1608736 (Refugee)

1608736 (Refugee) [2018] AATA 5672 (20 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1608736
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Luke Hardy
DATE:20 December 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 December 2018 at 4:22pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – imputed political opinion – family’s Bangladesh National Party (BNP) affiliation – brother sabotaged applicant’s student visa applications – brother not facing serious harm – attack by Awami League cadres on family – extortion demands – BNP Australia affiliation to support claims – lack of credible evidence to support conflicting claims – confused and incoherent responses to questions – no real risk of significant harm –decision under review affirmed
PRACTICE AND PROCEDURE – request for witness – no information about intended evidence provided – no oral evidence – witness’s written statement considered
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K-LA, 36, 65, 426, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 May 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, [name deleted], is a national of Bangladesh. He entered Australia on [date] March 2009 on [a student] visa which was valid to 22 December 2010. He was issued a further [student] visa on 25 August 2009 entitling him to remain until 22 June 2011. He was issued with a third [student] visa on 20 June 2011 and this was valid to 20 September 2013. A bridging visa issued on 20 July 2013, presumably in connection with an application to extend or renew the [student] visa, was valid to 23 September 2014. [The applicant] appears to have been without a lawful visa from then until lodging a protection visa application on 24 September 2015 and being granted a bridging visa one month later.
The Minister’s delegate refused to grant [the applicant] a protection visa on 26 May 2016. [The applicant] subsequently sought review by this Tribunal.
[The applicant] appeared before the Tribunal on 21 August 2018. He was accompanied by his adviser, a registered migration agent. He was also accompanied by [Mr A] identified as a friend who was also made available to the hearing as a witness.
Relevant to the intended witness, I have had regard to s.426 of the Migration Act:
Applicant may request Tribunal to call witnesses
(1) In the notice under section 425A, the Tribunal must notify the applicant:
(a) that he or she is invited to appear before the Tribunal to give evidence; and
(b) of the effect of subsection (2) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.
Regarding the intended witness, the Tribunal notified [the applicant] by email on 31 July of its invitation to him to attend a hearing on 21 August 2018. The response to the invitation was not received until 10 August 2018, which was more than 7 days (also more than 7 business days) after the invitation was emailed. The only information about potential witnesses in that response was a handwritten tick indicating an intention to present a witness but no information as to whom it might be or about what potentially relevant evidence the intended witness might present: the identity of the witness was indicated as being subject to later advice: “TBV”.
On 16 August 2018, five days before the hearing, [the applicant]’s adviser contacted the Tribunal to say that [Mr A] would be attending the hearing in the capacity of witness, but did not suggest what evidence he might be providing. The Tribunal was not notified by [the applicant] and/or his adviser under s.426(2).
On the day of the hearing, I, the presiding Member, took evidence from [the applicant] but, having heard his evidence, did not have any questions for the witness [Mr A] who had already submitted evidence in writing on 17 August 2018. However, even though I did not breach s.426(3), due to not having been notified by the applicant under s.426 (2), I nevertheless did not deal clearly during the hearing with the issue of the witness.
On 5 September 2018, [the applicant] sent a statutory declaration summarising some of his claims and arguing that I should have taken oral evidence from [Mr A] who had come to the hearing to confirm his ([the applicant]’s) “significant profile” and to give “further information about my political activities. I infer from this that [the applicant] was concerned I might be in breach of s.426(3) for failing to have regard to his wishes in considering whether or not to obtain evidence (orally or otherwise) from [Mr A], who was not, in any event, originally named in compliance with s.426(2) in [the applicant]’s (late) notice.
Notwithstanding that s.426(2) was not met, that [Mr A] had already submitted a brief witness statement in writing, and that I had no questions for [Mr A] at the hearing, I feel it would have been better to have considered explicitly at the hearing whether or not to obtain evidence (orally or otherwise) from [Mr A], not least since he had taken the trouble to attend, evidently according to [the applicant]’s wishes.
