were looking for X but did not ask the applicant anything. He said that, subsequently, when they saw him they blamed him and said that he was responsible for the money owed to them by X.  They actually said that the applicant was liable for repayment of loans taken out from them by X.  The Tribunal asked the applicant when it was that these people came to his shop making those statements.  In response, the applicant said that from mid-2013 onwards they began to give him pressure.

4. The Tribunal asked the applicant when the last time he saw X was.  In response, the applicant said that he last saw X at the end of 2014.  The Tribunal asked the applicant where he saw X on that final occasion.  In response, the applicant said that he had not been able to find X. He said that X kept changing his telephone numbers.  At one stage, he asked the applicant to go and meet him in [City 1].  The Tribunal asked the applicant what happened when he saw X on that occasion in [City 1].  In response, the applicant said that X told him that he would settle matters soon; that he would try and settle everything.  The applicant said that, based on those claims from X, he thought that he should trust him to do that.  The Tribunal asked the applicant why he would be willing to trust X by that stage. In response, the applicant said that his relationship with X had been a very long term one. Further, his situation did not allow him to distrust him, the applicant saying that he himself was in hard times financially and he had no other options.

   Evidence about delayed delivery of goods from [Country 1], consequent damage to the applicant’s business and action taken by his creditors

5. To the Tribunal, the applicant said that, for business 1, at the end of 2012, he ordered goods from [Country 1] which did not arrive in Bangladesh until March 2013.  When asked why that was, the applicant said that in 2012 he had been sick and during that time he asked X to look into ‘that matter’.   He gave X money to pay ‘customs clearance’ but X did not do that and this caused delay in delivery of the goods.  The applicant said that the arrival of the goods he ordered in March 2013 was too late because the goods were winter products.  Consequently, in March 2013, he started getting approached by people wanting repayment of money he borrowed from them in relation to the order of those goods.  He said that they approached him to get interest from him on the amounts owing.

6. One of these people was a man named [name] (‘Y’).  The Tribunal asked the applicant when Y started causing him problems in seeking repayment of the money that he was owed.  In response, the applicant said that Y began doing this at the end of 2013.  He said that initially Y and his associates wanted interest but the applicant could not pay so they then wanted payment of interest and capital.  When asked what trouble they actually caused, the applicant said that they would come into his shop, but, initially, were not aggressive.  He said that Y had a police officer come to the applicant’s shop a number of times.  The officer said that he would put the applicant in a ‘cross fire’ (meaning he would kill him).  Through 2014, these people kept coming.   

7. When asked if Y ever sent men to the applicant’s home, the applicant said that he began doing that in March 2014.  He said that, on that occasion, men came to the house with guns threatening to kill the applicant if he did not repay Y.  They came a few times to his father’s home and the applicant encountered them on one of those occasions.  When asked what happened on that occasion, the applicant said that the men slapped and threatened him and his family that they would kill him if he did not pay the amount owing. 

8. The Tribunal asked the applicant whether he ever went to the home of Y.  In response, the applicant said that he went to that person’s home in February or March 2015.  When asked why he did that, the applicant said that he had gone there to communicate with Y because at the time he had [number] lakhs taka as part payment of the amount he owed Y. He wanted to therefore pay that amount and ask for more time to repay the balance.  When asked how much he actually owed Y, the applicant said that he borrowed [number] lakhs from him and he paid off some in between.

9. When asked what happened when he went to the home of Y in early 2015, the applicant said that he went with a few friends.  He was surprised to see police officers and other friends of Y were present.  He said that Y was aggressive and, at first, he refused to accept the part payment of [number] lakhs.  He beat the applicant and then took him to a room and locked him in there. He demanded that the applicant payback everything.  The applicant’s friend tried to convince him to let him go and accept the payment of [number] lakhs.  Y agreed to do that and the applicant was able to leave.  The Tribunal asked the applicant whether he ever saw Y again after that occasion.  In response, the applicant said that he did not see him again as he was given three or four months to repay the remaining amount owing.  Y kept calling him on the telephone and his people continued to pressure the applicant to pay the amount owing.

10. The delayed delivery of goods from [Country 1] in March 2013 also caused the applicant to be pursued by another creditor, [name] (‘W’).  The applicant said that both he and X had borrowed money from this person which had not been repaid.  The Tribunal asked the applicant when it was that W began threatening him for repayment of the money owed by both him and X.  In response, the applicant said that it kept on happening to him more frequently especially when business 1 ‘completely collapsed’ and over the period from late 2013 to the beginning of 2015.  In that period, people were approaching him for repayment and it happened more frequently.

