1612380 (Refugee)

[2019] AATA 5739

1612380 (Refugee) [2019] AATA 5739 (12 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612380

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Nathan Goetz

DATE:12 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 12 June 2019 at 11:09am

CATCHWORDS

REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh National Party – family inheritance dispute – physical assault – political activities in Australia – fear of killing – false legal proceedings – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 424, 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

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

2. [In] December 2015, [the applicant] (born [in specified year]), his [wife] (born [in specified year]) and their two children [names and dates of birth] arrived in Australia on visitor visas from Bangladesh. They subsequently applied for protection visas on 26 January 2016.

3. The protection visa applications were refused on 29 July 2016 and on 9 August 2016 the applicants applied to the Tribunal for a review of the refusal decision. The applicants attached a copy of the delegate decision to their review application form.

4. On 18 September 2018, the applicants appeared before the Tribunal to give evidence and present arguments. They were assisted by a Bengali interpreter and their migration agent [was] present.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.  

9. 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

10. 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

11. The Tribunal is satisfied that [the applicant] is the husband of [his named wife] and that they were married on [date]. The Tribunal is satisfied that they are the parents of [their named son] and [daughter]. The Tribunal accepts that all the applicants are members of the same family unit.

12. The Tribunal is satisfied that the applicants are citizens of Bangladesh and that there is no evidence that they hold citizenship of any other country, or have a right to enter or reside in a country other than Bangladesh. Therefore the country of reference for this application is Bangladesh.

13. At the start of the hearing, the applicants confirmed that the contents of their written protection visa applications were true and correct. They told the Tribunal that they obtained the protection visa forms themselves from the internet, completed the forms as a family, and then gave them to their migration agent.

14. Although all applicants completed their individual ‘Part C’ forms as part of the protection visa applications, their claims were all contained in [the applicant] written protection visa application. The other applicants wrote for the decision maker to refer to his application when assessing the claims.

    Claims raised in the written protection visa application

15. According to the written protection visa application, [the applicant] is a politician and a businessman whose party is the Bangladesh Nationalist Party (BNP). He has been involved in politics for a long time and from an early age. His late father was a member of the BNP and passed away in [specified year].

16. [The applicant] used to study at a government institution in Bangladesh, and it was here that he was introduced to a leader of the BNP named [who] later became a Minister in the Bangladeshi Government. [The applicant] wrote that he had to stop going to school because he had issues with other political parties.

17. [The applicant] also calimed that he had a collision with a Bangladesh Awami League leader which resulted in a criminal case being filed against [the applicant]. As a result, a warrant was issued against [the applicant] in 1980 by police. [The applicant’s] father was worried so [the applicant] was moved to [a named town] to live with his grandparents. This was four hours away from where he lived in Moulvibazar.

18. After a week living with his grandparents, police visited the family home in Moulvibazar and looked for him. [The applicant’s] father then found a broker who helped send people abroad and [the applicant] then went to [Country 1] in December 1980. After four years there, [the applicant] was advised by his family that he could return to Bangladesh because the case against him had been withdrawn as a result of his father paying money.

19. When [the applicant] returned to Bangladesh in [year], he got married but then returned to [Country 1] because his father did not want him to get into any more trouble and because [the applicant] could not continue his study in Bangladesh. He travelled between Bangladesh and [Country 1] until 1996, when he managed to take his family to [Country 1], and established his own businesses, notably a [product] business and another business in [a named city]. He wrote that he also got involved in the Bangladesh National Party [in Country 1] and used to attend meetings and seminars in [Country 1] with that group. Although the businesses were [the applicant’s] own businesses, he was sponsored in [Country 1] under the kafala system which requires unskilled laborers to have an in-country sponsor, usually their employer, who is responsible for their visa and legal status. [The applicant] was a successful businessman who eventually managed to establish three shops. [The applicant] noted that many people were jealous of his success and those people, together with his sponsor, removed him from [Country 1]. He returned to Bangladesh with his family in 2002 and started a business named [name].

20. [The applicant] claimed that he joined the [District 1] branch of the Bangladesh Nationalist Party in 2003 and was regularly attending meetings and seminars. In 2004, [the applicant] claimed that he had an argument with [an official] of [the district] who was a member of the Awami League. The [official] filed a case against [the applicant] and a warrant was issued against him for protesting in a gathering against the Awami League. [The applicant] then left Bangladesh and returned to [Country 1] where he stayed until 2008. He returned to Bangladesh in 2008 when the case against him vanished and he resumed his [business].

21. Upon his return in 2008, [the applicant] was welcomed back to [District 1] and was planning to become chairman in his local village and to participate in the election, but decided to step back so his friend,  [a] childhood friend, could become the village chairman. [The applicant] then decided to work together with his friend, which resulted in his friend being elected as village chairman.

22. [The applicant] wrote that in 2009, he was given lots of threats to not attend any seminars or meetings in [District 1] from the Awami League, but he carried on doing so.

23. In February 2011, [the applicant] wrote that he was attacked by strangers. It was nighttime and [the applicant] was returning home after attending a meeting with [the] chairman and the [official] of [District 1]. [The applicant] wrote that he was attacked by a few motorcyclists in the middle of the road. He wrote that he was beaten and received [an injury] which cannot heal properly. The attack resulted in [the applicant] being left alone on the street. An autorikshaw driver found [the applicant] and took him to the hospital. [The applicant] was hospitalized for one month but was bedridden for at least 15 months because of his [injury]. He wrote that he identified that the attackers were from the Awami League. Later, a family member tried to file a case against the boys but the police did not take the case because the police work under a man named [Mr A] and he had paid them money to not do so. [Mr A] is an Awami League leader and the boys who attacked [the applicant] also work under [Mr A]. [The applicant] noted that during the 15 month where he was on his bed with [his injury], his business suffered.

24. [The applicant] wrote that in early 2013, while he was operating his business as usual, he had lots of threats from other people. In June 2013, police filed a case against [the applicant] and a few of his friends on a charge of protesting outside the [District 1] Police station against the Government. Later, that case was withdrawn by the police because the case involved more than 100 people in [District 1]. In June 2014, [the applicant] travelled to [Country 2] to attend a few BNP seminars [and] left there in October 2014 to return to Bangladesh. [The applicant] decided that he would take part in the election in March 2016 to be the chairman of [an organisation].

