1614426 (Refugee)

[2019] AATA 4192

1614426 (Refugee) [2019] AATA 4192 (17 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614426

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Paul Millar

DATE:17 September 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 September 2019 at 11:52am

CATCHWORDS
REFUGEE – protection visa – Bangladesh – particular social group – homosexual – credibility concerns – accounts of various relationships in Bangladesh and Australia – fabricated claims – delay in applying for protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of Bangladesh, applied for the visa on 18 June 2015.[1]  The applicant appeared before the Tribunal on 16 August 2019 to give evidence and present arguments. The applicant’s brother-in-law also gave evidence. The hearing was conducted with the assistance of a Bengali-speaking interpreter.  However, for the most part, the applicant elected to communicate with the Tribunal in English as did his brother-in-law.    

   [1] The Tribunal's finding on citizenship is based on the applicant's Bangladesh passport which he produced at the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

2. 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.

3. 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.

4. 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).

5. 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.     

6. 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).

   Mandatory considerations

7. 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[2]

   [2] DFAT has produced a country information assessment on Bangladesh, but it is not relevant to the grounds on which this review has been determined.

   FINDINGS

8. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to his evidence to the Department and the Tribunal, the applicant claims protection on the ground that he is homosexual.[3]  The Tribunal holds the following concerns about the applicant’s credibility.

   Credibility concerns

   The applicant’s early life

   [3] The applicant's evidence to the Department and the Tribunal comprises the contents of the protection visa application forms; the applicant’s statutory declaration made on 22 September 2015; the applicant's evidence at his interview with the delegate for which there is an audio recording on the Department file and to which the Tribunal has listened and the applicant's evidence at the Tribunal hearing.

9. To the Tribunal, the applicant gave the following evidence about his early life in Bangladesh.   The applicant lived with his family in the town of [name deleted] (‘town 1’).  In his early life, he recalled his male friends wanting to go to a river to watch the girls taking a shower.  The applicant always refused to go with them because it did not feel right to him to do that.  When asked why watching girls take a shower did not feel right to him, the applicant said that it was because he was not attracted to girls. He said that he did like jumping in the river with the other boys. When asked why that was, he said that it was because it enabled him to be closer and have physical contact with them in the water.

10. When asked why being closer to those boys and being able to have physical contact with them appealed to him, the applicant said that it was because he felt an attraction to boys.  The applicant said that when he was approximately [age] years old a family moved into a property next to his own family home.  The youngest member of this family, AA, a young boy, attended the same school as the applicant and was one year behind him.  He and the applicant would travel to school together and began to get to know each other, spending more time together.

11. When the applicant was 13, he and AA began a sexual relationship.  In this respect, the applicant went to AA’s home and in AA’s bedroom in that house, when his family were not present, they began to touch each other. From that time, they continued this relationship, having both oral and anal sex.   The Tribunal had concerns about this aspect of the applicant’s account.  The Tribunal put to the applicant that both he and AA were of a very young age at that time and asked him how they were familiar with activities such as oral and anal sex.

12. In response, the applicant said that when he was 12 years old, a number of times, he went by himself to a cinema in his local area where he had been told that films with sexual content were shown.  In this respect, the cinema would screen a film that was not of a sexual nature and, in the middle of that film, screen content from a different film showing men and women having sex and, as well, men having sex with each other.  This sexual material usually lasted for approximately ten or fifteen minutes.  The cinema would then screen the remainder of the original film.  By this means, the applicant learned about oral and anal sex between men.

13. The Tribunal could allow for the possibility of a cinema and its patrons seeking a covert means of screening material of a sexual nature which might not otherwise be possible to screen to the general public in Bangladesh.  However, the Tribunal put to the applicant that, nevertheless, his description of what he said was an otherwise ‘normal’ movie, being interrupted for the screening of sexual material for ten or fifteen minutes, before resuming the remainder of the movie, seemed highly improbable.  In response, the applicant said that in small areas like the one in which he lived and where the cinema was located what he had described was very common.  When asked why it would be common in those areas and not in a large city like Dhaka, the applicant said that cinemas in large cities would not have the opportunity to screen such material because there were more police in those locations and they were more vigilant as to what was screened.

14. When asked why he actually attended the cinema to view this sexual material, the applicant said that he was curious about sexuality. He said that when he saw the screening of material showing men having sex with each other, it gave him knowledge about that, it felt normal to him and he was very much at ease with it.  He said that this was in contrast to the other people watching who always objected to this material when it was screened and made fun of it. 

15. The Tribunal asked the applicant where he and AA would meet and engage in sexual activity.  In response, the applicant said that it was in AA’s room in his family home, but, as well, they would also go to a nearby bush area where they would play hide and seek and touch each other, although, they would never have sex in that location.  The applicant said that, eventually, his friends discovered him and AA together and when they were touching each other.  When asked to relate what happened on this occasion and, in particular, where the pair were discovered by the applicant’s friends, the applicant was surprisingly vague.