1. The Tribunal then reminded the applicant of the following claims made in his written statement dated 23 October 2018, namely, that W had links to corrupt police, W had people threaten the applicant’s wife and child and threaten to kidnap the child, W had people go to the home of the applicant’s father to get him and that in February 2015, W’s men took the applicant’s son from his wife, slapped him and said that if the applicant did not repay the amounts owing his son would be dead.   The applicant said that all of those claims were correct.  He said that his wife sold some jewellery and paid W some money.  

2. The Tribunal asked the applicant whether W took out a case against him.  In response, the applicant said that when he borrowed money from him he issued a cheque which was subsequently declined and so W sent him a legal notice.  When asked what that document said, the applicant responded that, in the document, it was asserted that the applicant had not repaid amounts he had borrowed within a specified deadline.  When asked if this meant that a court case had been commenced against him, the applicant said that was correct.

3. The Tribunal asked the applicant what happened in the court case.  In response, the applicant said that the court gave him more time as he was trying to delay.  When asked if he appeared in court himself, the applicant said that he did and had a lawyer with him.  The Tribunal asked the applicant when he attended court for the last time. He said that his last appearance was at the end of 2014 as he was distressed.  From the end of 2014, he had gone into hiding. At that time no arrest warrant had been issued for him because he had attended court.  He said that X did not go to court and so an arrest warrant was issued for him.

4. The applicant also said that a number of banks sent people to his father’s home demanding repayment of their loans.  The Tribunal asked the applicant when the banks began to approach him for repayment of amounts owing. In response, the applicant said that it all happened from 2013 when his business collapsed and he could not repay loans he had previously borrowed. 

   Evidence as to when the applicant went into hiding

5. The applicant told the Tribunal that he, his wife and children, all used to live in the home of the applicant’s father.  To the Tribunal, the applicant said that when he could see the risk of people coming for him he began moving around living in different places.  He said that he began doing this due to the fear he faced.  The Tribunal asked the applicant when he ceased living at the home of his father and began living in different places.  In response, the applicant said that at the end of 2014 he escaped to the home of a [sibling] in [City 2].  When asked to confirm that evidence, the applicant repeated it and said that his family ‘kicked’ him out of his father’s home.

6. He said that he stayed with his [sibling] in [City 2] for [a number] months and stopped living there because he felt that someone was watching him.  He then went to stay at the home of a relative in Dhaka for [a number of] days.  From there he went to stay at the home of a friend where he remained for [a number of] days.  He said that he just kept changing his place of residence in that fashion until he left Bangladesh in September 2015.  When asked why he continually changed his address, the applicant said that people were looking for him and he was asking for some days to settle things down.

7. The Tribunal asked the applicant why he stopped living at his father’s home at the end of 2014.  In response, the applicant said that his [siblings] were staying in that house and, prior to that time, ‘bad people’ were going there looking for him.  He said that his father was well known in the area but no one could help them and so his family told him to ‘get out’.  The Tribunal asked the applicant when these bad people first started going to his father’s house looking for him.  In response, the applicant said that they began doing that at the end of 2013.  When asked how often they came, the applicant initially said that he asked for two or three months to pay but it became more frequent.  He then said that they came approximately every 15 days and continued to do that up until the time the applicant stopped living at his father’s home.

8. When asked what these bad people did when they went to his father’s home, the applicant said that they would go there looking for him and threaten his family. They would say that they would ransack the house.  They said that if they could not find him they would get the police to do that. They would harass the applicant’s father and his [siblings].  The applicant said that on occasions he was actually in the house when they came.  He said that when they saw him they were very aggressive and violent. He would ask for more time to make payment. On one occasion they slapped him.  The applicant said that one of these bad people going to his father’s home to find him was a police officer.  The Tribunal asked the applicant to confirm his evidence that, therefore, throughout the year 2014, a police officer was going to his home looking for him. In response, the applicant said that was correct.

9. The applicant said that since February or March 2015, his wife and children have been living in different places, staying with different family members and remaining with each one for approximately six or seven months.  They do not remain in the one place because the applicant told them not to.

   Credibility concerns

   Concerns related to inconsistency in the applicant’s evidence

   Omission of important evidence from the applicant’s written statement of 1 October 2015

10. The Tribunal put to the applicant that his written statement of 1 October 2015 lodged with his protection visa application forms omitted very significant claims that he made in his subsequent written statement of 23 October 2018 and in his evidence at the Tribunal hearing.  The Tribunal put to the applicant that his first written statement contained no mention of his associate X, the difficulties suffered by the applicant because of X, including the closure of business 1 by Z, the threats made to the applicant’s wife and child, including the threat to kidnap the child and the decision made by the applicant to cease living in his father’s home and go into hiding.  The Tribunal asked the applicant why these important claims were not contained in his first written statement.

