1611137 (Refugee)

1611137 (Refugee) [2019] AATA 5838 (30 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1611137
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Nathan Goetz
DATE:30 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 30 June 2019 at 2:52pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh Nationalist Party (BNP) – past harm at the hands of Awami league cadres – credibility issues – fabricated claim in its entirety – residential arrangements – reporting of alleged assault to the police – attendances at BNP events – doctored photographs – knowledge of 19 Point Plan – fraudulent documents – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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

On 11 November 2016 the applicant, who the Tribunal accepts is a citizen of Bangladesh, arrived in Australia on a visitor visa.
On 9 December 2015 the applicant applied for a protection visa but this application was considered invalid by the department because the applicant had not provided personal identifiers. On 9 February 2016 the applicant again applied for the protection visa and this application was considered valid by the department.
On 1 July 2016 a delegate of the Minister for Immigration refused to grant the visa under s.65 of the Migration Act 1958 (the Act) following an interview with the applicant on 29 June 2016.
On 22 July 2016 the applicant applied to the Tribunal for a review of the refusal decision. He attached a copy of the delegate decision to the review application.
On 21 June 2019 the applicant appeared before the Tribunal to give evidence and present arguments. He was assisted at the hearing by a Bengali interpreter and his migration agent [of] [Law Firm 1].
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is from [Village 1], in the Kanaighat Upazila in the district of Sylhet in Bangladesh. He has left his wife and daughter behind in Bangladesh.
He claims that he cannot return to Bangladesh because of his political opinion. He claims that that he has been harmed in Bangladesh because of his involvement and support of the Bangladesh Nationalist Party (BNP). He claims that his persecution was at the hands of the cadres of the presently ruling Awami League political party. He provided photographs of himself
Although not explicitly claimed by the applicant, the applicant suggests that he is involved with the Bangladesh Nationalist Party in Australia and tendered photographs of his attendance at various meetings in Australia. The Tribunal has considered whether his conduct in Australia means that there is a real risk of serious harm or a real risk of significant harm on account of his activity in Australia if he were to be removed from Australia to Bangladesh.
Non-disclosure certificate issued under s.438 of the Act
The Tribunal advised the applicant that a certificate had been issued in respect of the information contained in folio 60 of the department file. In the Tribunal’s view, the certificate was invalid because it did no more than cite that the disclosure of the information would be contrary to the public interest because the information related to an internal working document and business affairs. Firstly, the certificate did not identify the harm that would be caused by the disclosure of this information, Secondly, internal working documents and business affairs have never been a ground for claims of public interest immunity. The applicant made no comment on the validity of the certificate and the Tribunal is satisfied that the certificate is invalid. The information purportedly covered by the certificate is irrelevant to the Tribunal’s task of assessing whether the applicant meets the criteria for a protection visa.
FINDINGS AND REASONS
The Tribunal has considered the material contained in the department file, the Tribunal file, the answers that the applicant provided in his delegate interview, and his responses to the Tribunal questions. For the below reasons, the Tribunal has determined that the applicant is not a credible witness. The Tribunal is satisfied that the applicant has fabricated his claims about his political involvement and past harm in Bangladesh. He is not a witness of truth. The Tribunal has made adverse credibility findings for the following reasons.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Firstly, the applicant provided unpersuasive evidence about his living arrangements in Bangladesh. The Tribunal notes that in his written protection visa application form, he wrote from [year] until 2015 he lived in [Village 1], although he wrote in his written statement that he ‘could not stay at home because of fear’ and that he was ‘not staying at his own house’.
