1609503 (Refugee)

1609503 (Refugee) [2018] AATA 3889 (30 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609503
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Nathan Goetz
DATE:30 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 August 2018 at 12:35pm
CATCHWORDS
REFUGEE – Protection visa – Bangladesh – political opinion – Bangladesh National Party activist – particular social group – ship deserter – physical assault – arrest warrant – limited political knowledge – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 424AA, 438, 499
Migration Regulations 1994, 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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
On 27 August 2015, the applicant applied for the visa. Following an interview with the delegate on 15 March 2016, the delegate refused to grant the visa in a decision dated 2 June 2016.
On 27 June 2016, the applicant applied to the Tribunal for a review of this decision. He provided a copy of the delegate decision with his application for review. On 28 August 2018, he appeared before the Tribunal to give evidence in support of his claims. The applicant was not represented by a migration agent at the hearing. The hearing was conducted with the use of a Bengali interpreter.
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, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
PRELIMINARY ISSUE – s.438 CERTIFICATE UNDER THE ACT
On the departmental file is a certificate dated 29 June 2016 which purports to prevent the disclosure of the information contained in folios 47-50 and 80 of the department file. It claims under s.438(1)(a) that the disclosure of this information would be contrary to the public interest because that information contains information relating to an internal working document and business affairs of the department.
The Tribunal advised the applicant about the existence of the certificate and invited him to make submissions about the validity of the certificate. The Tribunal advised the applicant that in the Tribunal’s view the certificate was invalid because internal working documents and business affairs are not categories that attract public interest immunity. The applicant told the Tribunal that he was not sure whether the certificate was valid or not.
Having considered the matter, the Tribunal concluded that the certificate was invalid on the basis that public interest immunity does not attach to internal working documents and business affairs, and that the information should be considered in the same way as any other information in the file, namely, discussed with the applicant if relevant to the assessment of the claims.
The information consisted of a ‘decision checklist’ and a record of interview with the master of the vessel from which the applicant deserted. The Tribunal’s view was that the information was neither helpful nor harmful to the applicant’s claims and the Tribunal has not considered the information any further.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a refugee or a person entitled to complementary protection. The Tribunal also needs to consider whether the applicant is a person who a member of the same family unit as a person who holds a protection visa.
Written Application for Protection Visa
According to the written application, the applicant [was] born on [date] in Chittagong, Bangladesh and is a citizen of that country. He is married and has [children] who remain in Bangladesh. He departed Bangladesh [in] June 2015 and arrived in [Australia] [in] August 2015. From [1985] until August 2015, he resided in [his home town] in Chittagong, Bangladesh. He entered Australia as a ‘ship deserter’.
The applicant claimed that after completing his [schooling] in [year], he attended [a named] College to complete his [a qualification]. While he was there, he became involved with Jatiyatabadi Chatradal, which is the student wing of the Bangladesh Nationalist Party (BNP). He wrote that he was elected as [an office bearer] of the college committee.
He wrote that on the 1 October 2001 parliamentary election, he supported the election campaign of BNP [candidate]. In 2003, he joined the Jatiyatabadi Jubodal which is the youth wing of the BNP and in 2004 he became [an office bearer] of the [Area 1] committee. He wrote that in 2010 he became a member of the local BNP.
The applicant claimed that he attended ‘numerous meetings, gatherings and processions’ against the government and that on a number of times he was attacked by Awami cadres. He wrote that he informed the BNP about these incidents and in April 2015 a group of plain clothed police visited his house to arrest him. The police showed the applicant’s wife a copy of a warrant of arrest that named the applicant. The applicant wrote that he discussed this issue with his friends, relatives and political colleagues and decided to leave the country.
The applicant claimed that if he returns home to Bangladesh, he will be persecuted because of his involvement with the BNP and he will also be subject to oppression as a ship deserter.