16. He said that he could not actually recall where they were when his friends discovered them.  The Tribunal put to the applicant that, while the event in question occurred a number of years ago, it had difficulty accepting that he would not be able to remember where he and AA were when they were discovered, given that it led to serious consequences for them (discussed below).  The Tribunal expected that, given the applicant claims protection on the basis that he fears harm for being homosexual, he would be able to say where he was when first apprehended by others and when his sexuality would have come to their attention.

17. The applicant then said that they were discovered in AA’s room in his family home.  The Tribunal asked the applicant to explain what actually happened and whether he was saying that his friends actually entered that home and the bedroom they were occupying.  In response, the applicant said that the walls of his and AA’s family homes were made of tin which had holes in it and through which his friends could look and see the pair together. The Tribunal asked the applicant why, if people could so easily see into AA’s room by this means, the pair would choose to engage in oral and anal sex in that room.  In response, the applicant said that it was the only place where they could do that.

18. The applicant said that when his friends saw the pair together they screamed out. The applicant ran away to his home. Later that day his cousins, who were older boys at college, came to his home and took him outside to a playground. There he saw AA whom they had also apprehended and the applicant’s friends.  They then commenced slapping and beating the applicant and AA.  As well, they shaved their heads as a way of shaming them for having done something wrong. The applicant’s cousins also told him that if they caught him in those activities again they would beat him severely and kill him. 

19. The Tribunal asked the applicant whether his parents spoke to him about both he and AA having shaved heads. The applicant said that they asked him about that, but he just ignored their questions. He said that his cousins did not tell his parents what had happened and when asked why that was, if, as he was claiming, homosexuality was forbidden, the applicant said that his cousins thought that he and AA would just stop seeing each other.  From this time, when the applicant’s friends saw him in public, they would insult him because of his relationship with AA.

20. Nevertheless, the applicant and AA continued their relationship, including engaging in oral and anal sex and would do this in AA’s home or the applicant’s home.  The Tribunal again asked the applicant why the pair would take the risk of doing this at those locations when he said that the walls to both homes, including the rooms where they were together, were made of tin that had holes in it enabling people outside to look in and see what they were doing.  In response, the applicant said that they took this risk because it just felt right. When asked what he meant by that, the applicant said that when he and AA had physical contact they simply did not care whether or not they were seen.

21. The Tribunal put to the applicant that it had difficulty accepting that evidence given his cousins had threatened to severely maltreat him if he and AA were caught together again.  In response, the applicant said that when he and AA were together having sex, it felt good and they just could not stop.  They would meet together to do this approximately once each week or once each fortnight whenever it was safe. The applicant recalled an occasion when some relatives came to his own home and his parents said that he could go and stay in the home of AA, where they could be together.

22. Overall, the Tribunal finds aspects of the applicant’s account of his early life in Bangladesh to be unconvincing and highly improbable.  The Tribunal struggled to accept that at the age of 12 or 13 the applicant and AA were engaged in oral and anal sex.  The applicant’s account of how he learned of this sexual activity through the screening of film depicting that activity in the middle of a movie unrelated to that content struck the Tribunal as fanciful.  His claims that this was normal in a smaller area were not persuasive. 

23. The Tribunal also found unconvincing and highly improbable the applicant’s account of undertaking this sexual activity with AA in that person’s home behind walls made of tin that had holes in it through which people could see and might be able to, and eventually did, discover them. Certainly, the Tribunal had difficulty believing that they would continue their sexual activity in such a location after being apprehended and beaten.  The Tribunal acknowledges the applicant’s claims about their desires overcoming their perception of risk and the difficulty of finding places where they might be able to be together. However, this account did not bear the ring of truth, an impression enhanced by the applicant’s initial vagueness as to the location in which he and AA were discovered together. 

24. In addition, pursuant to s.424A of the Act, the Tribunal put to the applicant that his evidence as to how his friends and cousins discovered him and AA having sexual relations, appeared to be inconsistent.  In this respect, in his interview with the delegate, the applicant was asked how his friends found out about him and AA.  In response, the applicant said that his friends would follow the pair and maybe ‘somehow’ they just saw us ‘somewhere’.  He then said that they saw the pair touching each other.  The delegate asked the applicant where he and AA were when his friends saw them touching each other. In response, the applicant said that at that time they were in a garden behind AA’s house. He added that, at that time, it was in the afternoon when not many people were around.  His friends approached the pair, shouted and ran away.

25. In stark contrast to this evidence, as stated above, the applicant said that his friends discovered him and AA having sexual relations by looking through holes in the walls of AA’s home and bedroom, walls that were made of tin.  In response, in a statutory declaration made on 11 September 2019, the applicant repeated the account that he gave the Tribunal that he thought that his friends caught him and AA together in AA’s house.  He said that the Tribunal put to him that, presumably, they were in a room in that house.  The applicant said that, in his evidence to the Tribunal, he agreed with that suggestion, but, said that the Tribunal did not ask him to describe the room. 