25. It was claimed that in February 2015, [the applicant’s] son [had] an argument at a college meeting and was beaten by the Bangladesh Chatra League (the youth wing of the Awami League) because of [the applicant’s son’s] support of the Bangladesh Jatiobati Chatra Dal (the young wing of the BNP). [The applicant’s son] was threatened over the phone and he stopped going to college because he was fearful. Particularly, [the applicant’s son] was threatened over the phone that he would disappear if [he] returned to his college and participated in youth wing activities again. After receiving that threat, [the applicant] took his son to [Country 3] for a few days. Despite [the applicant] wanting to leave his son in [Country 3], [his son] did not want to be left alone, so they both returned to Bangladesh. [The applicant’s son] did not return to [District 1] but instead stayed at a hotel in Dhaka. [The applicant’s son] remained there until the family left Bangladesh.

26. In August 2015, [the applicant] started to promote himself in anticipation of an election for Chairman which was due to be held in March 2016, as his friend (whom he stepped aside for) indicated that he would not participate in the election. [The applicant] started to make leaflets, gathering supporters and called for a meeting. A meeting was held in September 2015 in the [District 1] office and [a named leader] was present. An MP [was] due to attend the meeting but he could not because he was in jail at that time. At the end of the month, [this] MP was released from the [jail]. [The applicant] wrote that the day after the MP’s release, he was reading a newspaper and saw a photo of his son with the MP as he was being released from jail. [The applicant] was concerned that his son had travelled from Dhaka to see the MP.

27. In October 2015, [the applicant] had a telephone call from an unknown number advising him that he should not participate in the chairman election on March 2016. He was threatened that a criminal case would be filed against him if he did so. [The applicant] went to the police station because of the threat, but as the threat came from a private telephone number, the police could not do anything and did not file a case.

28. [The applicant] wrote that he continued to carry on his work for the promotion of the election, but by the end of November 2015, he received another threat over the phone. He was told that he needed to stop holding meetings or engaging with promotions or he would ‘disappear’. [The applicant] wrote that he did not take this threat seriously. However, about a week later after this threat, [the applicant] was attacked at night while he was travelling home on his motorbike. He wrote that a [van] stopped and six people came out the van. One of the attackers took [the applicant’s] motor bike, four held him down, and one of the attackers asked why [the applicant] had not listened to them when he was told to stop participating in the election. [The applicant], fearing that the situation could become worse, told the attackers that he would stop doing what he was doing. One of the attackers said that they should kill [the applicant], while another said that this is not the time to do so, because they had been told by their boss not to kill [the applicant]. There was an argument between the attackers, but they eventually left when they saw an approaching vehicle. The attackers took the applicant’s money and mobile phone and escaped in their vehicle, telling [the applicant] that it was his last time that they had gifted [him] his life, and that [the applicant] should be ready to die soon. [The applicant] wrote that he got really scared by this threat.

29. In December 2015, [the applicant] came to know that a case had been filed against an opposition leader, and [the applicant] realised that these type of cases were filed by the police themselves. These type of cases were in fact, cases filed on behalf of the government. [The applicant] knew that if he was also charged, he would not be given bail and that this would be an attempt to ensure that [the applicant] did not participate in the election. [The applicant] stated that his life had become more dangerous now, especially in light of the fact that is son [could] now no longer attend college.

30. [The applicant] also claimed that his daughter was threatened in November 2015. [The applicant] wrote that his [daughter] told him that someone stopped her on the way back home from school and threatened to take her away. The person also told his daughter that she should tell her dad not to send her to school anymore if she wants to save her life. [The applicant] wrote that with this fear, he took his daughter to school every day during her exam period (which was the middle of November) but otherwise stopped her going to school. Her exam results came out in December. [The applicant] wrote that he spoke to his daughter’s school principal and asked for help, but the principal said that they could not do anything apart from help her in school.

31. [The applicant] wrote that he did not think of anything other than saving his family’s life. At the time, [the applicant] and his family already had visitor visas to travel to Australia for a holiday, so they left Bangladesh [in] December 2015 without telling anyone.

32. [The applicant] wrote that he was scared to go back to Bangladesh as he came to know that his persecutors were trying to file new cases against him. He wrote that he was a hardworking man who never felt as much fear as he did now. He wrote that he had spent his life struggling, and he himself could not continue to study, and now his children were in the same situation as they were being threatened by political opponents. [The applicant] wrote that he also came to know that a friend of his son had been arrested a few days ago and could not be bailed. [The applicant] wrote that he was lucky that his son was in Australia because he would have also been arrested if his son were in Bangladesh.

33. [The applicant] wrote that the present situation in Bangladesh was not stable at all. The Awami League are in charge of the country and do not give a fair opportunity to BNP leaders. Instead, they hang BNP leaders and are trying to rid the BNP from Bangladesh. [The applicant] wrote that this impacts on the applicants lives because all power in given to the Awami League.

34. [The applicant] wrote that if he was to go back to Bangladesh he knew he would, like other members of the BNP, be arrested, killed or disappear. [The applicant’s] children will not be educated and risk being assaulted by people, as well as [the applicant’s] family member. [The applicant] wrote that he knew that his brother is against him because he wanted to remove [the applicant] and get all [his] property.

35. Noting that there have been large numbers of disappearances of BNP people, [the applicant] said that this too could happen to him. [The applicant] wrote that he was really sad that the people he loves, namely his fellow Bangladeshi, are trying to take his life away. He wrote that he played a huge role in the development of politics in his local village and that people hated him and wanted to take his life.

36. It was claimed by the applicants that there is a huge threat on the life of [the applicant] and that of his son. [The applicant’s son], despite his young age, had gotten involved with politics and as a result his life had been threatened. Similarly, [the applicant] noted that his daughter is young and stopped going to school because she was threatened because of [the applicant’s] role as a politician who fought for the truth. [The applicant] wrote that he knew that the leader of the Bangladesh Awami League would never give anyone justice, nor would there ever be a fair election. The Awami League will stay in power and destroy the BNP.

1. [The applicant] wrote that he left Bangladesh not to get a better life, but rather for he and his family to live. He wrote that he thought that the situation in Bangladesh would get stable and that it would be good for him to go back to Bangladesh. However, after one month he knew that his life was being threatened in Bangladesh and that many opposition leaders wanted to jill him. [The applicant] wrote that he felt like the whole of Bangladesh was against him, but he knows he has never done anything wrong in his entire life, that he is pure in heart, and always supported a true political party. He wrote that he did not know what would happen in Australia but was sure that he and his family would stay alive here. He noted that he could have died on the night when he was attacked. [The applicant] wrote that he left everything behind, such as his business, his property and his country to save his life and the lift of his family. He wrote that if he and his family returned to Bangladesh, his enemies would kill him or his family.