FINDINGS AND REASONS
The Tribunal is satisfied that the applicant [was] born on [date] in Chittagong, Bangladesh and that he is a citizen of that country. The Tribunal is satisfied that the applicant does not have a right to reside in another country because there is no evidence to the contrary. Therefore, the country of reference for this application is Bangladesh.
At the hearing, the applicant was asked questions about his family in Bangladesh, his involvement with the Bangladesh Nationalist Party, his travel to Australia, his current circumstances in Australia, why he claimed protection and his fears about being returned to Bangladesh.
The applicant confirmed that a migration agent had assisted him to complete the written protection visa application. He told the Tribunal that the migration agent had asked him the questions in the form and that the applicant had answered them. The applicant confirmed that all the information in the form was true.
After considering all the evidence, the Tribunal has concluded that the decision under review should be affirmed.
Inconsistencies between Written Protection Visa and oral evidence given to the Tribunal
In the written application, the applicant declared that he had never been to Australia before (Q60) and that he had never held an Australian visa (Q62). However, at the Tribunal hearing the applicant told the Tribunal that had had become a seaman in 2001 and travelled to Australia previously on numerous occasions. A movement records check indicated that the applicant has been the holder of a Maritime Crew visa (subclass 988) and that his Australia migration history is as follows:
Arrived [in] September 2009 and departed [later in] September 2009.
Arrived [in] October 2009 and departed [later in] October 2009.
Arrived [in] April 2010 and departed [later in] April 2010.
Arrived [in] August 2011 and departed [in] September 2011
Arrived [in] November 2011 and departed [in] December 2011
Arrived [in] March 2013 and departed [in] April 2013.
Arrived [in] April 2014 and departed [in] May 2013.
Arrived [in] June 2013 and departed [later in] June 2013.
Arrived [in] July 2013 and departed [in] August 2013.
Arrived [in] September 2013 and departed [later in] September 2013.
Arrived [in] October 2013 and departed [later in] October 2013.
Arrived [in] November 2013 and departed [later in] November 2013.
Arrived [in] June 2015 and departed [later in] June 2015
Arrived [in] July 2015 and departed [later in] July 2015.
Arrived [later in] July 2015 and departed [later in] July 2015.
Arrived [still later in] July 2015 and departed [later in] July 2015.
Arrived [in] August 2015 and remains in Australia.
The Tribunal notes that the applicant disclosed to the Tribunal his previous travel to Australia when asked whether he had previously travelled here, but was concerned that the applicant did not disclose this information in his initial application. The applicant responded that he was not sure why the migration agent put down that response, and that it was probably a misunderstanding. The applicant also told the Tribunal that he was not sure why the migration agent had put down that the applicant had not previously held an Australian visa.
The written application also stated (Q82) that from [1985] until August 2015, the applicant had lived [in his home town in] Chittagong District in Bangladesh. That was the only address he lived at during his time in Bangladesh. The question directed that details of all residential addresses for the past 30 years were to be provided, which included places where the applicant lived for study/work, and any other places that the applicant had resided such as shares houses, universities and temporary accommodation. The applicant confirmed to the Tribunal that the only place he had lived in Bangladesh was his family home.
As the hearing progressed, the applicant told the Tribunal that after being made aware in April 2015 of a police warrant against him, the applicant did not return to the family home, but moved to his brother’s house and stayed there for a period between one and a half months to two months. When asked by the Tribunal to explain this inconsistency, the applicant told the Tribunal that he considered his family home his permanent address and only lived in other places because of his circumstances.
The Tribunal was concerned by the inconsistencies in the applicant’s evidence and the applicant’s explanations for them. The Tribunal does not accept that there could have been a mistake regarding the applicant’s previous visits to Australia and whether the applicant previously held a visa because the applicant told the Tribunal that the migration agent had asked the questions in the form and that the applicant had answered those questions truthfully. The Tribunal does not accept that there could have been any misunderstanding about those questions. The Tribunal does not accept the applicant’s explanation that the reason he told the Tribunal he had only lived at one address in Bangladesh was because he did not consider staying with his brother as where he lived. On the applicant’s oral evidence, he stayed at that address between 6 weeks and two months and it would be nonsense to think that he could be doing anything other than living at that address.