In his oral evidence, the applicant told the Tribunal that he lived in his family home until January 2010 when he left because he had a political problem. The Tribunal asked the applicant where he lived from January 2010 and he said that he lived in ‘Sylhet city and different locations with his relatives.’ When requested to be more specific, he repeated that he lived in Sylhet city with relatives as well as at his brother’s house. The Tribunal asked where exactly the applicant loved, and he said that from January 2010 he lived with his brother’s house in Sylhet city which was 30km away from the family home. When asked when he stopped living at the house, he told the Tribunal that he was living there consistently but sometimes he left the house. He told the Tribunal that it was not his permanent address and that he lived there on and off, and that he would return to his village area to see his business. The Tribunal asked how long the applicant stayed with his brother from January 2010 and he repeated that he was not living there consistently and that, for example, he lived one week at one address and one week at another address. The Tribunal again wanted to know how long from January 2010 the applicant stayed with his brother, and again the response was that it was not his permanent address and that he ‘lived there on and off’. The Tribunal was concerned by the applicant’s evidence as it appeared that he was being deliberately evasive. Eventually, the applicant told the Tribunal that he lived with his brother for 15 days from January 2010 before living with another cousin in Sylhet city where he stayed for one week. He then told the Tribunal that he lived with another cousin in [Union 1], Kanaighat Upazila for a week before returning t his brother’s house in Sylhet city, where he remained for 15 days or a month. He said that he relocated to his cousin’s sister’s house in Sylhet city after that and when asked how long he was there for, he told the Tribunal that everyplace he lived was around a week, or sometimes 15 days. He told the Tribunal that was how he spent his living arrangements until 2015. He told the Tribunal about further stays at another of his mother’s cousin’s place in Sylhet city and his return to the address at [Union 1], before returning to his brother’s house in Sylhet city.
The Tribunal found the applicant’s evidence about his living arrangements in Bangladesh to be very odd and notes that it was quite torturous to obtain this information at the beginning of its questioning, with the applicant providing vague evidence that he had been moving around a lot. The applicant then gave evidence about his movement and it appeared to the Tribunal that the applicant was inventing these movements as he told the Tribunal about them, providing repetitive answers of living in places for one week, 15 days or a month. Given that the applicant was apparently able to detail the different places he stayed, it was curious to the Tribunal’s way of thinking that he would put down that he had lived in [Village 1] his whole life, and would not have detailed where he lived in his written statement. The Tribunal raised its concerns with the applicant because it wanted to reconcile these fundamental concerns it had with the applicant’s evidence. The applicant responded that his oral evidence about his addresses was true and that those were his living arrangements. He did not seek to explain to the Tribunal how he came to only put one address, that being his village address, in his application form, or to explain why he made broad references to having to move in his protection visa application instead of putting down where he moved to and from. In the Tribunal’s view, this is pretty important information and would have been included if the residential movements were true.
Noting that the applicant’s [age] year old wife and [age] year old child remain in Bangladesh, the Tribunal asked about their living arrangements. The applicant told the Tribunal that he and his wife had lived with his wife’s parents’ house which is located in [Village 2] in the [Union 2], Kanaighat Upazila, which was about 4km from the applicant’s family home. The applicant told the Tribunal that prior to that time, the applicant’s wife and children had lived in Sylhet city with the applicant’s brother which was the same address that the applicant stayed at. Noting that the applicant and his wife were married [in] July 2011, he confirmed that his wife lived with at his brother’s house from that time, and prior to the marriage, she remained with her parents in [Village 2]. The applicant noted that his wife did not accompany him to the different addresses when he moved around.
The Tribunal raised with the applicant its concern that he was not being truthful because it noted that in his written protection visa application, when asked whether he had contact with relatives outside of Australia, he answered in the affirmative and said that he contacted his wife over the phone twice monthly and that her current address was [Village 1]. In the applicant’s oral evidence, that there is no way that this could be true as this wife had lived with her parents, then moved to Sylhet city, and then returned to her parents after the applicant departed Bangladesh. The applicant simply said in response to the Tribunal’s concern about this evidence that his wife lived with at her parents’ house and did not elaborate on why he put down [Village 1] as the address where his wife was currently living.
In the Tribunal’s assessment of the evidence about the residential arrangements, it appears that the applicant has fabricated in his oral evidence where he has lived during his time in Bangladesh, and has fabricated where his wife has lived in an attempt to provide support for his narrative that he was in danger and could not remain in his local area. Similarly, the applicant would have been aware that the Tribunal would struggle to believe that the applicant’s wife would remain in [Village 1] if he had been harmed as alleged in his protection visa application, given his purported increased fame within BNP circles and the applicant becoming a marked person of the armed cadres of the Awami League in the region. In the Tribunal’s assessment, the applicant has a flexible approach to the truth and was willing to tell the Tribunal whatever he thought would be more persuasive evidence in support of his claims.