2. The applicants attached six photographs of [the applicant’s son] taken in Bangladesh with a BNP politician.

3. The written protection application disclosed that [the applicant] has travelled to the following places in the last thirty years:

   · [1980] to [2008]: [Country 1]

   ·    [specified dates in] 2010: [Country 4]

   ·    [specified dates in] February 2014: [Country 4]

   ·    [specified dates in] March 2014: [Country 3]

   ·    [specified dates in] April 2014: [Country 4]

   ·    [June] 2014 to [October] 2014: [Country 2]

   ·    [specified dates in] October 2014: [another country]

   ·    [specified dates in] 2015: [Country 4]

4. The written protection application disclosed that [the applicant’s son] had never travelled to any country other than Australia in the last thirty years

   Additional material submitted to the Tribunal

5. Prior to the hearing, under an email of 3 September 2018, the applicants submitted a statement of claim by way of statutory declaration from [the applicant] dated 30 August 2018. This statutory declaration contained the same claims as [the applicant’s] original statement, but put organised them in a statutory declaration.

6. On 15 September 2018, under an email of 15 September 2018, the applicants submitted the following documents with the migration agent noting that [the applicant] had provided some pictures that he took while he anticipated in a protest [in] Sydney in April 2018. The email also attached two reference letters from the BNP leaders of the [District 1] district in Mulvibazar, and a reference letter from the BNP in Australia, as well as a copy of [the applicant’s] membership receipt for the BNP in Australia.

   FINDINGS AND REASONS

7. The issue in this case is whether the applicants meet the ‘refugee’ criteria or the complementary protection criteria. The Tribunal also needs to consider whether any of the applicants are members of the same family unit as a person who meets the criteria for a protection visa.

8. The Tribunal is satisfied that [the applicant] is the husband of [his named wife] and that they were married on [date]. The Tribunal is satisfied that they are the parents of [their son] and [daughter]. The Tribunal accepts that all the applicants are members of the same family unit.

9. The Tribunal is satisfied that the applicants are citizens of Bangladesh and that there is no evidence that they hold citizenship of any other country, or have a right to enter or reside in a country other than Bangladesh. Therefore the country of reference for this application is Bangladesh.

10. Having considered the matter, the Tribunal has concluded that the decision under review should be affirmed for the following reasons:

    Oral Evidence given to the Tribunal - [the applicant]

    Property dispute

11. [The applicant] told the Tribunal that he could not return to Bangladesh because there was a property dispute with his [brother]. The dispute concerned [the applicant’s] parents’ home and land which is located in [District 1 within] Moulvibazar District, Bangladesh. The family home was located in the same village as where [the applicant] lived, but was approximately 5km away from the home he was renting with his family.

12. When his father died in [year], his father’s share in the property passed to [the applicant’s] mother, although all siblings were continuing to use the property to obtain crops. [The applicant] told the Tribunal that after his mother died in [year], he did not get his expected portion of the land. He explained to the Tribunal that while [his] mother was sick, his [brother] got the house (which was registered to his mother) transferred into [his own] name. This transfer was witnessed by [the applicant’s] maternal uncle. This was in conflict with the plan to share the property among the siblings. [The applicant] told the Tribunal that he received a half share in another house which was abandoned on that property, which [the applicant] sold before he came to Australia. His evidence about the sale date varied from initially telling the Tribunal that he sold his share in either September or October 2015, before telling the Tribunal it was in December 2015. He told the Tribunal that the rest of his siblings all got a portion and did not complain about the share they received. The remaining share of the house was shared between an [his brothers].

13. The Tribunal questioned why this property dispute was still an issue for [the applicant]. He told the Tribunal that he kept on getting threats from his [brother’s] companions because [the applicant] was thinking about taking this matter to court. The last time he was threatened was at the end of September 2015 when his brothers’ friends threatened [the applicant] over the telephone. The person on the telephone also threatened [the applicant’s] children. [The applicant] said that he went to the local police station to report the threat, but that the case was not taken because the police were under the ‘influence of people’. [The applicant] also told the Tribunal that these people had also threatened his daughter because of the property dispute.

    Bangladesh Nationalist Party

14. [The applicant] told the Tribunal that he was involved in the BNP in Australia. He became involved with that organisation [in] December 2015. He did not hold any positions within the organisation. He was a regular member and attends meetings. He did not provide a receipt of his membership of the BNP in Australia with his protection visa application because he did not realise it was important to submit that document. He confirmed to the Tribunal that the photographs he had submitted to the Tribunal were from when the Bangladesh Prime Minister came to Australia in June 2018.

15. [The applicant] told the Tribunal he was familiar with the BNP party flag. When questioned about the BNP party flag, [the applicant] told the Tribunal that the star symbolised that the BNP was a genuine party and the ‘number one party’. He told the Tribunal that the colour red on the party flag symbolised the blood shed during the civil war in Bangladesh, and that green represents the country of Banglaesh. He told the Tribunal that he had always known what the red and green symbolised as he had learned this when he joined the party in 1979/1980. [The applicant] was asked what it was that attracted him to the BNP and he told the Tribunal that the party relies on fairness and justice. He said that the party leaders guided the country on the right path. The Tribunal asked [the applicant] whether he knew anything about the policies or philosophies of the BNP and he responded that the BNP believes in Bangladesh, democracy and ‘all about that’.

16. The Tribunal asked [the applicant] whether he knew about the 19 Point Plan of the BNP and he indicated that he did. The Tribunal asked [the applicant] if he could tell the Tribunal about the plan. [The applicant] told the Tribunal that the 19 point plan was about democracy, a belief in God, fairness and justice, prioritising the agricultural sector, providing his country with food, ensuring clothing production, eradicating illiteracy, providing healthcare for country people, making friendships with other Muslim countries, giving rights to women, protecting all citizens regardless of race or religion and developing labour groups. He told the Tribunal that he first learned about the 19 Point Plan when he first started with the BNP.

17. When asked why he left Bangladesh in December 2015, [the applicant] told the Tribunal that he was getting threats from the Awami League and he was being told not to stand for election as local chairman. He was being threatened by party people. He told the Tribunal that he was attacked in 2012 and was warned that this would be repeated. He was told that it would be worse than what happened to him in 2012. [The applicant] told the Tribunal that it was in October 2015 that he received this threat over the phone. He knew it was people associated with [Mr A’s] group. When asked how he knew it was people associated with [Mr A’s] group, he said he believed that this was the case because they were the people making trouble for him. [The applicant] also told the Tribunal that his daughter had been threatened and was told that [the applicant] should not participate in the upcoming election.

18. [The applicant] was asked whether anything else happened to him, and he said that in November 2015 he was attacked. He told the Tribunal that the attack happened at night while he was riding on his motorbike and was stopped by a group of four men. He was threatened but told he would be given one more chance, and that the next time he would be killed. [The applicant] told the Tribunal that these threats were made because he was planning to contest the election in his local area and they were threatening him to withdraw his candidacy. He said he was really scared.