11. In response, the applicant said that when he got to Australia he was down, distressed and in a bad mental state. He was unable to give an account of all of the things he went through in Bangladesh.  At one stage, he was thinking of self-harm.    He said that his previous lawyer only asked him in a short time period to give a brief story.  Therefore, he put everything in short.  He said that he was not very good in English, so the previous lawyer just put it into this written statement and gave it to the Department.  For this reason, some information was missing. 

12. The Tribunal rejects these submissions.  The Tribunal does not accept that any distress that the applicant was experiencing when he prepared this written statement would prevent him mentioning the significant claims he advanced to the Tribunal.  Even if his former representative told him not to go beyond a brief statement of his claim, if the applicant was relating a truthful account, he would still have mentioned the harm he encountered through his association with X, the harm encountered by his wife and child and his decision to go into hiding.  The omission of these significant claims from the applicant’s first written statement reflects poorly on his credibility.

    Omission of a significant claim at the interview with the delegate

13. When interviewed by the delegate, the applicant was asked why he was afraid to return to Bangladesh.  The applicant told the delegate that he was afraid to return to Bangladesh because he had borrowed money from various people and could not repay the amounts he owed them.  To the delegate, the applicant said that he feared harm from those people on that basis.  At no stage in this interview did the applicant claim, as he did at the Tribunal hearing, that he feared harm from people who were pursuing him in relation to amounts of money owing to them by his business associate, X.   The applicant made no mention of having a business associate X and all of the difficulty X caused the applicant through his failure to repay his own creditors.

14. Pursuant to s.424A of the Act, by letter dated 15 February 2019, the Tribunal put this discrepancy to the applicant.  In response, in a statutory declaration made on 28 February 2019, the applicant said that, prior to the interview with the delegate, his previous representative told him not to mention X and his fear of X’s creditors.  This was because ‘the immigration might not raise this issue’.  Whereas, prior to the Tribunal hearing, the applicant’s representative told him to mention all relevant facts in relation to X, given that person’s role in the applicant’s financial loss and circumstances.  By letter dated 1 March 2019, the representative advanced similar explanations in relation to this discrepancy.

15. The Tribunal rejects those submissions.  If the applicant truly feared harm from the creditors of a business associate, as he now claims, the Tribunal does not believe that he would fail to advance this claim because the delegate might not raise it.  With the assistance of the former representative, the applicant’s first written statement sets out an account of the applicant borrowing money from certain people, being unable to repay that money and being at risk of harm as a result.  The Tribunal can see no plausible reason why the same former representative would advise the applicant not to also advance his claims about a fear of harm from the creditors of X, one of whom actually closed down the applicant’s business.

    Inconsistency about the closure of business 1

16. When interviewing the applicant, the delegate put to him that, according to documents he lodged with his application for a [temporary] visa, an application he made in July 2015, he had sufficient funds to be able to pay his debts in Bangladesh.  The delegate asked the applicant why he could not have used those funds to satisfy his creditors in relation to whom he feared harm.  In response to those questions, the applicant said that when he applied for the [temporary] visa, his business was running well.  He then said that the funds he used for the [temporary] visa application related to property owned by his father and they were not sufficient to pay off the amounts he owed.  

17. Although, at another part of the interview the applicant said that he was a ‘loser’ in his business, he did not specifically give to the delegate the evidence he gave at the Tribunal hearing that, in the middle of 2014, this business was shut down by a creditor of the applicant’s business associate, X.  Pursuant to s.424A of the Act, by letter dated 15 February 2019, the Tribunal put this discrepancy to the applicant.  In response, in his statutory declaration of 28 February 2019, the applicant said that perhaps his evidence at his interview with the delegate contained misunderstandings. He claimed that he told the delegate that before he fell into debt his business was running well.  He claimed, however, that it was not running well when he applied for the [temporary] visa. 

18. He then referred to Z taking over his business at the ‘end of 2014’.  He said that when he applied for his [temporary] visa his funds only covered the cost of applying and the cost of travel. For that reason he used his father’s property to assist his application.  By letter dated 1 March 2019, the representative put forward similar explanations in relation to this discrepancy. The Tribunal has listened to an audio recording of the applicant’s interview with the delegate and is satisfied that, during this interview, the applicant told the delegate that his business was running well at the time he applied for a [temporary] visa in July 2015.  As already discussed above, at the interview with the delegate, the applicant made no mention of his business associate X and the harm that befell him from the creditors of X, one of whom closed down his business.   His submissions on this issue are rejected.