Secondly, the applicant gave inconsistent evidence about reporting an assault to the police. In his written application, the applicant claimed that [in] January 2014 he was attacked by a group of Awami league cadres and was hospitalised. He wrote that he was hospitalised for 10 days and then went to the police station to lodge a criminal case against the perpetrators of the attack. He wrote that that the police said that the police did not have permission from higher authorities to accept his case and that if he returned to the police they were going to file a case against him accusing him of carrying illegal arms. In his oral evidence to the Tribunal, the applicant said that he did not report this attack to the police. When the Tribunal put this inconsistency to the applicant and invited his comment, the applicant said that the events happened a long time ago and he could not remember everything.
In the Tribunal’s view, the applicant’s evidence about whether he reported the assault [of] January 2014 to the police or not was inconsistent because the evidence was fabricated. It is unreasonable to believe that the applicant, who was physically assaulted only the one time and hospitalised, resulting in purported hospitalisation, and was threatened by the police with charges if he returned to the police, would somehow fail to remember this significant event, especially when the applicant told the Tribunal that he did not report the attack to the police because he was opposed to the government, and his written application suggested that the police were merely an arm of the Awami League and that was why they would not take his report about his assault. In the Tribunal’s assessment, the applicant would have been consistent with his written application about reporting the incident to police if it were true that he had been assaulted as he claimed.
Thirdly, the Tribunal noted that the applicant had provided eight photographs with his written protection visa application which were submitted to demonstrate his involvement in BNP activities in Bangladesh, and asked him about those photographs. The applicant said that the photos were taken in different spots and that he had called the BNP party office to get those photos, but said he did not know from where the photographs were ‘collected’. He told the Tribunal that he received those photographs directly from the BNP party [office]. The Tribunal raised with the applicant, pursuant to s.424AA of the Act that this evidence was different from what he told the delegate at interview. At interview, he said that the photographs had been given to his wife by the BNP party [office]. The applicant responded that his wife obtained the photographs from the party headquarters and she sent them to the applicant and in effect, that is what he meant when he told the Tribunal that had had been sent the photographs by the BNP party office. The Tribunal does not accept that this was the case and demonstrates to the Tribunal that the applicant has a flexible approach to the truth, even about something as simple as how he was sent photographs. However, given the content of the photographs, it is understandable why the applicant may have attempted to put some distance between the photographs and himself.
The photographs, which are contained in Folio 1 to 4 and repeated in Folio 91 to 94 of the departmental file, have clearly been doctored, with the same photograph of the applicant’s head imposed into those photos. Each photograph contains the applicant with the same emotionless expression with colours being out of synch with the rest of the photo, and in some cases, the applicant’s head is disproportionate to the rest of the photograph. Despite the applicant telling the delegate that he was telling the truth, that those photographs were genuine and that he had attended those events, the applicant attempted to shift that evidence when appearing at the Tribunal by stating that he did not produce the photos and that he did not know from where the party produced the photos, but stated that he did attend those events. The Tribunal finds the applicant unpersuasive about the production of the photographs. It is incredulous to believe that the applicant, who claims to have been involved in BNP politics in Bangladesh and attended events such as public demonstrations in Bangladesh, would not be able to produce a photograph of his actual attendances at events, and instead resort to doctored images. It is also incredulous to believe that the BNP would be responsible for producing clearly faked images and giving them to the applicant, knowing that the reliance by the applicant on these images could have adverse impact on his credibility by relying on such images.