19. [The applicant] said that an incident in February 2012 still haunted him. He told the Tribunal that he was attending a party meeting in [his district] and after it finished, he was attacked while he was on a motorbike. He fell down and was taken to hospital. He was attacked on this occasuion because he had participated in a party meeting. He attributed this attack to people acting on behalf of [Mr A]. Before this incident in February 2012, he told the Tribunal that he had never been attacked like that ‘significantly’. The Tribunal attempted to ascertain what [the applicant] meant by that. He said that he had been attacked as a group in the past. The Tribunal asked him to be specific and he told the Tribunal that he had been through a lot of trauma, operations and it was hard for him to recall a lot of things. He told the Tribunal that the last attack he had when he was in a group was maybe 2011 or 2012, but he could not remember.

20. The Tribunal noted to [the applicant] that, according to his application, he had travelled extensively outside of Bangladesh. The Tribunal asked [the applicant] why he would return to Bangladesh given what he claimed happened to him. [The applicant] stated that he went overseas in 2013 and 2014 after he had been attacked. He told the Tribunal that he never sought to remain in [Country 4], [Country 3] or [Country 2]. The most recent visit to [Country 3], where he travelled with his son, resulted in him staying for a week to make enquiries about enrolling his son in an educational institution but that did not happen. In regards to his trip to [Country 2], [the applicant] told the Tribunal that did not make any attempt to stay in [Country 2] because during that time he was not in a position to do so because the situation in Bangladesh was not that terrible at that time.

    Concerns – Credibility

21. The Tribunal raised [the applicant] its concerns that it had about his protection visa application utilising s.424AA of the Act.

22. The Tribunal was very concerned about his numerous trips to and from Bangladesh. In the Tribunal’s view, it was incredulous that [the applicant] would return to Bangladesh if he or his family had been harmed, or were threatened with harm as he claimed. [The applicant’s] response that the situation was not that serious at the time of his trips, but that the last incident forced him to leave the country. Given that [the applicant] has claimed that he was kidnapped by strangers in February either 2011 or 2012, has had numerous false cases made against him which appeared to be made arbitrarily made and withdrawn, and that he left for [Country 3] with his son because of a threats made to his son, [the applicant’s] claim that that the situation at the time was ‘not serious’ is not believable. [The applicant] returned to Bangladesh after leaving that country to escape those threats. To the Tribunal’s way of thinking, the constant return to Bangladesh is not consistent with [the applicant’s] claimed fear of harm.

23. The Tribunal was very concerned about the fact that [the applicant] gave inconsistent evidence about the year he was first attacked by a group of strangers while he was on his motorcycle. In the written protection visa application, he wrote that it occurred in February 2011. In his oral evidence to the Tribunal his evidence was initially that the attack occurred in February 2012, but he later changed this evidence to February 2011 when the Tribunal asked him when it was that he was attacked by a group of people. The Tribunal viewed this shift in the evidence as very suspicious and it suggested to the Tribunal that the attack may have been fabricated. [The applicant] responded that he could not recall the date of the attack but that 2011 was the correct year. [The applicant] told the Tribunal that it was very hard to recall everything. The Tribunal struggles to accept that [the applicant], who has experienced harm such as a group attack, which he cites as one of the reasons he could not return to Bangladesh, would mistake the year of the attack.

24. The Tribunal was also very concerned about the evidence [the applicant] gave to the Tribunal about [his] travel to [Country 3] with his son. [The applicant’s] protection visa application disclosed that he travelled to [Country 3] [in] March 2014 and remained there until [date]. The passport that [the applicant] produced to the Tribunal (which was issued in February 2014) discloses that [the applicant] entered and left [Country 3] on [specified dates in] August 2015 respectively. The oral evidence that [the applicant] provided to the Tribunal for his reason for travel to [Country 3] was because his son was assaulted, and he sought to take his son away from the situation. However, if that assault happened as claimed in the written application (February 2015), then it would not be possible for [the applicant] and his son to travel in March 2014 to avoid this harm. While the Tribunal notes that the chronology of events would be consistent with travel in August 2015, the fact that [the applicant’s son] initially gave oral evidence to the Tribunal that he had been physically attacked only on two occasions (one when he started in College in [earlier year], and the second time being one month after that first attack), clearly undermines the claim that in February 2015 there was any attack on [the applicant’s son], and that [the applicant] and [his son] travelled to [Country 3] as a result of this attack. The Tribunal raised with [the applicant] that his alleged travel to [Country 3] in 2014 (bearing in mind, that was his evidence in the written protection visa application) was inconsistent with his son being harmed in February 2015. [The applicant’s] response was that the dates might be written as such in the statement, but he could not recall accurately. The Tribunal was troubled by [the applicant’s] flexible approach to dates, especially given that [the applicant] (and indeed all the family) gave evidence that they had completed the forms themselves together, and then handed them to the migration agent. It is very suspicious that [the applicant] would get the date wrong for his travel to [Country 3], especially when he had his passport with him at the time he completed the written protection visa application. The Tribunal does not accept that [the applicant], who told the Tribunal that he and his family had completed the forms themselves, would put down incorrect dates in his protection visa application for any reason other than to provide confusing evidence that he hoped he would be able to benefit from, as it would allow him to not be pinned down to particular dates. The Tribunal’s view of the inconsistent evidence about the travel dates undermines the claim that he travelled with his son to [Country 3] for the purpose claimed.

25. The Tribunal was also concerned when [the applicant] gave his oral evidence to the Tribunal that he did not mention that he had become aware of a new case being filed against him, as was contained in the written protection visa application. In the Tribunal’s view, the failure for [the applicant] to raise this claim (being in mind, this is a reason cited by [the applicant] for why he cannot return to Bangladesh), was very concerning. [The applicant’s] response for the failure to raise this evidence was that after his operations and traumas, it was hard for him to give a consistent account to the Tribunal. There is nothing before the Tribunal to suggest that [the applicant] has had operations that have resulted in him losing memory, nor anything to suggest that his alleged trauma has resulted in him being unable to recall information. In contrast, [the applicant], in his oral evidence, was able to be specific when it came to particular details.  It was only when he was challenged on particular evidence, such as the dates about incidents of assault and his travel, that he suggested he could be mistaken in the evidence he gave because of trauma, the passage of time, or confusion because there had been multiple incidents. The Tribunal does not accept [the applicant’s] explanation about why he failed to raise with the Tribunal his the claim that a new false charge had been made against him. The Tribunal is satisfied that [the applicant] failed to raise this claim because it was not true.