These inconsistencies demonstrated to the Tribunal that the applicant had a flexible approach to the truth and was willing to change his evidence if he believed that it would enhance his claims. In the case of his failure to declare his previous travel to Australia in his written protection application, the Tribunal is satisfied that this was done in an attempt to stop any enquiry about whether the applicant had an opportunity to claim protection in Australia previously (discussed below). In regard to the residential addresses in Bangladesh, the Tribunal is satisfied that this was done to make his claim more credible that a warrant had been issued against him, that police had attended on his family home, and that nothing further happened regarding the warrant because he was, in effect, in hiding at his brother’s house. The Tribunal’s view was that the applicant has a flexible approach to the truth.
The Tribunal was also concerned about the fact the applicant did not declare the past harm he had suffered in Bangladesh in his written application, other than to write that he ‘was attacked by the Awami cadres on a number of occasions’. At the Tribunal hearing, the applicant told the Tribunal that he was attacked in March 2015. The Tribunal concedes that this incident was talked about at the delegate interview. The applicant claimed that he was on his way to a political meeting and was stopped by four or five men who were Awami League members. He was verbally threatened. He was taken to an Awami League office where he was beaten and the applicant told them that he would no longer be involved in BNP politics and expressed remorse for saying that the Awami League was corrupt. The Awami League members were split on whether to release the applicant or kill him, but voted on the matter and released the applicant given that this was the first time he had been warned.
The Tribunal noted its concern to the applicant that there was a lack of specificity in his written claims about this past harm in Bangladesh but the applicant said he did include it in his written application. The applicant’s evidence about whether he had suffered any harm on any occasion other than March 2015 also shifted during the hearing. He originally told the Tribunal that he had not been harmed at any time other than the incident in March 2015, but then changed his evidence and told the Tribunal that this was the only time he had been harmed ‘significantly’ and that other times he had attacked the Awami League and they had attacked them.
The Tribunal understands that an applicant cannot be expected to put his entire case into his written protection visa application, but it is reasonable to expect that that some degree of detail would be included, especially in a case such as this where there was one serious incident of harm alleged. It is fanciful to think that the applicant in completing his form with a registered migration agent would not provide the specifics of the incident but instead refer in general terms to ‘being attacked on numerous occasions’. In the Tribunal’s view, the lack of inclusion of this specific detail suggests that the applicant has fabricated that story to provide a basis for his protection claim.
Bangladesh Nationalist Party
The applicant gave evidence to the Tribunal that was consistent with his written application about his past involvement with the Bangladesh Nationalist Party. He told the Tribunal he became involved in the student wing of the party in [year] during school, and after he started working, he became involved in the youth wing of the party in [year], and became a member of the executive of that wing in his local area in 2004. He said he was a leader of the party at a local level and in 2010 had joined the party where he was made [an office bearer] for the [specified branch], and was [appointed to another role] for the [area]. His duties have involved taking part in meetings, party processions and obtaining instructions from more senior level members. Some of his duties involved processions that resulted in road blocks and other obstructions of public transport. He said that he had been involved in party celebrations and asking for votes, but he told the Tribunal that since he has arrived in Australia he has not been a member of the party and not engaged in any party activity. He agreed with the Tribunal that he had been involved with the party for a long time, but said he did not know everything about the philosophy of the party. He said he was not liked by political opponents because he had done a lot for the party.