Fourthly, the Tribunal struggles to accept the applicant’s evidence that he would not report his assault in January 2014 to the police (as claimed in his oral evidence) but would do so when his shop was attacked in October 2014 (as claimed in his written protection visa application). The Applicant told the Tribunal that he did this because he reported the shop attack to the police because he thought that the police would be more lenient on account of it being damage to his business, rather than it being an assault on him. The Tribunal finds this evidence to be fanciful that the applicant, who claims that he was a BNP member that was either warned previously by the police against complaining about the assault (according to the written evidence) or did not complain to the police because he was opposed to the government knowing that the police would not take the case because of this opposition to the government (according to the oral evidence), would then suddenly decide that he should report the attack on his shop to the police when this occurs 9 months later. The Tribunal finds this evidence unbelievable, remembering that the applicant gave evidence that

Fifthly, the Tribunal finds it incredulous that the applicant would attend the court to lodge a complaint about the attack on his shop in October 2014 given his claims. The Tribunal notes the applicant’s oral evidence that following the attack on his shop, he went to the police to report the attack on the business but the claim was not accepted by the police. He then went and lodged a case in court against the person who damaged his shop. Yet, when he was assaulted in January 2014, he told the Tribunal that he did not lodge a case with the court because he was scared and was threatened that he would be killed if he did so. Noting that the person who physically attacked him in January 2014 was an Awami League cadre, and the person who damaged his shop in October 2014 was the brother of the same Awami League cadre he Tribunal finds the actions of the applicant lodging the court case incredible when he says that the reason he did not lodge a court case after his assault because he was fearful. In the Tribunal’s view, had the applicant no longer been fearful, he would have taken steps to lodge a case with the court regarding his assault in January 2014 as he was clearly no longer fearful in lodging a case regarding the assault in October 2014. The absurdity of the proposition that the applicant did not lodge a court case about the assault because he was fearful, but lodge a court case about the shop damage, is made even more fanciful because of the fact that lodging a case in court requires (as told by the applicant to the Tribunal), the case going to police for investigation. The Tribunal queried why the applicant would bother doing this if the case was going to be directed back to the police who had previously indicated in January 2014 their unwillingness to help the applicant. Again, the applicant stated that he thought that as it was a business related case, he thought he may get some justice. To the Tribunal’s way of thinking, this makes no sense at all. The Tribunal is satisfied that the reason for the incredulous nature of the applicant’s evidence about his engagement with the police and the court system is because the evidence has been fabricated.
Sixthly, the Tribunal does not accept applicant’s evidence that he is involved in the Bangladesh Nationalist Party in Australia. There was no evidence such as a membership card, letters of support from fellow members, or anything about his activity in Australia, apart from eight photographs that were received at the hearing (noting that seven of these photographs were provided to the Tribunal in September 2018). The applicants evidence about those photographs was extremely broad, with the applicant stating that the photographs were taken ‘at a meeting’ about the birthday of the BNP chairperson’s son. The applicant told the Tribunal that he was a member of the BNP in Australia but had no organisational role and explained that he became involved in the organisation three months after his arrival in Australia. He got involved in the organisation because he was an advertisement a Bengali-language newspaper and got information and joined. The applicant told the Tribunal that his involvement with the BNP in Australia demonstrated that he held a true political opinion.
Noting that the applicant has allegedly involved with the BNP in both Bangladesh and Australia since 2005, the Tribunal asked the applicant if it could tell the Tribunal about the 19 Point Plan of the BNP. The applicant was able to tell the Tribunal about the 19 Point Plan and the Tribunal asked the applicant when he learned about these founding principles. He told the Tribunal that he learned about the Plan when he joined the BNP. The Tribunal then raised with the applicant, pursuant to s.424AA of the Act the fact that in his delegate interview, he was asked whether he could name any of the 19 Point Plan and he answered in the negative. In the Tribunal’s assessment, someone who had ‘studied the political philosophies of different political parties in the country…liked the nationalist approach of the BNP…’ and was ‘easily influencing swing voters to support and vote for the BNP…’ and ‘saw how the country had benefited from the BNP’s economic and political policies’ would not have been able to tell the delegate about something fundamental as the 19 Point Plan. The applicant told the Tribunal that on the day of the delegate interview he was really sick and did not understand the question. He produced a copy of a medical certificate which stated that he was suffering from a medical illness and would be unfit for his usual work between 27 June 2016 and 30 June 2016. This was the first time that this medical certificate had been produced, and the applicant confirmed that he had not provided it to the delegate. He said he did not do so because he thought if he told the delegate this they would not have an interview with him at all. The Tribunal rejects the applicant’s explanations that he could not remember the 19 Point Plan because of illness.