19. In his application for a [temporary] visa, signed by the applicant [in] July 2015, he stated that he was employed as the proprietor of a business that the Tribunal understands to be business 1.  In support of his application, the applicant lodged a letter dated [in] July 2015, using the letterhead of that business and signed by the applicant as the proprietor of business 1.  In this letter, the applicant said that he was the proprietor of the business, that his company would bear his expenses for his travel to Australia and that he was intending to visit Australia for a period of approximately two weeks.  In addition, the applicant also submitted a letter dated [in] June 2015 from a bank in Bangladesh stating that he was the proprietor of business 1, that he had been maintaining a current account with the bank since July 2010 and that the letter was being issued at the applicant’s request, the bank referring to him as ‘our valued client’.

20. This evidence is inconsistent with the applicant’s evidence to the Tribunal that in the middle of 2014, this particular business was closed down and taken over by a creditor of the applicant’s business associate X.   To the Tribunal, the applicant said that, from that time, he ceased his involvement with that business.  Further, the applicant said that from the end of 2014, he ceased living at the home of his father and, in effect, went into hiding.  In contrast, the evidence he lodged in support of his application for a [temporary] visa, suggests that, at the time he made that application, he was operating his business and he was not in hiding.  Accordingly, the applicant’s evidence about the closure of his business and going into hiding appeared to be inconsistent.

21. Pursuant to s.424A of the Act, by letter dated 15 February 2019, the Tribunal put this discrepancy to the applicant.  In response, in his statutory declaration of 28 February 2019, the applicant stated that after handing over his business at the end of 2014 he remained the ‘legal proprietor’ for several months.  In that period he was not actively engaged in any business activities of the shop. He remained the legal proprietor because the transfer of a business proprietorship in Bangladesh takes longer.  Until the ‘period of [his] [temporary] visa application’, his name appeared as the proprietor of business 1.  Similarly, his name appeared as the proprietor in bank statements pending the legal change of business ownership.  For this purpose, he gave to Z blank bank cheques in the name of business 1 and signed by him to enable Z to conduct banking transactions pending the legal change of ownership.  The documents lodged with his [temporary] visa application relating to business 1, including bank documents, were submitted with the consent of Z so that the applicant could leave Bangladesh to save his life.  By letter dated 1 March 2019, the representative advanced similar explanations in relation to this discrepancy.

22. The Tribunal has carefully considered these submissions but finds that they do not overcome or resolve the inconsistency in the evidence before the Tribunal about the applicant’s involvement in this particular business.  To the Tribunal, the applicant said that Z closed down (or took over) his business at some point in 2014 because the applicant could not pay money owed to Z by X.  In those circumstances, the Tribunal does not believe that in the documents lodged with his [temporary] visa application the applicant would be presented as a proprietor (and an active proprietor) of this business with the consent of Z due to some period needed for a legal transfer of ownership.  Indeed, in his application for a [temporary] visa, the applicant specifically declared that he was employed in business 1.  Rather, the Tribunal finds that this is an invention on the part of the applicant to conceal the clear inconsistency in his accounts as to when this business ceased to operate and the applicant’s involvement in it.

    Concerns related to the applicant’s conduct

23. The Tribunal asked the applicant when he decided to leave Bangladesh. In response, the applicant said that he made that decision at the end of March 2015 due to his fear of Y and W.  When asked why he made the decision to leave Bangladesh at that time, the applicant said that he knew that he had sought more time, but thought that his creditors would not give that to him and so he thought that he had to leave the country. He thought that those people could do anything to him and he was afraid of them.  When asked what steps he took to leave, the applicant said that he researched Australia in relation to cost and visa procedures. He said that it took him one month to arrange everything.

24. The Tribunal asked the applicant whether he travelled out of Bangladesh between March 2015, when he decided to leave and September 2015, when he eventually did leave.  In response, the applicant said that he did not travel out of the country in that period.  He said that he was trying to hide and save himself. When asked to confirm his evidence that it was in March 2015 that he decided to leave Bangladesh, the applicant said that it was in approximately March, April or May that he made that decision.  He then said that he never left Bangladesh in 2015 apart from his travel to come to Australia in September 2015.

25. After he had given that evidence, the Tribunal put to him that, according to copies of pages from his passport on the Department file, he travelled to [Country 1] for approximately one week in March 2015.[4]  The Tribunal asked the applicant why he travelled to [Country 1] at that time.  The applicant did not straightaway respond to this question.  He remained silent and, then, after a very long pause, said that ‘may be’ he went there with Z for a business purpose.  The Tribunal put to the applicant that it had difficulty accepting that, by that time, while claiming to have gone into hiding from his creditors, he would travel to [Country 1] with that person.  In response, the applicant said that it was for Z’s business benefit. He said that Z ‘might’ take him as he was not familiar with those locations or shoe businesses. Z asked the applicant to go to show Z the shoe business.

    [4] See folio [number] of the Department file.