26. The Tribunal was also concerned about [the applicant’s] evidence about his involvement with the BNP. The Tribunal struggles to accept that [the applicant], who has been a supporter of the BNP for a long time, would not be able to tell the Tribunal accurately about the 19 Point Plan of the BNP. His evidence on the plan was very broad, in some instances repetitive, and incomplete. It is incredulous for the Tribunal to believe that [the applicant], who was to run for the chairmanship of his local area as a BNP candidate, has been involved with the BNP in both Bangladesh and Australia, and has comes from a family of BNP supporters, would struggle to tell the Tribunal about something as basic as the BNP’s founding principles. The Tribunal notes that [the applicant] was able to tell the Tribunal some things about the plan, but the oral evidence was in some part repetitive and, in the Tribunal’s assessment of the oral evidence, appeared to be the product of rehearsal, and not of a genuine belief or commitment to those principles.

27. Further, the Tribunal was concerned by the oral evidence that [the applicant] gave to the Tribunal about the meaning behind the Green and Red colours of the BNP flag. In his oral evidence, [the applicant] told the Tribunal that the red represented blood shed during the civil war and green represented the country. [The applicant] told the Tribunal that he learned this when he joined the BNP in 1980. This was in contrast to the evidence given by [the applicant] to the delegate, where [he] said that the colour green describes ‘everything’ and the colour red describes ‘everything’. [The applicant] responded to this concern by stating that he could not remember what he told the delegate in the past, but that what he had told the Tribunal was accurate. In the Tribunal’s assessment of the evidence, [the applicant] learned the meaning of the colours after his interview with the delegate in an attempt to persuade that Tribunal that he was a committed BNP supporter and to remedy deficiencies in his previous evidence. In stands to reason that [the applicant] did not learn the meaning behind the flag colours in 1979 or 1980 as he claimed to the Tribunal, but subsequent to the delegate interview. In the Tribunal’s assessment of [the applicant’s] credibility as a witness, he adapts his evidence in an attempt to be more persuasive.

1. The Tribunal also raised with [the applicant] the evidence that was given by his daughter [named] about what was said to her in November 2015 when she was allegedly threatened. [The applicant’s] oral evidence to the Tribunal was that his daughter was threatened and she was told that her father should not participate in the election. [The applicant’s daughter’s] evidence was that the only thing she had been told was that her father should not allow her to go to school and if she did so, they would kill her.  [She] told the Tribunal that the people who said this to her in 2015 did not say anything else to her, and that this was the only time she was threatened. [She] told the Tribunal that she told her father what they had said to her after she came home from school, as did [the applicant]. In the tribunal’s assessment of the evidence, there can be no explanation for such vastly different accounts of what was said by the group of four men to [the applicant’s daughter]. The Tribunal notes that [the applicant’s daughter] raised no comment to the Tribunal’s observation about the inconsistency in this evidence, while [the applicant’s] response was that his daughter had told him that she was told not to go to school, as well as being told that her father should not participate in the meeting/election. [The applicant] said later that his daughter probably forgot about this. The Tribunal does not accept the explanation for the marked different between this evidence. In the Tribunal’s view, this evidence was inconsistent because the claim that [she] was threatened on her way to and from school was fabricated by the applicants as a means of claiming protection.

2. The Tribunal noted to [the applicant] that it was required to disregard under r.91(3) of the Regulations any conduct that he had had engaged in Australia unless [the applicant] satisfied the Tribunal that this conduct was not done solely for the purpose of strengthening his protection claims. The Tribunal raised with [the applicant] its concerns that the letters he provided from the BNP in Bangladesh (produced in 2018), together his party membership in Australia (2015) had not been provided as part of his original written protection application. [The applicant] told the Tribunal that he only recently got the letters from his local area because there was no one to help him. In regards to the membership receipt, he told the Tribunal that he did not realise it was important to submit this to the department with his written protection visa application. The Tribunal notes the oral evidence from [the applicant] that he became involved with the BNP in Australia [in] December 2015, that he went to a meeting ‘a few days ago’, and that on some occasions the BNP meet at [a location]. When asked whether he did anything other than attend meetings with the BNP in Australia, [the applicant] said he did not.

3. The Tribunal was also concerned by [the applicant’s] oral evidence about the property dispute with his brother. [The applicant’s] evidence was that his parents had a house and land all together in [District 1] and that his parents jointly owned the property. When [the applicant’s] father died in [year], his father’s share passed to his mother. [The applicant’s] mother died in [year]. [The applicant’s] evidence about what transpired with the property was vague and confused. He told the Tribunal that his father’s share passed to his mother, but then told the Tribunal that this property was not transferred to his mother, but instead remained under his father’s name. The Tribunal queried how this could occur given that his father passed away. [The applicant] said that the family would need to go to court for family members to work out sharing of the portion. The tribunal asked whether [the applicant] did anything about this in [the year] when his father died and he said that he did not because at the time, his mother was alive and they were sharing in the property because his [brother] remained in Bangladesh and [the applicant] was overseas. [The applicant] told the Tribunal that he was in Bangladesh in [year] when his mother died and that the siblings had decided to share the land amongst themselves. He told the Tribunal that he did not get his expected portion that he had some disputes, could not succeed in his getting his expected portion, and gave up.

4. The Tribunal asked what portion of the property [the applicant] was entitled to. He told the Tribunal that the house was under his mother’s name, but before she passed away his brother got the house registered under his name. As a result, [the applicant] got less than he was expecting. The Tribunal again tried to ascertain what property [the applicant] was entitled to and he told the Tribunal that there was another abandoned house that he got half of, and he sold it and came to Australia. [The applicant] told the tribunal that the rest of his siblings were overseas and as they got their portion they did not complain. [The applicant] told the Tribunal that he got the allocated portion of the property in June 2015 and that he sold it in September or October 2015.

5. The Tribunal queried why, if the portion of the property that [the applicant] had received was sold by him, there would still be an issue between his brother and [the applicant]. [The applicant] told the Tribunal that he still had issues with the main house and the main land. The Tribunal queiries wy this would mean that he could not return to Bangladesh and [the applicant] told the Tribunal that he was still getting threats from his brother’s ‘people’ and got threats in September 2015. The Tribunal asked who threatened him and [the applicant] said it was his brother’s ‘companions’. [The applicant] said that he was thinking of going to court for further action and just gave up. The Tribunal wanted to know specifically who threatened [the applicant], and [his] evidence was that it was ‘party people’ and ‘some other friends’. He told the Tribunal that he got those threat over the phone and was not sure of the names. He told the Tribunal that his brother was using other people to do this. The Tribunal queiries why [the applicant’s] brother would threaten him when, according to [the applicant’s] evidence, his brother had obtained his share of the property. [The applicant] stated that his brother wanted to stop him so that [the applicant] would not return to Bangladesh and claim the property from him. [The applicant] confirmed that he did not file any case against his brother for those threats because of the threats made to his daughter, so he sold his portion and came back to Australia without letting anyone know. [The applicant] said that he was threatened on the telephone that if he filed a case against his brother in respect of the property, the consequences would not be good for him. His children were also threatened. [The applicant] told the Tribunal that these people had already threatened his daughter. His daughter was told that her father should not file a case in relation to the property dispute in November 2015. [The applicant] confirmed that this was the same conversation where [the applicant’s daughter] had been threatened for attending school, and the same conversation where she was told that her father should no longer participate in politics. The Tribunal notes that [the applicant’s daughter] gave evidence that the only thing which was said to her was that she was threatened to be killed if her father did not stop her attending school.