Accordingly, I invited [the applicant] to obtain from [Mr A] a written statement or statutory declaration of any length deemed appropriate addressing any potentially relevant facts or issues [Mr A] wished to address. I provided until 17 December 2018, and on that day a statutory declaration was received from [Mr A] through [the applicant]’s adviser. I shall discuss my consideration of the content in due course below.
The hearing on 21 August 2018 was facilitated by an interpreter in the Bengali-English medium.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (“the complementary protection criterion”). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether [the applicant] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims to the Department
[The applicant] was born in [year] and came to Australia when he was [age] years old. He completed a college degree in Dhaka in 2007 but claims not to have worked in Bangladesh before coming to Australia where he has worked [in a certain role] since 2009.
[The applicant] claimed to the Home Affairs Department that his family was involved with the Bangladesh nationalist Party (BNP). He said his brother [Mr B] is a member of a local BNP branch where he is also an adviser. He said [Mr B] used to work for a named local MP from 2001 to 2006. He said that local supporters of the Awami League (AL), which is now in government, consider his family as enemies. He said his family suffered threats from the AL particularly after the 2014 general elections, targeting [Mr B] in particular and trying to harm him.
[The applicant] claimed he used to help his brother [Mr B] with his “political activities”. He said that senior leaders of the BNP’s Australian chapter know him and appreciate his work here. He claimed he would face harm in the event of return to Bangladesh because of his family’s BNP affiliation. He appeared to claim that he too was politically involved with the BNP back in Bangladesh up to 2009, but the particulars of this appear, in his protection visa application form, to be that he assisted his local cadre brother [Mr B] in some undefined way. He said he left Bangladesh in 209 when the political situation “worsened”. He claimed that state protection would be unavailable to him and that he would not be able to relocate to avoid harm.
[The applicant] and his adviser foreshadowed submitting a detailed statement of claims but none was received by the Department.
Whereas [the applicant] told the Department that his brother [Mr B] is a member of the BNP in Bangladesh, he did not suggest that he had ever joined the party himself in Bangladesh.
[The applicant] evidently departed Bangladesh legally in 2009. He evidently approached the Bangladesh High Commission voluntarily to apply for a further passport, which he received on [date] 2015, valid to [date] 2020. This is evidently a standard passport and it is not subject to any evident travel restrictions.
Evidence to the Tribunal
Submissions
On 14 August 2018, [the applicant] submitted a number of documents in support of his review application.
The first document is a 1 August 2018 statement from an office bearer in the BNP asserting that [the applicant] has supported the BNP since 2001, helping with political and cultural activities particularly in the 2001 and 2008 elections. The author of the letter says that [the applicant] is “a truthful, sincere and reliable coordinator in the party and community”.
The second document is a 12 August 2018 reference letter from an “Advisor” to the BNP’s Australia chapter. It says that [the applicant] is an “[office bearer]” in the branch, “attending regularly in meeting [sic] and all other activities arranged by our organisation [and] also involved in community events and social work”. The letter refers to [the applicant] having reported that his life was in danger back in Bangladesh and that he left the country in fear of his life. The letter refers to two national BNP figures having been killed along with “many local activists”; it provides the names of the national figures but no details to support the claim about local activists. The letter says that the BNP chair, ex-PM Begum Khaleda Zia was in detention at the time, and concludes that for these reasons, [the applicant]’s life is really in danger.
Another document is a translated 13 August 2018 affidavit from [the applicant]’s mother, [Ms C], who claims that everything was going well in [the applicant]’s life until 20 July 2013 when he needed his brother [Mr B], who was sponsoring his study in Australia, to assist by sending him some documents. She declared that the documents sent to [the applicant] had the effect of damaging his last [student] visa extension application instead of facilitating it. She indicated in the affidavit that [Mr B] did this intentionally and that [the applicant] was the innocent victim of this action. [Ms C] went on to declare that [the applicant] has been trying to get [Mr B], who is “directly involved with the … BNP” to send him “some political papers for the last three years”, apparently to help him with his protection visa application, but without any luck. [Ms C] stated that the AL has been active against her family and that her sons are unable to do business in Bangladesh as a consequence. Finally, [Ms C] claimed that there was an incident on the night of 10 February 2017 while her family was gathered at her home for a traditional observance held in remembrance of her late husband, [the applicant]’s father, who had died on 18 May 2016. The observance was described an occasion for feeding the poor. She said that all her close relatives were at her home at the time including her son-in-law, who she identified as a Jamaat-e-Islami (JI) party leader called “[Mr D]”, and whose own house, she claimed, was burned down that night by AL supporters in an arson attack . She claimed that the purpose of burning her daughter and son-in-law’s house was “to foil the religious post funeral programme” for her late husband. This event is not discussed in the primary protection visa application; it is reported to have occurred the following year.