The Tribunal asked the applicant to tell it about the 19 Point Plan of the Bangladesh Nationalist Party[1] which is the programme of the late President Ziaur Rahman, who is the founder of the party. The applicant told the Tribunal that the plan was what the party wanted to implement in the country and told the Tribunal that the points were ‘to have a democratic belief and view, economic and social welfare, brotherhood, education, clothing and equality among the people.’ He told the Tribunal that there were a few more points but he could not remember everything. The Tribunal asked the applicant about the flag of the Bangladesh Nationalist Party[2] and the applicant drew the flag for the Tribunal. He described the flag as green in colour, with a black border, and six or red stars in the middle of the flag.
[1] Party factionalism in Bangladesh: a case study of the Awami league 1971-97 (PhD, 2004)
[2] The Flag is provided for in the Constitution of the Bangladesh Nationalist Party
The Tribunal was concerned by the applicant’s responses to these basic questions. The applicant’s description of the party flag, both in his oral description and drawing, were not consistent with the party’s flag. The applicant’s description of the 19 Point Plan was superficial and lacked detail. The Tribunal raised its concerns with the applicant and he told the Tribunal that he did not memorise the 19 points by heart, but he had them in his mind but could not tell the Tribunal about them. Regarding the flag, the applicant told the Tribunal that his description of the party was flag was the flag he remembered. The Tribunal does not accept the applicant’s explanations. In the tribunal’s view, this lack of knowledge was inconsistent with a person who has been a follower of the Bangladesh Nationalist Party since 1998, has held various leadership positions, and apparently had such a high profile that he was harmed by political opponents. This suggested to the Tribunal that the applicant’s claims had been fabricated and that he was never a member or supporter of the Bangladesh Nationalist Party.
Police Warrant

The applicant told the Tribunal that he was informed by his wife in April 2015 that there was a warrant out for his arrest. He was not at home when the police attended the family home in April 2015. He was at his brother’s place. The police did not leave a copy of the warrant but the warrant was for his participation in blocking a road, removing a rail line and ‘those sort of activities’. As noted previously, he told the Tribunal that he did not return to the family home after this police attendance, and remained at his brother’s home. His family advised him that he should leave the country.
The applicant claims that he was aware of a warrant for his arrest in April 2015, and gave evidence to the Tribunal that he had visited Australia four to five times in 2015 prior to his desertion from the ship in August 2015. He told the Tribunal that he was on a 9 month contract with the shipping company which commenced in June 2015. The route was from [one country] to Australia and back.
Pursuant to s.424AA of the Act, the Tribunal put to the applicant the information contained in the movement records which indicated that he was in Australia between [a date in] June 2015 and [later in] June 2015, between [a date in] July 2015 and [later in] July 2015, between [a date later in] July 2015 and [later in] July 2015, between [still later dates in] July 2015, and that this information would appear to undermine his claim about the warrant because he had four occasions where he could have left the ship and claimed protection in Australia.
It was curious to the Tribunal that the applicant would not have left the ship at the first opportunity in Australia if it were true that the applicant could not return to Bangladesh because of the police warrant. The Tribunal did not understand why the applicant would have waited until August 2015 (his fifth visit to Australia that year) to desert the ship. This is particularly the case where the applicant had told the Tribunal that he had spoken to a friend who had been based in Australia for 16 years. He obtained the mobile phone number of his friend in Australia mobile in 2003 from the friend’s family in Bangladesh. He had been friends with this person during school in Bangladesh, and wanted to let him know that he was coming to Australia. He told the Tribunal that he contacted the friend on [a date in] August 2015, and but had spoken to his friend three or four months prior to that. The Tribunal struggled to understand why the applicant would not have deserted the ship in his first visit, when he had been speaking to an Australian-based Bangldeshi and clearly had support in Australia. The Tribunal notes the applicant’s evidence that it was this friend with whom he lived in [a specified location].
The applicant told the Tribunal that in August 2015 he obtained a shore pass from the captain of the ship. It was the captain who could decide who left the ship and who was to remain on the ship. The applicant told the Tribunal that the he did not obtain a shore pass on any of the other occasions in 2015 when he arrived in Australia and that he remained on the ship. The Tribunal asked whether the applicant had asked the captain on any of those other four occasions for a shore pass and the applicant said no.