6. The Tribunal was perplexed by the evidence that [the applicant] gave about threats to his daughter. He confirmed that the threat made to his daughter in November 2015 related to the property dispute. However, that was not the evidence given by his daughter, nor the claim as outlined in the written protection application. The Tribunal noted to [the applicant] that the evidence appeared to change throughout the hearing. [The applicant] told the Tribunal that his daughter told him that she was told not to go to school anymore and that she was also told that her father should not be participating in politics. The evidence provided to the Tribunal about the threats to [the applicant’s daughter] was inconsistent and the Tribunal finds that [the applicant] attempted to change the evidence about what the threats were related to in an attempt to make the claims more credible. In the Tribunal’s view, [the applicant] has demonstrated a flexible approach in giving evidence to the Tribunal and will change his evidence in an attempt to be more persuasive. The Tribunal’s view of [the applicant’s] evidence is that he understood the Tribunal’s questioning about the property dispute to be leading to a conclusion that the Tribunal would not accept that there was a property dispute, or that if there was a property dispute, it was not an ongoing concern. Accordingly, [the applicant] sought to link the alleged threats to his daughter to the property dispute, and not just his political activity.

7. There was also inconsistent evidence provided by [the applicant] about the sale of the portion of the property that he held. He initially told the Tribunal that it was sold in September or October 2015, and then told the Tribunal that it was sold in December 2015. This inconsistency was raised with [the applicant] who told the Tribunal that the sale paperwork started and he received the deposit, but that the sale was finalised in November/December 2015. Again, in the Tribunal’s assessment of the evidence, [the applicant] changed his oral evidence in an attempt to provide a timeframe where threats were made against his daughter while the property issue was ongoing. The Tribunal’s view is that [the applicant’s] evidence about the property dispute was inconsistent, confused, vague and was shifted in an attempt to fit into a narrative that linked the threats made to his daughter with the property dispute with his brother.

8. The Tribunal is not satisfied that [the applicant] is a witness of truth. Having noted the concerns that the Tribunal has with [his] evidence, the Tribunal is not satisfied that [the applicant] has a property dispute with his brother, nor that there were any threats resulting from this property dispute. In the Tribunal’s view of the evidence, it was a nonsense to suggest that [the applicant] would liquidate his portion of the property holding if there was some sort of dispute between [the applicant] and his brother. It is also incredulous for the Tribunal to believe that [the applicant] would be threatened by his brother, or people acting on behalf of his brother, when it would appear (if the Tribunal were to accept the evidence of [the applicant]) that his brother has been successful in obtaining the property. There would be no incentive for his brother to make any threats to [the applicant] because the property had already been transferred to his brother. The inconsistent evidence about the threats made to [the applicant’s] daughter and whether those threats were related to the property dispute, when considered in light of the other concerns that the Tribunal has with [the applicant’s] evidence, leave the Tribunal in a position to reject the claims related to the property dispute in their entirety. The Tribunal is not satisfied that any threats have been made to any of the applicants in connection with the property dispute. The Tribunal is satisfied that the claims were invented for the purpose of claiming protection in Australia.

9. The Tribunal similarly finds that [the applicant] is not a witness of truth when it comes to allegations of past harm in Bangladesh because of his political opinion. When assessing the evidence, the Tribunal is not satisfied that [the applicant], who could not tell the delegate correctly what the red and green colours stood for in the BNP party flag, was unable to tell the Tribunal about the 19 Point Plan for the BNP, gave inconsistent dates about the year of his first group assault, and had travelled extensively in and out of Bangladesh since 1980, was involved in the BNP as claimed. The Tribunal rejects [the applicant’s] allegations of past harm in Bangladesh, rejects the claim that he left Bangladesh at any time because of a fear of harm to either himself or his family, and, given the credibility concerns that the Tribunal has about [the applicant], finds that the letters of support which suggest that he was involved in the BNP in Bangladesh were fabricated. Given the concerns that the Tribunal has about [the applicant] not being a witness of truth, it follows that the Tribunal is not satisfied that [the applicant] has ever been the subject of ‘false cases’, that he has ever been threatened, directly or indirectly with harm by any person.

10. As noted earlier in the decision, the Tribunal was troubled by [the applicant’s] travel in and out of Bangladesh since 1980. The Tribunal was concerned that [the applicant] made no attempt to remain in [Country 2] in 2014, and voluntarily returned to Bangladesh at the conclusion of his trip. Similarly, [the applicant] voluntarily returned to Bangladesh at the end of his trip to [Country 3] in 2014 (or 2015) with his son. In the Tribunal’s assessment of the evidence, it is unreasonable to think that [the applicant] would do so, given his claims about the group attack on his person in either 2011 or 2012, the ongoing threats against [the applicant] as claimed in his written protection application (and his subsequent statutory declaration provided to the Tribunal, and in relation specifically to the [Country 3] travel (accepting for the sake of argument that the travel to [Country 3] occurred in August 2015), that he and his son would voluntarily return to [Country 3] after the beating in February 2015. The Tribunal does not accept [the applicant’s] evidence that he did not see about remaining in [Country 2] because the situation was not that bad at the time, nor does it accept that he did not seek to remain in [Country 3] because his son did not want to remain there by himself, nor that they were unsuccessful in obtaining him a place at an educational institution. In the Tribunal’s assessment of the evidence, if [the applicant] and his son were harmed as they had claimed, they would not have voluntarily returned to Bangladesh at the conclusion of those trips.