[The applicant] submitted two translated documents relating to the alleged house fire. One of the documents is a purported report to police dated 11 February 2017 from [Mr E], identified in the report as the son of [Mr D] and [Ms F], who was listed in [the applicant]’s protection visa application form as one of his two sisters. The report is purported to have been lodged at a police station in [District 1]. The fire is reported to have occurred on 10 February 2017 around half past midnight. This would suggest that [the applicant]’s family was already gathered at the family home on 9 February 2017. There is no accusation in the report about the fire having been caused by arson. [Mr E] states that he was at the home of his mother’s late father at the time, discussing obsequies for the deceased. The report refers to possessions lost in the fire.
The other translated document is a news report in the 11 February 2018 [local paper]. The main substance of this article, entitled “Arson on the residence of an opponent” reports a suspected arson attack on the home of a photographic studio proprietor in Pirojhpur district on 10 February 2017. The last paragraph of the article refers briefly to arson attacks on the homes of a police superintendent and a “Jamayet Amir” (a JI spiritual leader) in [District 1] The article says the home of the JI amir was destroyed by “unknown criminals” late on the night of Thursday 9 February 2018 (tolerably consistent with the date and time in the police report). At the Tribunal hearing, [the applicant] identified the “Jamayet Amir” as his brother-in-law.
On 15 August 2018, [the applicant] submitted a statutory declaration of the same date asserting that he joined the BNP in Bangladesh due to his brother [Mr B]’s influence, referring to [Mr B]’s role with the local branch of the BNP in Bangladesh and, up to a point, repeating other claims made in his protection visa application form. He said again, as initially stated in his original protection visa application, that the AL “tried” to harm the brother who he used to assist in the BNP back in Bangladesh; that person, evidently, would have been [Mr B]. However, [the applicant] also declared that “everything was smooth [for him and his family] until July 2013” when his third and last [student] visa was soon to run out and he was applying for a visa extension, evidently covered by a bridging visa issued on that day and valid to 23 September 2014. He declared that he and [Mr B] had by this date fallen into some enmity over some issue. He declared that arising from this [Mr B] provided some documents required for his student visa extension that created a problem and caused his visa application to be refused. He declared he then applied to the former Migration Review Tribunal (MRT) for review of the student visa refusal and received a decision affirming the that refusal. He declared that he then intended to seek judicial review of the decision but received legal advice that the Federal Circuit Court could only consider legal error and took advice to lodge a protection visa application.
[The applicant] declared that he has been involved with the BNP in Australia since 2009, chapter “regularly attending in meeting [sic] and all other activities arranged by our organisation [and] also involved in community events and social work”. He claimed to fear returning to Bangladesh because the authorities continue to abduct and kill many BNP activists, “even if they are normal supporters”. To sum up, on the one hand he claimed fear of persecution for reasons of assisting his brother [Mr B] and performing other activities for the BNP, and on the other because he feared being harmed by the same brother who had put him in a difficult situation with and for his family. He declared that AL cadres “continue to target [and] take revenge” against his brother [Mr B], with whom he has “issues”.
[The applicant]’s adviser lodged a submission on 15 August 2018 mainly citing reports from international human rights bodies and NGOs, and also Bangladeshi and other media reports, relating to conflicts between the BNP and the AL, the AL’s manipulation of the courts and state authorities to intimidate political opponents, and the rivalry between parties that has from time to time seen the killing of bloggers, demonstrators and activists.