The Tribunal cannot accept that the applicant, who has left Bangladesh following him becoming aware of the police warrant and resulting in him fearing for his life, would come to Australia four times, be in contact with an Australian-based Bangladesh with whom he could stay and would not apply for shore leave to that he could obtain entry into Australia at the earliest possible opportunity. This suggested to the Tribunal that applicant had invented the police warrant as a basis for his claim for protection.
Ship Desertion
The applicant told the Tribunal that he could not return to Bangladesh because he feared for his life. He was worried that he would be killed by Awami League members and the police in a cross-fire. The Tribunal asked the applicant if there was any reason, apart from his involvement with the Bangladesh Nationalist Party, there was any other reason why he could not return to Bangladesh. The applicant told the Tribunal there was not.
The Tribunal put to the applicant it was concerned that he was not a truthful witness because he did not mention to the Tribunal a claim contained in his written protection application, namely that he would be ‘subjected to oppression as a ship deserter in accordance with the law of a seaman in Bangladesh’. He had written in the application that he was immigration cleared on [a date in] August 2015 and walked away from the ship. He was witnessed by a number of officers and he was allowed to pass. He believed that the officers were immigration officers and because he had been allowed to pass, he thought he was immigration cleared. The applicant’s explanation to the Tribunal about why he failed to raise this claim at the hearing was firstly that he did not mention any such claim, but then told the Tribunal that he did make such a claim and put his failure to raise it with the Tribunal due to a misunderstanding and that he forgot it. It appears incredulous to the Tribunal that the applicant would not raise his claim with the Tribunal when asked if there was any other reason why the applicant could not return to Bangladesh, unless the reason is that the applicant does not hold such fear. Further, the applicant’s shifting evidence about whether or not he raised the claim in his written protection application undermines the truthfulness of this claim. The applicant told the Tribunal that he knew that he violated the law due to his ship desertion and told the Tribunal that a charge had been lodged against him in court. When pressed further by the Tribunal about whether he knew that a charge had been lodged against him, he told the Tribunal that as soon as a person jumps from a ship it results in a charge. When the Tribunal indicated to the applicant that it was struggling to accept what he was telling it, the applicant told the Tribunal said that his mind was not working and he ‘maybe forgot’ about his claim.
The Tribunal has had regard to country information[3] regarding penalties that may be imposed on a Bangladeshi national for leaving a ship once they were working once it arrived in Australia. According to the Bangladesh Merchant Shipping Ordinance of 1983, the penalty for desertion under s.196 is five years imprisonment with a fine, forfeiting of personal effects left on board, forfeiting of wages earned, and to satisfy any excess wages paid by the owner of the ship for replacement of the employee. The country information also stated the following which the Tribunal put to the applicant:
[3] Standard Country Advice – RRT: Bangladesh: BGD42147 – 29 April 2013
Less Bangladeshi seafarers were working on foreign ships than in the past, in part because too many Bangladeshi seafarers jumped ships abroad causing huge loss/damage to their employers[4] and penalties for deserting foreign ships are not enforced in Bangladesh[5]. This information suggested to the Tribunal that any claim that the applicant had regarding possible consequences for his ship desertion were unfounded because it appeared that ship desertion by Bangladeshi nationals was such a common practice that it has resulted in less Bangladeshi’s being employed as seafarers, and there was no enforcement of penalties in any event. The applicant did not respond to this information, other than to say that if he had ‘any intentions he could have jumped off the ship long ago.’
[4] Development of maritime activities in Bangladesh, The Financial Express, 9 January 2012
[5] ‘Woes of maritime education in Bangladesh, The Financial Express, 22 August 2010
The Tribunal does not accept that the applicant subjectively fears that he will be liable to punishment for deserting his ship. If he held such fears, the applicant would have told the Tribunal about those fears when asked if there was any other reason why he could not return to Bangladesh. He said there was not and only mentioned this claim once the Tribunal brought his failure to raise this claim to his attention. Based on the country information, the Tribunal is satisfied that the reason the applicant has no subjective fear is because there is no risk that he will be punished for ship desertion.