11. When turning its mind to [the applicant’s] conduct in Australia regarding his political activities with the BNP, the Tribunal accepts that there is a membership receipt, and photos of [the applicant] present at a protest [sometime] in 2018. The Tribunal does not accept that [the applicant], for the reasons outlined, is a bona fide supported of the BNP. On the contrary, the Tribunal’s view is that [the applicant] claimed protection and then sought to involve himself with the BNP in Australia as a means of generating a protection claim. The Tribunal is not satisfied that the conduct engaged by [the applicant] was done for any purpose other than strengthening his protection claim, and that of his family. The Tribunal disregards that conduct for the purpose of considering whether [the applicant] meets the ‘refugee criteria’, but still must consider whether his conduct in Australia would mean that [the applicant] met the ‘complementary protection criteria’. The Tribunal has had regard to the evidence before it; namely membership of the BNP in Australia, and photographs of [the applicant] attending a [protest]. The Tribunal, noting its concerns about [the applicant’s] truthfulness as a witness, is not satisfied that [the applicant] attends any meetings of the BNP in Australia, or that he is otherwise involved in the BNP in Australia. There is nothing before the Tribunal to suggest that as a result of [the applicant’s] activities in Australia, namely being a member of the BNP in 2015, or attending a protest in 2018, that he will be of any concern to Bangladesh authorities, or supporters if he were to return to Bangladesh. If [the applicant] were to be returned to Bangladesh, the Tribunal is satisfied, due to the concerns it has with [the applicant’s] credibility, that he would not become involved in the BNP as he has only done so in Australia in an attempt to generate protection claims.

    Taking [the applicant’s] claims individually or cumulatively, the Tribunal is not satisfied that [the applicant], now or in the foreseeable future, faces a real risk of serious harm if he were to be returned to Bangladesh, nor is it satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Bangladesh, there is a real risk of him facing significant harm.

    [The applicant’s wife]

12. [The applicant’s wife] was born on [date] in Moulvibazar, Bangladesh. The delegate did not interview [the applicant’s wife] and the Tribunal confirmed with [her] that her protection application did not raise any claims of her own. She confirmed that her application was purely as a member of the same family group as the rest of her family. The Tribunal explained to [the applicant’s wife] that if this was the case, should the other members of the family unit be unsuccessful in their applications, it would mean that she was also unsuccessful in her application. [She] indicated that she understood that this was the case.

13. Given that her application did not raise any claims of her own, the Tribunal indicated that it did not have any questions for [the applicant’s wife] and would not require her to give any evidence.

14. As the Tribunal has made findings above that it does not accept that [the applicant] had a property dispute in Bangladesh, that he was harmed or threatened as a result of that property dispute, that he was involved in politics in Bangladesh and had to leave Bangladesh because of that involvement, that he was harmed or threatened as due to his political opinion, it follows that [the applicant’s wife] claims are also rejected.

15. The Tribunal is not satisfied that [the applicant’s wife], now or in the foreseeable future, faces a real risk of serious harm if she were to be returned to Bangladesh, nor is it satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her removal from Australia to Bangladesh, there is a real risk of her facing significant harm.

    [The applicant’s daughter]

16. [The applicant’s daughter] was born on [date] in Moulvibazar, Bangladesh and at the time of the hearing was [age] years of age. When she last left Bangladesh for Australia she was [age] years old.

17. [The applicant’s daughter] told the Tribunal that she could not return to Bangladesh because it was not safe there. She told the Tribunal that in Bangladesh, she was targeted by four men in November 2015. She was on her way home from school and the four men approached her and told her that her Dad should not let her go to school and that they would kill her if she continued to do so. She confirmed that this was the only time she experienced harm in Bangladesh and she had no idea was she was targeted by these people. She told the Tribunal that she informed her father what happened that he then started accompanying her to school. She continued to go to school because she needed to complete her exams which she said finished in either November or December 2015. She agreed that the incident could be described as a random attack. When asked whether the attackers had said anything else to her she said no. She told the Tribunal that if she went back to Bangladesh she was not sure whether these people would target her again.

    Concerns – Credibility

18. Noting the evidence provided by [the applicant] about what was said contradicted her evidence, the Tribunal put to her its concerns under s.424AA of the Act. In the Tribunal’s mind, this inconsistency suggested that the claim was a fabrication. [The applicant’s daughter] did not comment on this inconsistency.

19. While the Tribunal accepts that [the applicant’s daughter] would have been [age] years of age when this threat was made, she was clear in her evidence that nothing else was said and it would be reasonable to expect that she would be able to remember threats made in relation to her father. Given this, the Tribunal is not satisfied that [the applicant’s daughter] was threatened at all and finds that this claim has been invented for the purpose of the protection visa application.

1. The Tribunal is not satisfied that [the applicant’s daughter], now or in the foreseeable future, faces a real risk of serious harm if she were to be returned to Bangladesh, nor is it satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her removal from Australia to Bangladesh, there is a real risk of her facing significant harm.

   [The applicant’s son]

2. [The applicant’s son] was born on [date] in Moulvibazar, Bangladesh and at the time of the hearing was [age] years of age. When he left Bangladesh for Australia he was [age] years old.

3. [The applicant’s son] informed the Tribunal that he had lost his passport and that is why he could not produce it. He told the Tribunal that the only place other than Australia he had travelled to was [Country 3] in October 2015 where he stayed for two weeks. He told the Tribunal that he went to [Country 3] with his father. He told the Tribunal that he went to [Country 3] because he had been attacked while he was in College by the Awami League.

4. He was asked whether he had ever been harmed and he told the Tribunal that he was harmed twice. The first time he was harmed was when he started College in [year]. He had joined the Bangladesh Nationalist Party Youth Wing when he started College. [The applicant’s son] had submitted to the delegate six photographs of him standing with a Bangladesh Nationalist Party official in support his application. On the first time he was attacked he was hit with a stick. The second time he was chased by the perpetrators but was able to escape. He said that the second incident happened about a month after the first incident, and that he kept getting threats from the opposition party. The Tribunal asked [the applicant’s son] whether, apart from the attack in [year] and the attempted attack a month later, he had ever been harmed and he said no.

5. The Tribunal questioned [the applicant’s son] about why he would go to [Country 3] in 2015 when the last time he was attacked was in [year], some [number] years later. He told the Tribunal that during the time he continued to get threats and the situation in Bangladesh was not very good. The Tribunal asked why [the applicant’s son], having left Bangladesh and gone to [Country 3] to avoid the harm, would return to Bangladesh, he told the Tribunal that he went on a visitor visa and just came back. [The applicant’s son] said he and his father had tried to obtain a student visa for [the applicant’s son] but it was hard to get one. He said that he could not get a proper answer from migration agents in [Country 3] so they had no option but to return to Bangladesh.