26. The Tribunal asked the applicant why he earlier said that in 2015 he did not travel out of Bangladesh, apart from his departure in September 2015, to come to Australia.  In response, the applicant said that he could not remember that he had gone to [Country 1] in March 2015.  He said that he was very confused as it was his understanding that he only travelled to [Country 1] in 2014 and that he did not travel after that.  The Tribunal found the applicant’s evidence on this issue unconvincing.  The Tribunal can appreciate that the journey in question, made in early 2015, occurred over three years prior to the Tribunal hearing, but, nevertheless, the Tribunal could reasonably expect the applicant to mention it when first questioned as to his travel in 2015, after going into hiding.

27. Further, the Tribunal also found unconvincing the applicant’s evidence about this travel being undertaken with Z a creditor of X who, on the applicant’s account to the Tribunal, pursued the applicant in relation to amounts owing to him by X and who closed and took over the applicant’s business, a business the applicant himself said had collapsed following the delayed delivery of goods in March 2013.  It seemed highly improbable to the Tribunal that, in those circumstances, this person would be travelling to [Country 1] with the applicant.  It likewise seemed highly improbable to the Tribunal that this person would be travelling to [Country 1] with the applicant in February 2014 as discussed above. 

1. The Tribunal is not persuaded by the applicant’s claim that this person originally offered for the applicant to stay in the business with him, an offer the applicant declined because he thought that Z would apply more pressure to him to, the Tribunal assumes, repay amounts owing to him by X.  In the applicant’s claimed circumstances at the relevant time, his evidence about his relationship with Z seemed far-fetched and not credible. That impression is enhanced by the applicant’s inconsistent evidence about travel out of Bangladesh in 2015 as discussed above.

2. The Tribunal reminded the applicant of his earlier evidence that he ceased living at his father’s home at the end of 2014 and went into hiding in fear of the various people pursuing him in relation to outstanding debts.  The Tribunal put to the applicant that it had difficulty accepting that, in those claimed circumstances, he would travel to [Country 1] in March 2015 and go to the home of Y, also in March 2015.  The Tribunal put to the applicant that his actions were inconsistent with the behaviour of someone claiming to be living covertly seeking to avoid the people he fears.  In response, the applicant said that if he went to [Country 1] he would have stayed there for only 10 or 12 days. He then said that he was confused about dates. 

3. The Tribunal asked the applicant why he would go and see Y in March 2015 if, by then, he was in hiding from that same person and those acting on his behalf. In response, the applicant said that he went to see Y because he thought that if he paid Y [number] lakhs then Y would get settled with him. He had spoken to Y on the telephone about that before going to see him and Y said that proposal was acceptable. He thought that he could manage Y for a while and Y said it would be alright to go to his home. 

4. The Tribunal is not persuaded by the applicant’s submissions on these issues.  Even if the applicant went to [Country 1] for a period of days, the Tribunal still finds this behaviour inconsistent with somebody claiming to be living covertly and trying not to come to the attention of those he feared.  Having made the decision to go into hiding, the Tribunal could also not accept that the applicant would then present himself to one of these people he was actually trying to avoid.  Even if the applicant did this to gain more time from this creditor through making a part payment of the total amount owing, the Tribunal does not believe that the applicant would put himself at risk by approaching this creditor directly and not, for example, have others approach the creditor on his behalf.

5. The Tribunal put to the applicant that in his written statement dated 23 October 2018 and at the Tribunal hearing, he indicated that Y and W were dangerous people who made use of corrupt police and political leaders.  The Tribunal put to the applicant that, in those circumstances, it had difficulty accepting that he would not decide to leave Bangladesh until as late as March 2015 when these people had been pursuing him from 2013.  In response, the applicant said that what the Tribunal put to him was correct; that since his problem arose in 2013 it took him until late 2015 to leave Bangladesh.  The applicant said that he was waiting and observing the situation thinking it could get better.  Further his associate X said that he would need more time to pay and the applicant thought that he could regain his business.

6. Again, the Tribunal is not persuaded by these submissions and does not accept that someone in the applicant’s claimed circumstances would make the decision to flee from his country for his safety so long after these creditors began pursuing him, following the late delivery of goods to his business in March 2013.  The Tribunal does not believe that the applicant would, over that period of time, contemplate that his situation might somehow improve, that X might repay his debts and that the applicant could regain or resume his business.  The applicant also claimed that when he last saw X at the end of 2014, X said that he would try and settle matters, but, given all of the events that had occurred up until that time, the Tribunal does not believe that the applicant would, from that assurance, actually think that that person’s debts would be paid off.

7. The Tribunal put to the applicant that it also had difficulty accepting that, if his creditors had been pursuing him from 2013, they had not actually seriously harmed him or even killed him.  He claimed that these creditors were well-connected in terms of their relationships with police and political leaders and, from 2013, the applicant had not repaid the amounts his creditors considered owing to them.  In response, the applicant said that he tried to pay some money from time to time and that is why his creditors did not kill him.  He said that it was because of what X had done that they were pressuring him to have him get X to settle his loans. 

8. The Tribunal is not persuaded by the applicant’s claims in this respect.  The Tribunal can understand that creditors would initially accept some money as part payment of a total amount owing.  However, in his written statement of 23 October 2018, the applicant makes clear that the people he fears are dangerous and powerful.  He more or less repeats those claims in his statutory declaration of 28 February 2019. While not solely determinative of his credibility, the applicant’s account that these people did not seriously harm him, except for the occasion on which the applicant voluntarily presented himself to his creditor Y in 2015, did not bear the ring of truth.

   Conclusions on credibility

9. At the beginning of the hearing, the Tribunal advised the applicant that, although the delegate may have accepted certain aspects of his account as being credible, it was, nevertheless, the task of the Tribunal to decide for itself whether or not his evidence was truthful and this was a purpose of the questions that the Tribunal would be asking him.  Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.

10. The Tribunal therefore disbelieves the applicant’s claims about his business dealings in Bangladesh to the effect that certain creditors closed down the applicant’s business, pursued, threatened and, in one case, assaulted him and, in another case, assaulted his child, in relation to money advanced to him and an associate X that was not repaid.  The Tribunal’s finding in this respect includes disbelieving claims about a court case being taken out against the applicant by one creditor and claims made in his protection visa application form about another creditor going to his family home after he left Bangladesh and making threats to them.  The Tribunal disbelieves his claims about going into hiding and his wife and children having to also change places of residence.

11. Because the applicant is not a witness of truth and because the account of events on which his protection claims are based is false, the Tribunal finds that it has no credible evidence before it as to what business activity the applicant undertook in Bangladesh and, most crucially, no credible evidence as to why he left Bangladesh and does not want to return there.  The Tribunal has no credible evidence before it that the applicant (or any member of his family) suffered harm in Bangladesh and no credible evidence that anybody in Bangladesh seeks to harm him.

12. In his statutory declaration of 28 February 2019, the applicant said that he still feels pain in his right leg after being attacked by Y when he went to that person’s home in 2015.  The applicant did not submit medical evidence about his right leg.  Whatever pain or injury the applicant has in his leg, the Tribunal finds that there is no credible evidence as to how this pain or injury was sustained.  Because he is not a witness of truth, the Tribunal disbelieves his claim that this injury was caused after being attacked by a creditor.

13. In reaching its findings on the applicant’s credibility, the Tribunal carefully considered documents submitted after the Tribunal hearing by the representative in submissions dated 2 November 2018.[5]  In this respect, the representative submitted trade licences, customs registration certificates, a document related to membership of a trade association, a bill of lading and a certificate issued by a taxation authority addressed to the applicant with respect to an ‘income tax’ case. According to these documents, the applicant and his family operated businesses in Bangladesh.  They do not demonstrate that the applicant’s account of his difficulties in Bangladesh is true.  Similarly, the representative submitted documents indicating that certain loans had been made to the applicant and to X.  Both the applicant and X may well have taken out loans in Bangladesh but that falls well short of demonstrating that the applicant’s account of his difficulties in Bangladesh is true.

    [5] See folios 66-143 of the Tribunal file.

14. The representative also submitted documents indicating the applicant took out loans and was in arrears with respect to repayment.  These documents included a ‘Return of warrant’ and ‘Summon to the accused’ addressed to the applicant and issued by courts in Bangladesh.  With these documents was a letter from a financial institution in Bangladesh advising that one of these cases relating to an overdue loan had been withdrawn.  Another document was a letter from a law firm addressed to the applicant for repayment of a loan from a financial institution.  Those documents are consistent with the applicant’s claims about being unable to repay loans made to him.

15. Added to this evidence, were documents submitted relating to the applicant’s dealings with W and Z.  In this respect, the representative submitted a ‘Legal Notice’ issued in May 2014 from a lawyer acting on behalf of W for repayment of amounts owing by the applicant, the lawyer noting that cheques provided by the applicant had been dishonoured.  As regards Z, the representative submitted copies of pages from Z’s Bangladesh passport, a trade licence issued to Z in March 2015 for a shoe business operated at the same address as business 1.   The representative also submitted a letter dated [in] October 2018 purportedly from Z.  In this letter Z states that X is a creditor of his; that the applicant surrendered his shop in 2014 as part payment of the amount owing by X and that in February 2014 and March 2015 he and the applicant travelled to [Country 1] to meet suppliers there.

16. The Tribunal has carefully considered this documentary evidence which purports to corroborate the applicant’s account of events on which his protection claims are based.  The contents of these documents do not explain nor allow the Tribunal to overlook the omission of significant claims from the applicant’s written statement lodged with his protection visa application.  The contents of these documents do not overcome or explain the failure of the applicant to give evidence to the delegate about his association with X and the harm that befell him because of that association.  While in his letter, Z claims that he did travel to [Country 1] with the applicant in 2014 and 2015 for business purposes, the Tribunal remains concerned as to the likelihood of the pair doing so in the applicant’s claimed circumstances.  Likewise, the contents of these documents do not persuade the Tribunal to overlook the lateness of the applicant’s decision to leave Bangladesh and his travel out of Bangladesh in March 2015 and his willingness to go and see, in person, one of his creditors, while at the same time claiming to have gone into hiding to avoid those people.

17. The contents of these documents also do not explain or resolve the inconsistency in the applicant’s evidence as to when business 1 was closed down or taken over by Z.  While, in his letter, Z maintains that he did take over that business from the applicant, that does not explain why, in his application for a [temporary] visa in July 2015, the applicant represented to the Department that he was employed in and a proprietor of business 1.  The Tribunal also notes that the trade licence submitted with respect to Z for a shoe business operated at the premises where business 1 was operated records a different name for that business.  This appears to be in conflict with the claims made by the applicant in his statutory declaration of 28 February 2019 that he remained the proprietor in name of business 1 including for a bank account held by the business for several months after Z took it over, including in July 2015, when he applied for the [temporary] visa.

18. In other words, according to his statutory declaration, although the business was taken over the applicant remained the proprietor of the business in name in 2014 and in July 2015, whereas, the trade licence submitted by the representative shows Z as the owner of a business with a different name operated from the same premises where the applicant had been operating business 1 and which the Tribunal understands to be, in fact, business 1.  Finally, the Tribunal must consider that the cumulative consideration of all of the concerns the Tribunal holds about the applicant’s credibility, which have all been set out above, significantly discredit him as a witness.  Taking all of the documents submitted into consideration, considered singularly or cumulatively, these documents do not explain, excuse or overcome the Tribunal’s credibility concerns.  Accordingly, so far as these documents purport to corroborate the applicant’s protection claims, the Tribunal does not give evidentiary weight to them.

19. In reaching its findings on credibility, the Tribunal also took into consideration submissions made by the representative.  In this respect, at the hearing, the representative submitted that the applicant did not hold any real fear for his safety until 2015 when he was beaten at the home of Y and when his wife and child were also attacked by his creditors.  The representative submitted that, prior to that time, the applicant had been able to pay small amounts to his creditors to ‘buy’ more time.  It was submitted that by 2015 he could not raise any more funds, X had disappeared and therefore he had to leave Bangladesh. 

20. The Tribunal is not persuaded by these submissions given the applicant said that creditors had been pursuing him as early as 2013 following the late delivery of goods from [Country 1] in March 2013. The applicant told the Tribunal that people had gone to his father’s home where he lived pursuing him, including a policeman who had, in effect, threatened to kill him. In his claimed circumstances, the Tribunal does not accept that it would take the applicant until March 2015, at the earliest, to decide to leave Bangladesh.  According to his account, the applicant had gone into hiding at the end of 2014, some months before even making the decision to leave Bangladesh.

21. It was submitted that the applicant went to the home of Y in 2015 to calm that person down, make part payment of amounts he owed and he went there with friends.  The Tribunal acknowledges that submission but does not believe that the applicant would take the risk of doing this even if he went with friends and was offering part payment.  The applicant made clear in his evidence how dangerous and powerful this individual was and the applicant had gone into hiding some time before then to actually avoid this person and those acting at his behest.

22. The representative submitted that the applicant failed initially to tell the Tribunal that in March 2015 he went to [Country 1], because he had a bad memory lapse.  The representative submitted that during a break taken in the hearing and before that issue was discussed, the applicant told the representative that he did not travel out of Bangladesh in 2015 except to come to Australia.  It was submitted that the applicant made a genuine mistake in failing to tell the Tribunal about this journey to [Country 1]. The Tribunal has considered these submissions but finds that the applicant’s initial failure to mention travelling out of Bangladesh at this time, when he was also claiming to be in hiding, reflected poorly on his credibility and was not a genuine mistake.

23. The representative submitted that the applicant and Z travelled together at that time because Z was using the applicant to help him with the shoe business that he had operated following the closure of business 1.   The Tribunal has dealt with above, submissions from the representative and the applicant as to why the pair made these journeys to [Country 1] and, for the reasons already given, the Tribunal does not believe the claims advanced about this.  Those submissions as to the purpose of travel to [Country 1] do not overcome the concerns that the Tribunal holds about the applicant’s credibility.