Having listened to the delegate hearing, the applicant does not appear to struggle with other questions, answers questions asked of him, does not indicate any discomfort or illness, and is able to recall dates of his assault and the dates of his shop attack. Further, if the applicant was actually ill, it would be reasonable to expect that he would have cited that as his reason as to why he could not recall the 19 Point Plan while in his interview, or would have provided the delegate with the medical certificate post the interview to explain his inability to recall information that is, in the Tribunal’s view, essential knowledge for a BNP supporter. The applicant did none of these things. Further, the Tribunal would have thought that if he applicant had any problems with the delegate interview on account of his illness, he would have raised those in his review application of 22 July 2016 to the Tribunal where he included a four page submission about why the delegate had made an error in refusing his application, stating that the delegate had ‘over looked and ignored important matters to bring into consideration at the time of making the decision’, especially given that he said that he was heavily tortured and lost his ‘normal memory and mental health’. The Tribunal notes that no evidence by way of medical report was provided to substantiate that suggestion. In the Tribunal’s view, the applicant could not recall the 19 Point Plan at the delegate hearing because he had not learned about this aspect of the BNP, and his claim to the Tribunal that he learned about this when he joined the BNP in 2005 undermines his credibility as a witness.
The Tribunal explained to the applicant its obligation to disregard any conduct by him in Australia unless the applicant satisfies the Tribunal that the conduct was done for purposes other than only strengthening his protection claims. Given the concerns that the Tribunal has about the credibility of the applicant as witness, the Tribunal is satisfied that the sole purpose in producing the photographs of the applicant at a ‘meeting’ of the BNP in Australia was to strengthen his claim for protection. But in any event, the Tribunal does not accept that the applicant is a member of the BNP in Australia for the reasons discussed earlier in the decision. The Tribunal is satisfied that the applicant did attend one gathering for a birthday celebration that was held by the BNP, but does not accept that this means he is a member or a supporter of the BNP. There is nothing before the Tribunal to suggest that being photographed at one social event held by the BNP would place the applicant at any risk of harm if he returned to Bangladesh.
The Tribunal was also concerned about the failure of the applicant to include in his written protection application; failed to raise with the delegate at hearing; and failed to raise in his evidence at the Tribunal an apparent claim that he had been the subject of a criminal charge. The claim stems from a document in Folio 10-16 in the department file which has an English translation. Not once did the applicant cite this document as a reason for him being unable to return to Bangladesh and indeed it is understandable that the delegate did not question the applicant about it because no reference was made anywhere in the protection visa application to the document being evidence of a reason for the inability of the applicant to return to Bangladesh. The Tribunal raised its concern with the applicant failing to raise that claim at the hearing. In the Tribunal’s assessment, a case against the applicant (which was presumably politically motivated) was a significant thing to put before a decision maker. The applicant clearly thought it was relevant because he included the document in the protection visa application, but oddly made no reference to it in his protection claims and in fact selected no when asked in the form about whether he had been charged with any offence that was currently awaiting legal action. The applicant’s only response to the Tribunal’s concern was that ‘this happened a long time ago, and he could not remember everything’.
The Tribunal is not satisfied with the applicant’s response about his failure to talk about the criminal case against him. To the Tribunal’s way of thinking, the applicant being charged with a criminal offence would not be easily forgotten if it were true. The fact that there was no mention of the charge in the written protection visa application statement appears to be the reason that it was not raised by the applicant at the hearing: the applicant had not had the opportunity to learn about the alleged criminal case against him and had clearly forgotten that he was to cite this as a reason for claiming protection. In the Tribunal’s assessment, the claim that the applicant has been charged with criminal offences is a fabrication.