The same submission referred me to three positive protection visa review decisions from the former Refugee Review Tribunal (now this division of the AAT) in the interest of seeking consistency in decision making. I note all three decisions and the reasoning of the presiding members in each. Each of these decisions involved other individuals making individual claims albeit in a similar socio-political context. I nevertheless note here that each individual protection visa application must be determined on its own individual factual merits having regard, amongst other things, to the consistency and credibility of evidence in individual cases. Whilst having regard to the importance of consistent decision making, and noting the claims and outcomes of the three cases highlighted, I must determine [the applicant]’s claims on their own merits.

On 17 August 2018, [the applicant] submitted a 13 August 2018 statement from his witness [Mr A] which says that he, [the applicant], arrived in Australia in March 2009 and has, since then, been actively involved with the BNP’s Australian chapter “attending regularly in meeting [sic] and all other activities arranged by our organisation [and] also involved in community events and social work”. [Mr A] said in the statement that [the applicant] had told him about having left Bangladesh out of fear of facing death over his participation in political activities in that country. He also claimed independently that national leaders and even people, including students, who are not political leaders have been abducted and killed. Summing up, he said that in his opinion [the applicant] faces a real risk of being murdered extra-judicially in Bangladesh.
In a 5 September 2018 statutory declaration, submitted after the Tribunal hearing, [the applicant] declared that [Mr B] is “a BNP local level leader” who, in order to run his business and also survive, as well and to forestall harm additional to the burning of their sister’s house, is obliged to pay “ransom” to the AL. He confirmed that the brother suffering this extortion is [Mr B] and he said that they are not in contact due to “family issues”. He declared that the “family issues” involved [Mr B] having taken revenge through sabotaging the student visa application due to his, [the applicant]’s, refusal to part with a share of family property. He declared that [Mr B] furnished him with falsified financial documents (a reference, evidently, to false bank statements) in the hope that the deception would be detected by the then-Immigration Department and lead to [the applicant] being jailed in Australia, making it possible somehow (but not explained) for [Mr B] to take possession of [the applicant]’s share of the property in Bangladesh.
[The applicant] declared that when he told his family about [Mr B] having sent him false documents, which he had unwittingly submitted to the Department, his family confronted [Mr B] and heard him admit to having sent them to avenge [the applicant]’s refusal to give over his share of the contented property.
[The applicant] went on to declare that the AL has cadres in Australia who note the activities of BNP supporters here and are particularly angered by BNP members here “exposing inhuman activities [perpetrated by] the Awami league” in Bangladesh. I have considered this alongside independent country information cited below.
As noted, [the applicant] discussed why he had wanted the Tribunal to obtain evidence from [Mr A], who in due course submitted a statutory declaration dated 17 December 2018. In that statutory declaration, [Mr A] said [the applicant] had been “attending regularly meetings and all other activities arranged by our organisation [and was] also involved in community events and social work”. [Mr A] added that [the applicant] had also been selected as [ a BNP office bearer]. [Mr A] further declared that [the applicant] had informed him about past political activity in Bangladesh causing him to flee to avoid being killed extra-judicially. He referred again to BNP leaders who have been killed in Bangladesh. He referred to Khaleda Zia being detained. [Mr A] referred to his not having had the opportunity to provide oral evidence in support of [the applicant] at the 21 August 2018 hearing. He went on to relate other information provided to him by [the applicant] including information about his “family issue” with [Mr B] and new information about his other brothers also strongly supporting the BNP. [Mr A] claimed to have been directly in contact with one of [the applicant]’s other two brothers, named [Mr G], who works in the garments business and who is under pressure because AL leaders come to his business demanding money under threats involving kidnapping. He declared that the local police had not even allowed a report about this to be logged. [Mr A] went on to declare that [the applicant]’s mother is in a condition of mental “torture” from police who visit her and ask about her sons because they do not stay in her house at night. He said he was aware of [the applicant]’s sister’s house having been burned down in 2017 by “Awami League supporters”. He declared that [Mr G] had told him that [the applicant]’s mother was all the more tense because she had not seen [the applicant] for ten years. [Mr A] claimed that [the applicant] has the qualities of a future leader in the BNP either in Australia or Bangladesh. He claimed that AL activists have increased their targeting of BNP activists in the run-up to elections to be held this month.