Affidavit material submitted by the applicant at the Tribunal hearing
At the hearing, the applicant submitted seven documents in support of his protection visa claims. Those documents are each headed as an Affidavit made before the Notary Public, Chittagong, Bangladesh and are dated [in] October 2016. The applicant identified the affidavit makers and his relationship with the makers as: [(his wife)], [(his friend)], [(his friend)], [(his father-in-law)], [(his elder brother)], [(his nephew)] and [(his brother-in-law)]. The applicant told the Tribunal that his brother (and author of one of the Affidavit’s) had sent those documents to him from Bangladesh in 2016.
The affidavits all read that the applicant was a seaman. His ship [landed] at [in] Australia [in] August 2015. They gave a history of his education in Bangladesh, that he came involved in student politics with the student wing of the Bangladesh Nationalist Party and gradually became an [office bearer] of the [Area 1] Committee. They wrote that the applicant was a member of the Bangladesh Nationalist Party and had attended numerous meetings, gatherings and processions against the current government, that the applicant was attacked by activists of the ruling political party and that in April 2015 plain clothed police visited his address to arrest him. They wrote the applicant was very much scared for his life and that he decided to leave the country.
The Tribunal noted to the applicant that all the Affidavits contained the exact same four paragraphs and the same information. The only difference between the Affidavits was the names of the Affidavit makers and their relationship with the applicant. The applicant told the Tribunal that those documents were generated after the applicant’s interview with the delegate. He had asked his brother to assist him with obtaining the Affidavits. The applicant told the Tribunal that he had spoken to each of the Affidavit makers and explained his situation to each of them, and that he provided them with the information that they included in the Affidavits.
The Tribunal has considered what weight it should give to those documents. Given that the applicant conceded that the Affidavits were made on the basis of what he told the Affidavit makers, and that it is clear on reading those documents that the Affidavit makers are not speaking about their own knowledge of the applicant, but merely reciting the information that has been told to them, the Tribunal have given the Affidavits no weight.
CONCLUSION
When considering these claims individually and cumulatively, the Tribunal has determined that the applicant is not a witness of truth. The cumulative concerns regarding the inconsistencies between his written and oral evidence, lack of knowledge of basic information regarding the Bangladesh Nationalist Party, the circumstances of the applicant deserting his ship, and the fact that the applicant omitted his claim about the punishment for ship desertion until confronted with this omission by the Tribunal leaves the Tribunal in a position to give no weight to the applicant’s claims at all. The Tribunal is satisfied that these claims have been fabricated to provide a basis for the applicant to claim protection.
The Tribunal finds that the applicant was never a member of the Bangladesh Nationalist Party, never engaged in any political activity in Bangladesh, was never previously harmed in Bangladesh because of his political opinion, was never the subject of a police warrant, never relocated to avoid that warrant, and was never genuine in his fear of punishment for deserting his ship. The Tribunal finds that the applicant was never fearful of punishment for deserting his ship because the applicant knew that was no basis for that fear, as outlined in the country information which the Tribunal put to the applicant.
Refugee Criteria
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). The Tribunal is not satisfied that there is a real chance that the applicant would face serious harm due his political opinion, now or in the foreseeable future if he were to be removed from Australia to Bangladesh.
Complimentary Protection
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 there are substantial grounds for believing that the applicant, now or in the foreseeable future, would face a real risk of the death penalty, arbitrary deprivation of life, torture, cruel, inhuman or degrading treatment or punishment if he were to be removed from Australia to Bangladesh.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit as a person who holds a protection visa
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
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.
…

Researcher: Al-Zaman, Amin, pp68-69

[2018] AATA 3889

30 August 2018

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