   Concerns – Credibility

6. The Tribunal was concerned by [the applicant’s son]’s travel to [Country 3] for a number of reasons. Firstly, in his written protection visa application, he said that he had never travelled anywhere other than Australia. When this was raised with [the applicant’s son], he said that he forgot. Secondly, [the applicant’s son] told the Tribunal that he travelled in October 2015 to [Country 3] with his father, but this was inconsistent with his father’s evidence about the travel to [Country 3] which he said occurred in 2014. The Tribunal put its concerns under s.424AA of the Act to [the applicant’s son]. In the Tribunal’s mind, the inconsistency about travel dates suggested that the evidence given to the Tribunal about the travel by [the applicant’s son] to [Country 3] and the reasons for doing so were not true. [The applicant’s son] responded he could not remember the travel dates. The Tribunal also raised with [the applicant’s son] why he wrote in his written protection visa application that he had not travelled to any country other than Australia in the last 30 years, but claimed that in fact he had travelled to [Country 3]. His response was that he forgot. Thirdly, assuming for the sake of argument that [the applicant’s son] had indeed travelled to [Country 3], he then voluntarily returned to Bangladesh after his trip, which would suggested to the Tribunal that he was not fearful of returning to Bangladesh. [The applicant’s son’s] response that he went back to Bangladesh because he had ‘no option to remain in [Country 3]’ is not consistent, in the Tribunal’s view, of the applicant having genuine fears of harm if he were to return to Bangladesh.

7. The Tribunal also put its concerns to [the applicant’s son] about the date that he was first attacked in Bangladesh under s.424AA of the Act. The Tribunal put to the applicant that in the written application, and the evidence given by [the applicant], it was claimed that [the applicant’s son] was attacked in February 2015, and not in [earlier year] as he told the Tribunal. [The applicant’s son] then attempted to change his evidence saying that he meant he started College in [year] and that the attack happened after that in February 2015. The Tribunal does not accept [the applicant’s son’s] explanation that the date of [year] related to when [he] started College, especially when the Tribunal called on [him] to explain there was a delay for [number] years between when he was attacked in [year] and his claimed travel to [Country 3]. In the Tribunal’s view, [the applicant’s son] changed his evidence after this conflict was drawn to his attention because he knew it was inconsistent with the written protection visa application. [The applicant’s son] told the Tribunal that he was harmed in February 2015 and that he had a doctor’s certificate to prove that this occurred at that time. When questioned why the report was not provided previously, [the applicant’s son] said that he forgot.

8. The Tribunal was troubled by [the applicant’s son’s] evidence and finds [him] to be an unpersuasive witness. The Tribunal does not accept that [the applicant’s son], who declared in his protection visa application that it was the truth, would forget to declare his travel to [Country 3]. It seemed from [the applicant’s son’s] oral evidence to be an important event in his life, seeing as he had to leave Bangladesh because he had been attacked while he was in College. There is no evidence of an independent nature to confirm that [the applicant’s son] travelled to [Country 3] as claimed by [the applicant] and [his son]. The fact that both [the applicant] and [his son] gave inconsistent evidence about the travel dates to [Country 3] was also of great concern. Again, the Tribunal struggles to understand how both applicants could provide inconsistent evidence about this point. The Tribunal is also troubled by the fact that [the applicant’s son] told the Tribunal about instances of past harm in [year] (with the second attack about a month after the first attack), which was inconsistent with the claims made in the written protection visa application, which related to instances of [the applicant’s son] being beaten up in February 2015 (and was indeed a reason for the travel to [Country 3]). The Tribunal is not persuaded by [the applicant’s son’s] evidence that he was mistaken in telling the Tribunal that the harm occurred in [year] and said [that year] because that was the year he commenced in college.

9. [The applicant’s son] was asked whether he was involved with the Bangladesh Nationalist Party in Australia. He said that he goes to the party in Australia with his father. When asked whether he was a member of the BNP in Australia, the applicant said that he was not and that the reason why he was not a member was because his father was a member. The Tribunal asked whether the BNP in Australia hold their meetings and [the applicant’s son] told the Tribunal that he had only been to one meeting which was held in [a specified suburb]. He attended there in 2017. He told the Tribunal that he did not attend any other meetings because he was studying. [The applicant’s son] was able to tell the Tribunal what the meaning of the red and green colours of the Bangladesh Nationalist Party flag, but was not able to tell the Tribunal what the meaning of the star on that same flag meant.

10. The Tribunal struggles to accept that [the applicant’s son], who it was claimed was attacked in Bangladesh because of his support of the BNP, would not be able to tell the Tribunal about something as basic as the meaning behind a symbol of the Party flag. Further, the Tribunal does not accept that [the applicant’s son], who became involved in the BNP in Bangladesh while he was in college, and would not become a member of the BNP in Australia, nor attend its meetings, apart from once in 2017. The Tribunal does not accept the explanation that [the applicant’s son] did not attend meetings because it would be reasonable to expect that the applicant, who has left Bangladesh because of his support of the BNP, would do more than attend one meeting in the almost three years since his arrival in Australia.

11. While the Tribunal acknowledges that [the applicant’s son] was able to produce some photos of himself with a BNP politician in Bangladesh, for the reasons outlined above, the Tribunal does not accept that accept that [the applicant’s son] was attacked in Bangladesh because of his support for the Bangladesh Nationalist Party, does not accept that he has ever been threatened because of his support of the Bangladesh Nationalist Party in Bangladesh or that he is of any interest to authorities or Awami League members in Bangladesh, does not accept that he went to [Country 3] to avoid future attacks (indeed, the Tribunal does not accept that the applicant travelled to [Country 3] at all because of the inconsistent evidence about that travel), and does not accept that the applicant has participated in any Bangladesh Nationalist Party activity in Australia. The Tribunal does accept that [the applicant’s son] has had photos taken of himself with a BNP leader in Bngladesh (as was produced as part of the protection visa application), but given the concerns that the Tribunal has about [the applicant’s son] as a witness, it does not attach any weight to those photographs at all. There is nothing before the Tribunal to suggest that because [the applicant’s son] has had a photo taken with a BNP leader in Bangladesh, he would be of any interest to his alleged persecutors if he were to return to Bangladesh.

12. The Tribunal does not accept that [the applicant’s son] is a witness of truth and finds that his claims were invented for the purpose of applying for a protection visa.

13. Taking [the applicant’s son’s] claims individually or cumulatively, the Tribunal is not satisfied that [he], now or in the foreseeable future, faces a real risk of serious harm if he were to be returned to Bangladesh, nor is it satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Bangladesh, there is a real risk of him facing significant harm.

    CONCLUSION

14. The Tribunal is not satisfied that [the applicant], [his daughter] or [his son], are witnesses of truth. The cumulative concern about the inconsistency between each of their oral evidence leads the Tribunal to reject their claims for protection in their entirety.

15. As [the applicant’s wife’s] claim for a protection visa is based solely on her membership of the family of a person holding a protection visa, her protection visa application must also be rejected.

16. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

    DECISION

17. The Tribunal affirms the decision not to grant the applicants protection visas.

    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.

    …