The Tribunal hearing
At the Tribunal hearing, [the applicant] told me he has three brothers, one living in Dhaka, running a garment business and working for the BNP; this brother he identified as [Mr B]. He said he has another brother who lives with their mother and who also runs a garment business but is not involved with the BNP; here he identified [Mr G]. He described his other brother as being married and living in [District 1] where he runs a [business] and indicated that this brother is also not involved in the BNP. When I specifically asked [the applicant] if all of his brothers are involved in the BNP he said, “No.” He also indicated that they just get on with their lives. In this way, [the applicant] contradicted [Mr A]’s evidence about all of his brothers being actively involved with the BNP. This is not to say that [Mr A] was not telling the truth in his statutory declaration, but it did appear to suggest that the information he was relating from [the applicant] and his family was somewhat unreliable.
[The applicant] specified around thirteen minutes into the hearing that [Mr G] works in the garment business and is also the brother who was implicated in his student visa issues. This evidence contradicts evidence sworn by [the applicant] in his 15 August 2018 statutory declaration, where he declared (at paragraph 8) that it was [Mr B] who had initially sponsored and later sabotaged his [student] visa extension application..
[The applicant] further contradicted himself during the hearing when he said that he joined the BNP in Bangladesh in June 2008 and then, in the face of further questions going to the details of this claim, said he did not join the BNP in Bangladesh because he was too busy. He did not resolve the inconsistency when I asked him to try to do so; he merely said he actively participated in favour of the BNP during election campaigns, “a little bit” in 2001 and more “heavily” in 2008. When I asked him to describe what he referred to as heavy involvement in the BNP, he said he distributed how-to-vote-BNP leaflets door-to-door prior to the election. Seeming to contradict this position to some extent, [the applicant] claimed that his full-time study in Bangladesh, up to the time he left in 2009, had prevented him from having much involvement in politics there.
I asked [the applicant] if [Mr B] was ever involved in similar door-to-door activities and he said he had not been because he had (and has) a higher profile in the BNP. I drew to the attention of [the applicant] that [Mr B] is evidently still in Bangladesh working for the BNP with his higher profile, and that two other brothers with the same familial link to this BNP member are also still in Bangladesh doing what they do: this did not appear to help support his claim to the Department and to the Tribunal that his family had sent him to Australia to protect him from harm due to his fraternal link to [Mr B]. In response, [the applicant] said his family had regarded him as facing a greater risk of harm from the AL than his brothers faced due to his being more educated than his brothers. I put to him that that was not his original claim, as he had claimed that the whole family’s BNP links through [Mr B] were the reason for his fleeing Bangladesh.
[The applicant] then provided a new, hitherto undisclosed claim about [Mr B], the alleged BNP member and local adviser in Bangladesh: he said that [Mr B] is protected from persecution thanks to “liaisons” he has with the AL. I asked him to explain and his response was confused and somewhat incoherent: he said that to survive, [Mr B] runs a garments business and that their sister’s house had been burned down by AL supporters.
I asked [the applicant] how it could be that the AL wants to harm him due to his links to [Mr B] whereas [Mr B] himself is evidently not being harmed by the AL due to having some “liaisons” with them. In reply, he said that he did not know what understanding [Mr B] had with the AL or how he had reached it because he and [Mr B] had not been in touch since 2013. When I asked him again later, however, he contradicted his claim about not know how [Mr B] had reached his understanding with the AL, telling me that [Mr B] pays the AL protection money at his place of business. I asked how the AL had ever “tried” to harm [Mr B] and he said, “I don’t know.” At the hearing, [the applicant] also talked about [Mr B]’s role in the unsuccessful student visa application of 2013: he said that [Mr B] provided him with false bank statements showing a significantly higher balance than was actually available. [the applicant] said [Mr B] did this because he was jealous over assets that the family had distributed to him. At this stage in the hearing, [the applicant] had reverted back to identifying [Mr B], rather than [Mr G], as the brother who had first supported and then sabotaged his student visa situation.