The applicant also stated that he feared returning to Bangladesh because a case had been brought against his wife. This case, according to the written protection visa application, involved his wife and another person harassing another person to the point of that person committing suicide. The Tribunal asked how that related to the applicant’s claims for protection and he told the Tribunal that this case was filed by Awami League supporters to harass his wife and that this was done because of the applicant. However, the applicant noted that his wife won the case and that the matter was now concluded, but he feared that this type of occurrence would be repeated if he returned to Bangladesh. The applicant told the Tribunal that the person who brought the case (the father of the deceased lady) told him that the same people who assaulted the applicant and damaged his shop had ‘inspired’ the person to bring the case against the applicant’s wife. The Tribunal has considered the applicant’s evidence about this matter, but for the reasons of credibility as discussed below, rejects any suggestion that his wife was charged with offences.
The Tribunal has considered the applicant’s claims individually and on a cumulative basis. However, the Tribunal does not find that the applicant is a witness of truth. In the Tribunal’s assessment, the applicant’s contradictory evidence about the residential arrangements in Bangladesh for both he and his wife demonstrated a flexible approach to the truth. The giving of contradictory evidence about the reporting of the assault to the police in January 2014 fundamentally undermines the claim assault happened. The production of clearly doctored photographs demonstrates that the applicant will fabricate evidence to try and persuade the Tribunal that his claims are genuine. The incredulity of the applicant failing to report his assault to the police because he knew that the police would do nothing, but claiming to report the damage to his shop because he believed the police would do something; not lodging a case with the courts about his assault because he was frightened, yet then lodging a case with the courts about the damage to his shop, and providing no reasonable explanation for his failure to raise the fact that he had been charged in Bangladesh, leave the Tribunal in a position where it simply cannot rely upon anything that the applicant says in support of his protection claims. Further, the Tribunal’s finding that the applicant is not a credible witness and has fabricated the claims about what has transpired in Bangladesh leave the Tribunal in a position where it rejects any suggestion that he is a member of the BNP in Australia or has done anything other than attend a social function to celebrate a birthday. The Tribunal is satisfied that the applicant is not a genuine follower of the BNP and that he learned the BNP 19 Point Plan to appear more credible in his claims. The Tribunal is satisfied that when the applicant returns to Bangladesh, he will not engage in BNP politics because he is not a genuine BNP supporter.
The Tribunal notes that advice that ‘there is a significant prevalence of fraudulent documents [in Bangladesh] including passports, birth certificates, bank statements, taxation documents, business documents, school documents, marriage certificates’. It has been suggested that if any document is asked for, it can be produced with quality depending on price (UK Home Office - Country Policy and Information Note Bangladesh: Background information, including actors of protection, and internal relocation – 18 January 2018 at 13.2.1). Given the concerns that the Tribunal has with the applicant’s credibility, the Tribunal is satisfied that the documents produced by the applicant in support of his application being his court proceeding issued against the perpetrators of his shop attack, the first information report about his wife’s alleged criminal conduct in causing the death of another person, and the proceedings against the applicant regarding illegal use of land, are all fraudulent documents produced by the applicant to generate a claim for protection.
The Tribunal is not satisfied that the applicant has ever been harmed in Bangladesh, has had his property damaged, has had to relocate to avoid harm, has ever been threatened in Bangladesh or had proceedings initiated against him or any member of his family. The Tribunal is not satisfied that the applicant has lodged any proceedings against his alleged persecutors in Bangladesh, and is not satisfied that the applicant has participated in any political activity in Australia or in Bangladesh (save for the photographs of the applicant in Australia at a BNP social event celebrating a birthday).
The Tribunal is satisfied that the applicant is no risk of harm when he returns to Bangladesh because he has fabricated his claims for protection in their entirety.
CONCLUSION
Refugee criterion
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). That is to say, the Tribunal is not satisfied that there is a real chance of serious harm being directed to the applicant on the basis of his reasons of race, religion, nationality, membership of a particular social group or political opinion.
Complementary Protection criterion
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). For the same reasons as above, namely the Tribunal finding that the applicant is not a credible witness, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). That is to say, the Tribunal is not satisfied that there are substantial grounds for belieiving that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real chance that the applicant would be arbitrarily deprived of his or her life; or be subject to the death penalty, be subjected to torture, be subjected to cruel or inhuman treatment or punishment; or be subjected to degrading treatment or punishment.
Membership of the same family criterion
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.
…

[2019] AATA 5838

30 June 2019

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction