1613399 (Refugee)

1613399 (Refugee) [2016] AATA 4748 (23 November 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1613399
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Giles Short
DATE:23 November 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 November 2016 at 9:12am
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
INTRODUCTION

[Mr A] is a citizen of Bangladesh. He has said that he came to Australia as a student in April 2009. He completed a [qualification] in 2012 and he was studying for a [further qualification] when he was charged with [a criminal offence] in July 2013. He has said that he dropped out of his studies and [in] July 2014 he was convicted of [a criminal offence]. He produced to the Tribunal a copy of the sentencing remarks of the judge which indicate that he was involved in [details deleted]. The Crown submitted, and the sentencing judge agreed, that the scheme in which he had been involved was part of a systematic attack on Australia’s [details deleted]. [Mr A] was sentenced to a term of imprisonment [commencing] [in] June 2014, to be released after one year on a recognisance to be of good behaviour.
Upon his release [Mr A] was placed in immigration detention and he applied for a protection visa [in] June 2015. In that application he said that he feared that he would be harmed and most probably killed by Muslim fundamentalists if he returned to Bangladesh because he was homosexual. In a statement dated 25 November 2015 he also referred to the fact that, as mentioned in the sentencing remarks of the judge, he claimed that he had received a threatening email message from the person at whose suggestion he had become involved in the [criminal offence], [Mr C]. He said that this person would definitely harm him or kill him if he returned to Bangladesh.
[Mr A]’s application for a protection visa was refused by a delegate of the Minister for Immigration and he has applied to this Tribunal for review of that decision. A summary of the relevant law is set out at Attachment A. I have taken the policy guidelines prepared by the Department of Immigration and the country information assessments prepared by the Department of Foreign Affairs and Trade into account to the extent that they are relevant. The issues in this review are whether [Mr A] is a refugee and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.
On 27 September 2016 [Mr A] asked that the hearing on 7 October 2016 be postponed because he was waiting for the Department to provide him with a transcript of the recording of the interview which he had had with the primary decision-maker in relation to his application [in] December 2015. The Tribunal responded to him on 28 September 2016 indicating that I did not consider that the fact that he did not have a copy of the audio recording of the interview with the primary decision-maker provided a good reason for postponing the hearing. The Tribunal noted that the hearing was [Mr A]’s opportunity to give evidence and to present arguments in relation to the decision under review of which he had a copy. The hearing proceeded as scheduled on 7 October 2016.
CONSIDERATION OF CLAIMS AND EVIDENCE
Is [Mr A] a refugee?
[Mr A]’s claims
[Mr A] is aged in his late [age]. He has said that he was born in [District 1] but that he lived [in] Dhaka when he was growing up. He has said that his father was [an occupation] of [a workplace]. As referred to above, he first came to Australia as a student in April 2009 and he produced to the Tribunal evidence that he had completed a [course] at [an education facility] in 2012. He has said that while he has been in Australia he has returned to Bangladesh on two occasions, in 2011 and 2013.
In his application for a protection visa, made [in] June 2015, [Mr A] said that if he returned to Bangladesh he would be harmed and most probably killed by Muslim fundamentalists for being gay. He said that under Islamic law it was a serious crime to be gay. He said that he had been beaten by [Muslims] on several occasions, that there was no protection for gay people in Bangladesh, and that he would not have been safe if he had moved to any other city in Bangladesh. He said that he had been in a relationship in Australia and his friends and family had come to know of this relationship in 2014. He said that he feared for his life if he returned to Bangladesh.
In his statement dated 25 November 2015 [Mr A] said that when he had gone to Bangladesh a second time to celebrate his birthday he had been involved in sexual relations with a friend. He said that the local people and Muslim fundamentalists had found him and had hit him with hockey sticks. He said that they had thrown a big stone at him which had hit his [foot], injuring two of his toes. He said that after this incident he had talked with his legal adviser but after explaining his situation he had been told that it would not benefit him. He said that he had also been in a relationship with one man in Australia and he confirmed that he claimed that his family and friends had come to know of this relationship.
[Mr A] said that after the incident in Bangladesh he had returned to his family home in Dhaka but he had left after a couple of days because extremist Muslim fundamentalists had come looking for him and they had told his parents that they would kill him if they found him. He said that he had hidden in a friend’s house and he had changed where he had been living on two occasions. He said that he had been unable to communicate with his family so for these reasons he had returned to Australia from his friend’s house.
[Mr A] was interviewed by the primary decision-maker in relation to his application [in] December 2015. Asked why he could not return to Bangladesh he said that when he had visited Bangladesh on the second occasion he had been bashed by people from the Muslim community because he had been involved in a sexual relationship with a friend named [Mr B]. He said that he had gone to Bangladesh on this occasion to celebrate his birthday. He said that he had had a relationship with [Mr B] before he had left for Bangladesh. He said that he had talked with him by telephone and then he had visited him in Bangladesh. He said that when he had gone to Bangladesh in February 2013 he had gone out with [Mr B] and then they had had sexual contact. He said that this had been on [date] or [date] February 2013 and that it had been his first and only sexual relationship with a man.
Asked how he had discovered that he was homosexual, [Mr A] said that before he had come to Australia he had had very good relationships with other boys. He said that he had always been different and this had been why he had left Bangladesh in 2009. He said that other boys used to bully him and tease him. He said that he had never had any attraction to girls: he had always been attracted to boys. He said that he had promised [Mr B] that he would not have a relationship with any other boys. He said, however, that he was no longer in a relationship with [Mr B]. He said that he had not contacted [Mr B] after the people from the Muslim community had bashed him.
[Mr A] said that after he and [Mr B] had broken up and he had returned to Australia he had had another relationship, with a man named [name], but this had not been a sexual relationship. He said that this had been in November 2013. He said that the people in the Muslim community in Bangladesh who had bashed him had learned of this new relationship. Asked how these people could have known of his new relationship [Mr A] said that he had gone to a gay club and they used to work in that club. Asked how it was possible for Muslim people opposed to homosexuality to have been working in a gay club [Mr A] said that they used to work there [in] the morning. He said that there had not only been Muslim people but Hindu people as well. Asked which club he was talking about he said that it had been the [name] Club in [a location] in [City 1].
The primary decision-maker put to [Mr A] that it was difficult to believe that people whom he had described as Muslim fundamentalists would have been working at a gay club, even as [occupation]. [Mr A] said that there had been [Bangladeshis] there and they had seen him and had informed other people. He said that his parents had told him that someone in Australia had informed people in Bangladesh. He said his parents had told him this maybe in November 2013 or in January 2014.
[Mr A] said that he had only been beaten by [Muslims] on one occasion, not on several occasions as he had said in his application. He said that this had been when he had had the sexual encounter with [Mr B], as he had said. He confirmed that he claimed that he had been hit with a stone and injured. He said that this had been at the end of February 2013 and that he had gone to hospital. He confirmed that he was claiming that he could not return to Bangladesh because he was homosexual. He said that this was the only reason he feared returning to Bangladesh.
As referred to above, on 1 October 2016 [Mr A] sent the Tribunal a copy of the sentencing remarks of the judge, his [qualification], two photographs apparently intended to show the injury to his toes and a document headed ‘Country Information of Bangladesh about Homosexual’ which sets out various propositions derived from country information in relation to Bangladesh.
Discussion of the issue
At the hearing before me [Mr A] said that he had not had any contact with his family in Bangladesh since November or December 2013 or January 2014. He said that they disliked him because he had been to gaol and he had done some bad things in Australia. He said that when they had come to know that he had been charged they had not contacted him any more. He added that he had had a relationship with a friend here and when his family had come to know about this relationship they had not contacted him any more. I put to him that this was completely different from the explanation he had just given me. [Mr A] said that it was true that his family had cut off all contact with him after they had come to know that he was facing criminal charges in Australia but he said that they had also come to know about his relationship and after this they had not wanted to keep any contact with him.