I asked [the applicant] for more detail about [Mr G]. He said that [Mr G], who votes for the BNP has difficulty running his garment business because people ask him for money. I asked him why he had not mentioned [Mr G]’s problems before, say, in his 15 August 2018 statutory declaration, and he said that his mother had described them in her affidavit. I note that the only thing, relevant to this point, that [Ms C] said in her affidavit was that her other sons are unable to do business in Bangladesh.
[The applicant] described all three of brothers being employed, all of them in their own businesses. Notwithstanding claims about [Mr B] and [Mr G] having to pay protection money in the garment businesses, his evidence about his three brothers struck me as being at odds with the claim in his mother’s affidavit about all three of her sons in Bangladesh being unable to do business there.
[The applicant] discussed the evidence he had submitted in support of the claim about his sister’s house having been burned down by AL supporters. He said the newspaper report that he had submitted with translation. As noted, he indicated that the “Jamayet Amir” in the newspaper article was [Mr D], the husband of his sister [Ms F], who are both named in the police report. [The applicant] claimed that the arson was politically motivated and that this was acknowledged in the newspaper article. I note that the heading of the article refers to an arson attack by an “opponent” the context for that heading is given as the fire in the home of the photographic studio owner in a different district; no political context is discussed at all, meaning that the word “opponent” might mean nothing more than a business “rival”. The house that [the applicant] says belonged to his sister and brother-in-law is mentioned in the article as being another house burned by people merely describes as “unknown criminals”.
I asked [the applicant] for more information as to who is believed to have burned down his sister’s house and why. In reply, he said his sister’s house was burned down because her husband was involved with the JI party. I put to him that the JI is a different political party from the BNP and that, on this evidence, the fire might have had nothing to do with his family’s links to the BNP. In reply, he said that the AL had originally intended on that night to burn his own family’s house but was unable to do so because it was full of people attending the wake. In this way, [the applicant] contradicted the claim he had just previously made regarding the arson being motivated by the individual home owner’s JI profile.
I asked [the applicant] how he had come to the conclusion that the arsonists’ original intention had been to set fire to his family’s home only to be deterred by the presence of people honouring his father. In reply, he said that the arsonists wanted “to make the wake unsuccessful”. This is similar to what his mother said in her affidavit but it contradicted [the applicant]’s earlier claim about the arsonists choosing not to disturb hi own family’s house due to all the people who were gathered there.
I asked [the applicant] to tell me when his father died and he said he died on 28 May 2016. Informed that Muslims traditionally bury their dead within 24 hours of decease, I asked [the applicant] why the family gathered on 10 February 2017, and he said that in honour of his late father they gathered to give out food to the poor. [The applicant] said his father’s funeral had been on 20 May 2016.
Regarding his evidently having affiliated in Australia with the BNP’s local chapter, which is conduct he has evidently engaged in whilst in Australia, I put to [the applicant] that I am required to have regard to s.5J(6):
In determining whether the person has a well founded fear of persecution for one or more of the reasons mentioned in paragraph [5J](1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
Addressing this, [the applicant] said he supported the BNP in Bangladesh and voted for it in 2008. He said that although he was busy studying here he was heavily involved in the BNP’s Australian chapter.
Independent country information
I have had regard to the following 2016 assessment from DFAT:
…most returnees, including asylum seekers, are not subjected to adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia.[1]
[1] Department of Foreign Affairs and Trade, DFAT Country Information Report – Bangladesh, 5 July 2016, p.23, ref. CIS38A80121206
Findings in relation to s.36(2)(a) of the Act
All of [the applicant]’s claims relate to “political opinion”: s.5J(1)(a) of the Act refers.