24. The representative submitted that it was plausible that the creditors of X would pursue the applicant for repayment of amounts loaned to X even though that might not occur in Australia.  The Tribunal can acknowledge the possibility that creditors of one person might pursue that person’s associate for repayment of monies owing, but, that does not explain or excuse the concerns the Tribunal holds about the applicant’s credibility as discussed above.  Finally, the representative submitted that because the applicant had been away from Bangladesh for approximately three years his creditors will think that he must now have money to be able to pay his debts and so they will harm him.  For the reasons given above, the Tribunal disbelieves the applicant’s claims about having creditors in Bangladesh, being pursued by them and fleeing from Bangladesh to avoid them.

25. By letter dated 25 October 2018, the representative submitted what he said was country information about corruption and abuse of power within law enforcement agencies in Bangladesh.[6]  The Tribunal is willing to accept that law enforcement agencies in Bangladesh are corrupt and abuse that power, but, for the reasons given above, the Tribunal disbelieves the applicant’s claims about being pursued by creditors with connections to corrupt police officers and those officers being used by those creditors to pursue the applicant.

    [6] See folios 66-106 of the Tribunal file.

26. By letter dated 2 November 2018, the representative submitted that the applicant may have provided minor, inaccurate information during the Tribunal hearing and this was due to memory loss and stress.  The representative submitted that his evidence should be considered as reliable and genuine.  The Tribunal does not believe that the significant omissions and inconsistency in the applicant’s evidence, as well as the concerns the Tribunal holds about the applicant’s conduct while claiming to be in hiding, can be explained or excused by stress or memory loss. For the reasons given above, the Tribunal disbelieves the applicant’s account of events on which his protection claims are based and finds that he is not a witness of truth.

27. In submissions dated 2 November 2018, the representative submitted that on return to Bangladesh the applicant would suffer extortion for being an ‘expatriate’.  In support of these submissions, the representative provided a media report issued in July 2003 referring to, in effect, Bangladeshis who reside and work in other countries, complaining about harassment on arrival at the airport in Dhaka, being subjected to extortion and intimidation by officials there and also being apprehensive about security in the country.  The Tribunal considers that this country information is far too old to be a basis on which the Tribunal can accurately assess the risk of the applicant suffering serious harm on this particular ground.

28. The representative also submitted a media report issued in October 2016 referring to the murder of a Bangladeshi national after returning to the country following ten years’ residence in Malaysia.  According to the report, this person was threatened by criminals to pay money through extortion and he appears to have been murdered on that basis.  The report contains scant information as to the background of this person and the precise circumstances in which he was killed.  With submissions of 25 October 2018, the representative enclosed a copy of the DFAT Country Information Report Bangladesh released in February 2018 which specifically addresses the treatment of returnees.  DFAT states no more than that returnees, including failed asylum seekers, are unlikely to face adverse attention. 

1. There is no mention of returnees suffering serious harm on arrival in Bangladesh (or after that time) for being away from the country. The Tribunal considers this report from DFAT to be more up-to-date and reliable country information than the media reports about extortion produced by the representative.  For these reasons, the Tribunal finds that the risk of the applicant suffering serious harm on return to Bangladesh because he has been away from the country for some years is remote. While one of the media reports produced by the representative referred to concerns about security in Bangladesh, to the Tribunal, the applicant said that the sole ground on which he claimed protection and feared harm in Bangladesh was his fear of his creditors and the creditors of X.  He added that he had been ‘kicked out’ of his family (due to his creditors sending people to the family home as he had told the Tribunal).  For the reasons given above, the Tribunal disbelieves the applicant’s claims about being in fear of harm from creditors and his family telling him to leave the family home.

2. For all of the reasons given above, the Tribunal finds that there is not a real chance that the applicant will suffer serious harm on return to Bangladesh. He does not hold a well-founded fear of persecution within the meaning of s.5J(1) of the Act.  For the same reasons that the Tribunal finds that there is not a real chance that the applicant will suffer serious harm in Bangladesh, the Tribunal also finds that there is not a real risk that he will suffer significant harm there. Accordingly, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the receiving country, Bangladesh, there is a real risk that he will suffer significant harm.

3. For the sake of completeness, the Tribunal records that the Department issued a certificate restricting the disclosure of certain documents on the Department file on the basis that their disclosure would be contrary to the public interest because they relate to business affairs and are internal documents.[7]  There was no need for the Tribunal to raise this with the applicant because the documents are nothing more than checklists completed by officers of the Department.  They are not adverse to the applicant and they are not relevant to the grounds on which this review has been determined. Further, the Department has not provided a proper reason for the restriction on disclosure of those documents and, therefore, the certificate issued by the Department is not valid.

   [7] The documents in question are folios [specified] of the Department file.

   CONCLUSIONS

4. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

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

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

   DECISION

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

   Paul Millar
   Member