[Mr A] confirmed that he claimed that he feared returning to Bangladesh because he was a homosexual. I asked him if he feared returning to Bangladesh for any other reason. He said that he had helped the Australian Federal Police: he had told the police the name of a person with whom he used to work and everything about this person. He said that after that this person had threatened him. I noted that he had given the Tribunal a copy of what the judge had said when he had been sentencing him. I noted that the judge had referred to one threat which [Mr A] had claimed he had received in the form of an email message. I asked him whether he or his family had received any other threats apart from this one message. [Mr A] said that when he had gone back to Bangladesh the Muslim [fundamentalists] had threatened his parents. He said that they had been looking for him. I put to him that I had been talking about threats from the man whom he had claimed had been involved in the crimes in relation to which he had been convicted. [Mr A] said that he had received threats from this person. He said that he had shown the email to the Department of Immigration and to the judge as well. He said that this person had known his address in Bangladesh. He said that neither he nor his family had received any other threats from this person apart from this email message but he had heard from his friends that this person was looking for him.
I asked [Mr A] at what point in his life he had realised that he was homosexual. He said that when he had been [age] to [age] years old he had been attracted to boys. He said that when he had been with boys he had felt better and when he had been at school he had always moved around with boys. He said, however, that he had attended a school for boys only. He said that the boys had gone to the school in the afternoon shift and girls had attended the same school in the morning shift. I put to him that it was hardly surprising that he had only mixed with boys at school if his school had been a boys only school. [Mr A] said that he had not been attracted to girls. I asked him what he had been told about homosexuality in Bangladesh. He repeated that he had been attracted to boys since he had been little and he had had to hide this from his family. He said that he had not been able to express his feelings for boys because his family were very conservative. I asked him what his family had told him about homosexuality. He said that they had told him that if he ever expressed these things they would kill him. He said that they had also taken him to a mental health doctor. He said that this had been in January 2009, before he had first come to Australia. He said that they had tried to get him married but he had not wanted to get married. He said that they had taken him to a mental health doctor because he had told them that he did not want to get married. He said that they had thought that the reason was something else by which he said that he meant that he had told them that he was not attracted to girls.
[Mr A] confirmed that he was claiming that he had told his family in January 2009 that he was not attracted to girls and that this had been why they had taken him to a mental health doctor. He said that they had told him not to tell anyone about these things and to hide it because otherwise it would be very shameful. I put to him that he had told me earlier in the hearing that his family had cut off all contact with him when they had found out that he was homosexual. [Mr A] said that he had told them in November 2013. He said that when they had known that he had been in a relationship they had cut off all contact with him. I put to him that he had just told me that they had known that he was homosexual in January 2009 and I asked him why his family had not cut off contact with him then. He said that at that time they had told him that no one should know about it and that he had to hide these things. He said that this had been why he had not expressed his own view by which he said he meant that he had kept quiet because he had wanted to maintain the relationship between him and his parents. He confirmed that he claimed that, despite his having told his family that he was homosexual, and despite his family being conservative, his father had paid for him to come here on a student visa. He said that his father had helped him because he had kept his promise to his family.
[Mr A] said that he had not had any homosexual relationships before he had come to Australia as a student in 2009 but he had had contact with a friend over the phone. He said that he had talked with this friend and it had been a normal conversation. He said that after that, when he had gone back to Bangladesh for the second time in 2013, he had had a sexual relationship with this friend. He confirmed that he was talking about his friend [Mr B]. He said that he did not remember the exact date when they had first spoken on the telephone but it had not been before he had first come to Australia in 2009. He said that they had been in contact through [social media] after he had come to Australia in 2009. He said that [Mr B] had been in Dhaka at the time they had contacted each other but he had not met [Mr B] when he had returned to Bangladesh for the first time in 2011. He said that [Mr B] lived far away from him although they had both been in Dhaka. He said that they had just talked over the phone normally when he had been in Australia.
[Mr A] said that he had returned to Bangladesh for the second time in February 2013. He said that he had gone back to Bangladesh at this time because he had wanted to celebrate his birthday and also his mother had been ill. He said that he had celebrated his birthday with his friends, not with his [family]. He said that they had all gone to a restaurant to celebrate his birthday but his family had not known about this. He said that his family were very religious and conservative and they did not like this kind of celebration. He said that he had used his own money to pay for his travel back to Bangladesh. He said that this had been money he had earned by working in summer. He denied that he had benefited from the [criminal offence] in which he had been engaged. I noted that the judge had said in sentencing him that some $[amount] had been involved. [Mr A] said that this had happened after he had returned from Bangladesh. He said that he had only received $[amount] for [the criminal offence].
[Mr A] confirmed that he claimed that he had met [Mr B] on this second visit to Bangladesh. He said that they had met in a restaurant [in] Dhaka right after he had returned to Bangladesh from Australia. He said that after that both of them together had gone to a hotel in [District 1]. I asked him why they had gone all the way to [District 1]. He said that they had gone there so that his relatives would not get to know about it. I put to him that Dhaka was a much bigger place than [District 1]. [Mr A] said that all his relatives were in Dhaka. I put to him that it did not make any sense for them to have gone all the way to [District 1] to have a sexual relationship in a hotel when they both came from Dhaka. [Mr A] said that [District 1] was his native place and they had gone there because it had been easier and cheaper to book a hotel there.
I referred to [Mr A]’s evidence that some [Muslims] had come to know about his relationship with [Mr B]. [Mr A] said that when they had been engaged in sexual relations inside the hotel room the housekeeper had come inside and had seen them. He said that the housekeeper had informed the manager and the manager had informed the Muslim fundamentalists who had beaten him up. He said that when these people had come they had had hockey sticks and some of them had had bricks and stones. He said that one of them had thrown a brick and that a stone had hit his leg. He said that this had been inside the hotel in [District 1]. I put to him that this was a little difficult to accept. [Mr A] repeated that they had beaten him up and he said that they had wounded him. I put to him that the only injury which he had said he had suffered had been some sort of injury to his toes. [Mr A] said that after this they had beaten him up with a hockey stick. I asked him how he had escaped from these people. He said that after they had beaten him up he had fallen unconscious and when he had woken up he had found himself in a hospital. He said that the hospital had been in [District 1] and that the nurses had not been able to tell him who had brought him there. He said this had been the only occasion on which he had been attacked by [Muslims].
[Mr A] said that after he had left the hospital one of his friends had taken him back to his own home in Dhaka. He said that he had not told his parents anything about what had happened and they had not asked because he had been very ill. He confirmed, however, that he had still been well enough to celebrate his birthday at a restaurant with friends. I put to him that I was finding all of his account very difficult to believe. I referred once again to the fact that although both he and [Mr B] were from Dhaka they had gone to a hotel in [District 1], that he claimed that the housekeeper had found him and [Mr B] having sexual relations in the hotel room in [District 1], that the manager had called some [Muslims] who had come with hockey sticks and bricks and had beaten him up in the hotel, that he had then been transported to hospital but that he did not know how, that he had then been taken back to his home in Dhaka and that he had been very ill but his family had not asked him what had happened, and that he had still been well enough to celebrate his birthday with his friends in a restaurant. [Mr A] said that after two weeks he had got better.

I asked [Mr A] if he had had any sexual relationships while he had been in Australia. He said that he had not. He said, however, that although he had not had a physical relationship he had had a relationship with someone else. He said that he had just known this person and had met with him. He agreed that this had been a friendship. He said that they had met at a station, they had smoked together, they had talked, they had got acquainted with each other and they had eaten somewhere together. He said that after they had talked they had felt an attraction towards each other: they had liked each other and they had accepted each other as friends. I referred to [Mr A]’s evidence in his statement that he had been in a relationship with a man in Australia and that his family and friends had come to know of this relationship. [Mr A] said that he and the friend whom he had mentioned had gone around together and this was what his family had come to know.
I put to [Mr A] that what he had described was just a friendship and there would have been nothing unusual in him meeting with friends: he had told me that he had done this in Dhaka. [Mr A] said that after this he and this friend had gone to a gay club together. He said that this had been in November or December 2013. He said that this had been the first occasion on which he had been to a gay club in Australia. He said that he had not had the courage or the confidence to go to a gay club before this. He said that nothing had happened when he and his friend had gone to this gay club but someone had seen him and had informed his parents.
I put to [Mr A] that it was very difficult to accept that someone who had seen him in a gay club would have told his parents in Dhaka. [Mr A] said that there were a lot of Bangladeshi people in Australia and where his father worked in the [workplace] a lot of people had children studying in Australia. I put to him that all of this might be true but it did not mean that these people would have been in a gay club in [City 1] and would therefore have been able to see him and to tell his parents. I put to him that if such a person had been in a gay club in [City 1] they would presumably have been just as interested in concealing this from their parents as he had been to conceal his presence from his parents. I put to him that the person who had seen him could not just have been another Bangladeshi: they would have had to have been someone who had known him, who had recognised him and who had been able to telephone his parents to tell them. [Mr A] said that when his parents had come to know about it they had called him and had asked him about it. He said that he had told them that it was true, that he could lead his life the way he wanted and that there should be no problem with that.
I asked [Mr A] why he had not applied for a protection visa earlier. [Mr A] said that he had not needed it. He said that he had completed a [qualification] here and he had started a [further qualification]. He confirmed that he had dropped out of his [course] after he had been charged with criminal offences. I put to him that if what he had told me about that had happened in Bangladesh was true he would have feared returning to Bangladesh when he had come back to Australia in 2013. [Mr A] repeated that he had completed his [qualification] here and that he had been studying for a [further qualification]. He said that after this he could have applied for permanent residence. He said that he had not needed a protection visa. He said that it had been after he had been convicted that [Mr C] had threatened him as he had told the judge. He said that it had been after he had come to the immigration detention centre that he had come to know that he could apply for a protection visa.
I indicated to [Mr A] that I was having great difficulty in believing that he was telling the truth. I put to him that I might conclude that he had invented his claims about being homosexual in an attempt to remain in Australia. I put to him that he had an obvious motive for making these claims at this very late stage. [Mr A] said that he had told his case manager that he had these kinds of threats. He said that he had not known about protection visas before. I asked him if he had made any inquiries and he said that he not tried because he had not needed a protection visa before. I put to him that he had needed this visa after he had been convicted of criminal offences. [Mr A] said that this was why he had been in immigration detention for one and a half years. He said that he had been in gaol for another year before that. He said that if he did not have any threats or risk to his life he would not have stayed here.
I referred to [Mr A]’s evidence that he also feared being threatened by [Mr C] but that he had only ever received one threat from him, the threatening email message. [Mr A] referred to his evidence that [Mr C] had been looking for him and asking his friends about him. I put to him that depending on the view I formed about whether he could be believed I might not accept these claims either. [Mr A] repeated that if he had not had any life threats he would not have applied for a protection visa. He said that he was here only because he had some risk. I put to him that it appeared that he was still hoping to be granted permanent residence in Australia. I noted that this had presumably been why his parents had paid for him to come here to study in the first place but unfortunately the fact that he had been sentenced to [number] years in prison meant that he was very unlikely ever to be granted permanent residence in Australia. [Mr A] said that he had made a mistake and he had said that he was sorry for this mistake.
Conclusions
As I indicated to [Mr A] in the course of the hearing before me, I have great difficulty in accepting that he is telling the truth in the claims which he has made in support of his application for a protection visa. At the hearing before me he said that he had not had any contact with his family in Bangladesh since November or December 2013 or January 2014 because they disliked the fact that he had been charged with criminal offences in Australia. He then said, however, that he had had a relationship with a friend here and that when his family had come to know about this relationship they had not contacted him any more. Subsequently in the hearing he claimed that his family had sent him to a mental health doctor in January 2009 because he had told them that he did not want to get married because he was not attracted to girls. He confirmed that, despite having supposedly told his family this, and despite his claim that his family are very religious and conservative, his father had paid for him to come to Australia to study in April 2009. [Mr A] said that his father had helped him because he had kept his promise to hide these things but I find it difficult to accept that if, as he claims, he told his family in January 2009 that he was homosexual, and they were sufficiently concerned about this to send him to a mental health doctor, they would then have paid for him to come to Australia to study.
[Mr A] was unable at the hearing before me to cast any light on his claimed realisation that he was homosexual. He said that when he had been at school he had always moved around with boys but, as I put to him, this was hardly surprising given that he said that he had attended a school for boys only. He said that he had not been attracted to girls but, despite claiming that he told his family in November or December 2013 or January 2014 that he could lead his life the way he wanted in Australia and that there should be no problem with that, he does not claim that he has had any homosexual relationships in Australia and he has said that he first went to a gay club in November or December 2013 because he lacked the courage to go to a gay club before then. He has said that he formed a friendship with a man named [Mr B] in Dhaka through [social media] while he was in Australia but he has said that he made no attempt to meet this man when he returned to Bangladesh the first time, in 2011. He said at the hearing before me that this was because [Mr B] lived far away from him although, as referred to above, he said that they both lived in Dhaka.
[Mr A] has said that when he returned to Bangladesh the second time, in February 2013, he and [Mr B] arranged to meet. He has said that they met in a restaurant [in] Dhaka but that they then went all the way to [District 1] in order to have a sexual relationship in a hotel there. [Mr A] said at the hearing before me that they had gone to [District 1] so that his relatives would not come to know but, as I put to him, Dhaka is a much bigger place than [District 1]. He also said that [District 1] was his native place and that they had gone there because it had been easier and cheaper to book a hotel there. I remain of the view that it is difficult to accept that he and [Mr B] would have gone all the way to [District 1] to have a sexual relationship in a hotel there when they could just as easily have remained in Dhaka.
[Mr A] has said that when he and [Mr B] were engaged in sexual relations inside the hotel room in [District 1] the housekeeper came inside and saw them, that the housekeeper told the manager and that the manager then informed the Muslim fundamentalists who came to the hotel armed with hockey sticks and bricks and stones and attacked him inside the hotel. As I put to him, I find it difficult to accept that the manager of the hotel would have summoned the Muslim fundamentalists to attack him in the hotel in this fashion as he claims. Despite his claims that the fundamentalists beat him with hockey sticks until he lost consciousness, he has said that he then woke up in hospital and that when he returned to his home in Dhaka his family did not ask him what had happened. Once again I find this difficult to accept, particularly given that he claimed in his statement that a couple of days after he had returned to his home the Muslim fundamentalists had come there looking for him and told his parents that they would kill him if they found him. Moreover, despite his claims regarding this incident [Mr A] has said that he was sufficiently recovered to celebrate his birthday with his friends in a restaurant on [date]. As I put to him, I find it very difficult to accept his whole account of this incident.
In his application and in his statement dated 25 November 2015 [Mr A] said that he had also been in a relationship with one man in Australia and he claimed that his family and friends in Bangladesh had come to know of this relationship. At the hearing before me, however, he described this relationship in terms which indicated that it was only a friendship. He said that he and this friend had gone around together and this was what his family had come to know but, as I put to him, there would have been nothing unusual in him meeting with friends: as I noted, he had told me that he had done the same thing in Dhaka. [Mr A] said that he and this friend had visited a gay club in November or December 2013 and that someone had seen him and had informed his parents. He said that there were a lot of Bangladeshi people in Australia and where his father worked in the [workplace] a lot of people had children studying in Australia. As I put to him, however, the person who he claims saw him would have had to have been someone who knew him, who recognised him and who was able to telephone his parents to tell them. As I put to him, I find it very difficult to accept his evidence in regard to this incident as well: if there had been another Bangladeshi at the gay club this person would presumably have been just as interested in concealing his presence there as [Mr A]. When he was interviewed by the primary decision-maker [Mr A] suggested that he had been seen by Muslim fundamentalists or Hindus who worked at the gay club as [occupation] but I regard this explanation as equally improbable, given that for his account to be true the person who saw him would have had to know him sufficiently well to be able to recognise him and to telephone his parents to tell them that they had seen him there.
I also consider it relevant that [Mr A] did not apply for a protection visa until June 2015. As I put to him, if what he claims happened when he last visited Bangladesh in 2013 were true, he would have feared returning to Bangladesh when he came back here after that visit. [Mr A] said that he had completed his [qualification] here, he had been studying for a [further qualification] and after this he could have applied for permanent residence. He said that he had not needed a protection visa. However he confirmed that he had dropped out of his [course] after he was charged with criminal offences which was in July 2013 according to the sentencing remarks of the judge which he produced to the Tribunal. I consider that after that time he cannot have been confident that he was on a pathway to permanent residence. [Mr A] said that he had only become aware that he could apply for a protection visa after he was placed in immigration detention when he was released from prison but he said that he had not tried to make any inquiries. I consider that his failure even to attempt to find out how he might remain in Australia after he abandoned his studies casts doubt on the genuineness, or at least the depth, of his claimed fear of being persecuted for reasons of his claimed homosexuality if he returns to Bangladesh now or in the reasonably foreseeable future.[1]
[1] Compare Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347.
For the reasons given in paragraphs 30 to 35 I do not accept that [Mr A] is telling the truth about being homosexual, the incident in 2013 when he claims he and his friend [Mr B] were discovered having sexual relations in a hotel in [District 1] and he was beaten up by Muslim fundamentalists or the incident in which he claims he and a friend went to a gay club in Australia and were seen by someone who told his parents. I accept that, as he initially said in the course of the hearing before me, he has not had any contact with his family in Bangladesh since November or December 2013 or January 2014 because they dislike the fact that he has been charged and subsequently convicted of criminal offences in Australia. However I consider that being ostracised by his family in this way does not, without more, amount to persecution involving serious harm as required by paragraph 5J(4)(b) of the Migration Act.[2] I accept that [Mr A] has at some time suffered an injury to his toes but I do not accept that he suffered that injury in the circumstances he has claimed. I do not accept on the evidence before me that there is a real chance that he will be persecuted for reasons of his real or perceived membership of the particular social group of homosexuals in Bangladesh, as he claims, if he returns to that country now or in the reasonably foreseeable future.
[2] Compare Guitta Levy v Minister for Immigration and Multicultural Affairs, unreported, Federal Court, Tamberlin J, 21 December 1998. Although that case related to persecution under the Refugees Convention, I consider that it remains relevant under the law as in force on and after 16 December 2014.
Having regard to the problems which I have identified with his evidence I do not accept that [Mr A] is a witness of truth. As I put to him, I consider that he invented his claim to be homosexual in an attempt to remain in Australia. As referred to above, he has claimed that he has been threatened by a person who was also involved in the [criminal offence] in relation to which he was convicted, [MrC], and he has said that [Mr C] will definitely harm him or kill him if he returns to Bangladesh. Apart from the threatening email message which he produced to the court there is nothing apart from his own evidence to support these claimed threats. I give greater weight to the problems which I have identified with his evidence than I do to this email message. I do not accept that, as he has claimed, he has been threatened by [Mr C] nor that [Mr C] has been looking for him and asking his friends about him. I do not accept on the evidence before me that there is a real chance that [Mr A] will be threatened, harmed or killed by [Mr C] if he returns to Bangladesh now or in the reasonably foreseeable future.
For the reasons given in paragraphs 30 to 37 above, therefore, I do not accept that [Mr A] is outside his country of nationality owing to a well-founded fear of persecution as required by the definition of a refugee in section 5H of the Migration Act. For those reasons I am not satisfied that he is a person in respect of whom Australia has protection obligations under paragraph 36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of [Mr A] being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm?
Having regard to my findings of fact above I do not accept that [Mr A] is telling the truth about being homosexual, the incident in 2013 when he claims he and his friend [Mr B] were discovered having sexual relations in a hotel in [District 1] and he was beaten up by Muslim fundamentalists or the incident in which he claims he and a friend went to a gay club in Australia and were seen by someone who told his parents. I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [Mr A] being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm on the basis of his real or perceived homosexuality, as he has claimed. I accept that, as he initially said in the course of the hearing before me, he has not had any contact with his family in Bangladesh since November or December 2013 or January 2014 because they dislike the fact that he has been charged and subsequently convicted of criminal offences in Australia. However I consider that being ostracised by his family in this way does not, without more, amount to ‘significant harm’ as defined in subsection 36(2A) of the Migration Act. I consider that more would need to be involved before such ostracism amounted to an act or omission by which pain or suffering, whether physical or mental, is intentionally inflicted on a person, or to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, as required by the definitions of ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ in subsection 5(1) of the Act.