I accept that [the applicant] prefers the BNP to the AL and has voted for the BNP in Bangladesh. For this reason, I am satisfied that he has been affiliating with the BNP Australian chapter not solely for the purpose of strengthening his claim to be a refugee. Here then the question in relation to his conduct in Australia is whether or not he faces a real chance, separately or cumulatively, of being persecuted for reasons of that conduct. I will return to this integer in [the applicant]’s claims in due course.
On the evidence before me, I find that [the applicant] has given inconsistent evidence about actual involvement with the BNP in Bangladesh. He claimed to have joined the party and then changed that claim. His claim to have joined the BNP is, on the evidence before me, a false claim. Meanwhile, [the applicant] claimed on the one hand that he was “heavily” involved with the BNP in 2008 and on the other that he was too busy in the years up to 2009 to be much involved with politics at all. When asked to describe what he meant by being “heavily” involved, he said he used to drop pamphlets door-to-door during the 2008 election campaign; I consider it an exaggeration to suggest that such activity, limited as [the applicant] suggested to the weeks before a general election, amounts to heavy involvement. In any event, [the applicant] does not claim to have suffered persecution up to the time he left Bangladesh; he merely claims that people tried to harm his brother [Mr B] and that he feared being harmed due to his fraternal linked to that person. On the evidence before me, I do not accept that [the applicant] was actively involved with the BNP in Bangladesh. I find that his claims in this regard are inconsistent and exaggerated.
Up until this year, [the applicant] has not provided any particulars of the harm his brother [Mr B] faced for reasons of being active in the BNP: he merely said the AL had tried to harm [Mr B] and that this led him to fear being harmed himself. All the evidence to date is in fact about [Mr B] essentially not having been harmed due to paying protection money through the income from his garment business. On the evidence before me, extortion of protection money from a person’s business, whilst understandably unwelcome, does not rise to the level serious harm, not least because [the applicant] says [Mr B] still operates the garments business.
The main claim in this case, then, is that the AL does not persecute [Mr B] because of an understanding involving money, the same arrangement in the case of [Mr G] but not in the case of the other brother who is not in the garments industry. On the evidence before me, the harm inflicted is criminal mercenary activity specific and peculiar to the garments industry rather being a form of mistreatment of, or a negotiation with, a family with one member in the BNP. It strikes me as being illogical that the AL will persecute [the applicant] because he is [Mr B]’s bother whereas [Mr B] is not facing serious harm.
In particular, I do not accept on [the applicant]’s inconsistent evidence that it is the AL that is demanding money from [Mr B] in exchange for not persecuting him over his role in the BNP; I find this claim to be a far-fetched invention. I am not satisfied on the evidence before me that [Mr B] has been a person of interest to the AL, or its supporters or any other opponents of the BNP. I find that [the applicant]’s claims about his brother having a role in the BNP is not independently supported by any evidence other than comes from or is attributed to his family: the claims of [Ms C] in her statutory declaration and some scant information attributed by [Mr A] to [the applicant] and his brother [Mr G]. In view of inconsistencies in the [the applicant]’s evidence about his own claimed activities with the BNP, in view of inconsistent evidence about whether it was [Mr G] or [Mr B] who sabotaged his student visa application in 2013, and finding the claims about the AL protecting their “target” [Mr B] in exchange for payments of money out of the income from his garments business, I do not accept t [the applicant]’s brother [Mr B] has any formal or other potentially significant involvement with the BNP.
For this and other reasons I do not accept that the fire in the home of [Mr D] and [Ms F]was an arson attack perpetrated against [Mr B]’s family by the AL. It is illogical to assert that [Mr B] was protected from harassment from the AL due to an understanding between them and to suggest at the same time that the house fire was an act targeting [Mr B]’s family because of its blood links to him. The other reasons are all about the inconsistency between suggesting that the motivation for the fire was to intimidate the JI and its member [Mr D] and the confused claims about burning [Mr D]’s house as a means of disturbing an event being conducted in an different house some distance away. I accept that the fire occurred. I accept that it was caused by arson. I accept, considering the evidence in the newspaper alongside other references to that [Mr D] that he is a JI leader, at least locally. I am prepared to accept that the fire was caused by opponents of the JI: the newspaper article’s focus on [Mr D]’s title or position suggests that there is some public consensus about his profile being relevant to the attack on his home. However, I do not accept o the facts before me that the fire targeted the family of [Mr B] and the applicant [the applicant], let alone for reasons of perceived links to the BNP.