Having regard to my findings of fact above, I do not accept that, as [Mr A] has claimed, he has been threatened by [Mr C] nor that [Mr C] has been looking for him and asking his friends about him. I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [Mr A] being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm at the hands of [Mr C] as he has claimed. I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [Mr A] being removed from Australia to Bangladesh, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [Mr A] being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act. I am not satisfied that [Mr A] is a person in respect of whom Australia has protection obligations under paragraph 36(2)(aa) of the Act. There is no suggestion that he satisfies subsection 36(2) on the basis of being a member of the same family unit as a person who satisfies paragraph 36(2)(a) or (aa) and who holds a protection visa. Accordingly, [Mr A] does not satisfy the criterion in subsection 36(2).
DECISION

The Tribunal affirms the decision not to grant the applicant a protection visa.
Giles Short
Senior Member

ATTACHMENT A - RELEVANT LAW
In accordance with section 65 of the Migration Act 1958, the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 have been satisfied. The criteria for the grant of a protection visa are set out in section 36 of the Act and Schedule 2 to the Migration Regulations. Subsection 36(2) of the Act provides that:
‘(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.’
Refugee criterion
Section 5H of the Migration Act defines a person as a refugee if, in a case where the person has a nationality, the person is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country or, in a case where the person does not have a nationality, the person is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it. Subsection 5J(1) states that a person has a well-founded fear of persecution if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of a receiving country.
The definition of a refugee contains four key elements. First, the applicant must be outside his or her country of nationality or country of former habitual residence. Secondly, the applicant must fear ‘persecution’. Subsection 5J(4) of the Migration Act states that the persecution must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’. Subsection 5J(5) states that the following are instances of ‘serious harm’:
(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.
In requiring that ‘persecution’ must involve ‘systematic and discriminatory conduct’ paragraph 5J(4)(c) reflects observations made by the Australian courts to the effect that the notion of persecution involves selective harassment of a person as an individual or as a member of a group subjected to such harassment: see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388, McHugh J at 429. Justice McHugh went on to observe in Chan, at 430, that it was not a necessary element of the concept of ‘persecution’ that an individual be the victim of a series of acts:
‘A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is “being persecuted” for the purposes of the Convention.’
‘Systematic conduct’ is used in this context not in the sense of methodical or organised conduct but rather in the sense of conduct that is not random but deliberate, premeditated or intentional, such that it can be described as selective harassment which discriminates against the person concerned for a Convention reason: see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [89] - [100] per McHugh J (dissenting on other grounds). The Australian courts have also observed that, in order to constitute ‘persecution’ for the purposes of the Refugees Convention, the threat of harm to a person:
‘need not be the product of any policy of the government of the person’s country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution’ (per McHugh J in Chan at 430; see also Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per Brennan CJ at 233, McHugh J at 258)
Thirdly, the applicant must fear being persecuted ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’. Paragraph 5J(4)(a) states that one or more of the reasons mentioned in paragraph 5J(1)(a) must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution. It should be remembered, however, that, as the Australian courts have observed, persons may be persecuted for attributes they are perceived to have or opinions or beliefs they are perceived to hold, irrespective of whether they actually possess those attributes or hold those opinions or beliefs: see Chan per Mason CJ at 390, Gaudron J at 416, McHugh J at 433; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
Fourthly, the applicant must have a ‘well-founded fear of persecution’ as defined in subsection 5J(1). That subsection contains a subjective requirement, that the person fears being persecuted, and an objective requirement, that there is a real chance that the person will be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility: see Chan per Toohey J at 407 and McHugh J at 429. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation: see Guo, referred to above, per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 572.
Complementary protection criterion
An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Migration Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa), set out above. The Full Court of the Federal Court has held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention: see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 at [246] per Lander and Gordon JJ with whom Besanko and Jagot JJ (at [297]) and Flick J (at [342]) agreed. ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A): see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’, to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.
Ministerial direction
In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘PAM3: Refugee and humanitarian - Complementary Protection Guidelines’ and ‘PAM3: Refugee and humanitarian - Refugee Law Guidelines’ - and any country information assessment 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.
Credibility
As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’. However this should not lead to ‘an uncritical acceptance of any and all allegations made by suppliants’. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):
‘Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another’ (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282)
As the Full Court noted in that case, this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:
‘in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.’
If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.

[2016] AATA 4748

23 November 2016

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