In addition, I do not accept as factual the information about the police visiting [the applicant]’s family home to pressure his mother, least of all about her sons not staying there at night: two of them evidently do not live in the same district.
I have noted that at one stage in the hearing [the applicant] told me that it was [Mr G], rather than [Mr B], who was responsible for his student visa issues: his inconsistent claims as to who was responsible for his fraudulent student visa application are inconsistent and unreliable, and cast a pall on his evidence overall. I do not accept on the evidence before me that [Mr B] sabotaged [the applicant]’s student visa application unbeknownst to [the applicant] until it was too late. I find that this information about [Mr B] is unreliable.
In view of [the applicant]’s lack of reliability about his brothers I do not accept that any of his them are suffering extortionate demands for money for any reasons. In the alternative, I find on the evidence that the harm is peculiar to a criminal element extorting the garments industry. There is no evidence to suggest that [the applicant] himself has any potentially significant connection with the garments industry in Bangladesh or that he will in the reasonably foreseeable future. I am not satisfied on the evidence before me that the alleged treatment of [the applicant]’s brothers [Mr B] and [Mr G] gives rise to a real chance of his being persecuted in Bangladesh in the reasonably foreseeable future.
Whereas I accept that the two witnesses from the BNP Australia are speaking the truth, I am not satisfied that what they report having been told to them my [the applicant] or other members of his family is factual.
I accept that [the applicant] has been involved with the BNP in Australia. To this extent I find his evidence and that of his two witnesses based in fact. However, very little has been said about what [the applicant] actually does in the BNP in Australia. All statements lack detail and are more or less a verbatim repetition of a reference to [the applicant] “attending regularly in meeting [sic] and all other activities arranged by our organisation [and] also involved in community events and social work”. Meanwhile, nothing before me suggests that the role of sporting secretary is a political function or anything other than a social, community health role. On the fairly scant particulars provided to me, and having regard to the DFAT assessment of the potential implications of affiliation with the BNP outside of Bangladesh, I am not satisfied that [the applicant]’s involvement with the BNP’s Australian chapter gives rise separately or cumulatively to a real chance of his being persecuted in Bangladesh in the reasonably foreseeable future.
Whereas I accept certain facts relating to the house fire on 10 February 2017, I am not satisfied that [the applicant] faces a real chance of being persecuted for reasons of his in-law link to the JI leader [Mr D].
In view of [the applicant]’s lack of reliability in this matter, I give little weight to the country information submitted by his adviser. I am not satisfied that the holding of elections this month gives rise to a real chance of [the applicant] facing persecution.
I give some weight to [the applicant] having been permitted to depart Bangladesh by its authorities and to his having been granted a further passport without restrictions.
I find on the evidence before me that [the applicant] did not come to Australia to flee potential persecution but did so, rather, purely for vocational reasons. The evidence before me leads me to the conclusion that he lodged a protection visa application for reasons that were not genuine.
Having considered all of the evidence before me in its entirety, I am not satisfied that [the applicant] faces a real chance of being persecuted for any reason in s.5J(1)(a). He is not a refugee.
For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
A person may be entitled to a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
"Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that [the applicant] is a national of Bangladesh, I find that Bangladesh is the receiving country in the present case.
[The applicant]’s complementary protection claims are essentially the same claims he has made made for a protection visa on refugee grounds. Those claims have failed largely due to [the applicant]'s lack of credibility and due to his claims failing to meet the real chance test. In view of my findings of fact above, all of [the applicant]’s claims must also fail as complementary protection claims, given that the "real risk" test imposes the same standard as the "real chance" test.
Thus, on the evidence before me, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, there is a real risk that [the applicant] will suffer significant harm.
Therefore, I conclude that I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 5672

20 December 2018

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