26. In his declaration, the applicant then said that, in fact, his friends saw him and AA together in a garden ‘adjoined’ to AA’s room.  The applicant said that, in Bangladesh, some houses have gardens inside the house and sometimes there is a small garden inside the rooms of the house.  He said that in AA’s room, which was at the back of the house and made of tin, there was a small garden with flowers in pots, put there by AA’s parents. The applicant added that, for ventilation, there was a gap between the tin walls of this room and the roof, this being the ‘hole’ that the applicant mentioned at the hearing and through which his friends saw the pair together.

27. The Tribunal rejects these new claims from the applicant.  If it was the case that the applicant’s friends discovered the pair in a garden situated inside AA’s room in his family home, the applicant would have given that evidence to the delegate and the Tribunal.  He could easily have related the account that he now puts forward in this declaration.  The Tribunal has set out in detail its exchange with the applicant as to how his friends came to discover him and AA together.  The applicant made no mention of a garden in AA’s room.  He conveyed the impression that the holes, through which his friends saw the pair, were holes in the actual walls of the house, not a gap between those walls and the roof of the house.  In his declaration of 11 September 2019, the applicant has fabricated evidence to conceal the inconsistency in his accounts and this reflects poorly on his credibility.

    The applicant’s life in Dhaka

28. In approximately 2001, when the applicant was [age] years old, he left his native town and went to live in Dhaka where he attended college.  He rented a unit in a building mostly occupied by families. The Tribunal asked the applicant whether he ever saw AA after that and the applicant said that he occasionally saw him when the applicant returned to town 1.  However, they did not have any sexual relationship because the applicant would only stay a few days and so the pair did not have ‘safe time’ for that.

29. At some stage after commencing his studies the applicant met BB, a fellow student who he invited into his unit.  The pair watched television or a video game and then commenced touching each other, following which a sexual relationship commenced. In February 2002, when the applicant was approximately [age] years old, he commenced a relationship with CC, a man in his mid-20s who worked in the area and also lived in a unit in the same building as the applicant.  The pair then met at a nearby tea stall where they began to talk.  After getting to know each other, CC invited the applicant to his home where he cooked something for the applicant and a sexual relationship commenced.

30. The applicant said that from this time he would have sex with CC approximately once or twice per week. He said that at the same time, while he was in this relationship with CC he would also often see male friends of his from college. Every week he would go to a park in the evening where they would all meet together and ‘hang out’.  The Tribunal asked the applicant what he spoke about with these other men. In response, the applicant said that they would talk about sports and politics because his friends loved to talk about that. When asked if they would also talk about women, the applicant said that they did and his friends would say that they had girlfriends. They would ask the applicant whether he had a girlfriend and he would tell them that he did not. When asked how they reacted to that, the applicant said that his friends would ask him why he did not have a girlfriend and he would tell them that he did not want one. In response to that, his friends would just joke and say that he was not a man.

1. The applicant said that in February 2003 he went on a holiday with these particular friends to a city in another part of Bangladesh. One of the friends chose a hotel in which they stayed.  The applicant said that when they got to the hotel in the evening he was told by his friends that there were prostitutes there and his friends had sex with them.  Then, his friends sent him into a room telling him he was to have sex with a prostitute. The applicant initially objected telling his friends that he was shy.  However, they pushed him into the room with a young girl.

2. The applicant said that he was in the room for about 10 minutes and he did not engage in any activity with that woman. When he came out of the room his friends laughed at him asking why he left the room so quickly. The applicant said nothing to them, went to the room in which he was staying and just slept.  The group then returned to Dhaka.  After that, on a few occasions, his friends took him to brothels in Dhaka again forcing him to have sex with the women there.  The applicant would go along to the brothel in fear that if he did not do that his friends would think that he was homosexual. However, when he arrived at these places he felt disgusted and would walk out telling his friends that he was shy.

3. After the applicant had given this evidence, the Tribunal then put to him certain contents of his statutory declaration, made on 22 September 2015, which are related to these incidents and which caused the Tribunal concern.  In this respect, in his statutory declaration, the applicant relates his account of going to another city in Bangladesh with his friends for a holiday and his friends sending him into a room with a woman to have sex with her. The applicant stated that he felt disgusted, was not attracted to her and left the room. He stated that his friends made fun of him and ‘[a]t that stage, he was confused why [he] was different compared to [his] friends’.  In his declaration, he stated that his friends continued to make fun of him and again forced him to ‘go with girls’ with the ‘same result’.  He then stated that this was when ‘[he] realised [that he was] interested only in men and have zero and have no feelings for women’.

4. The Tribunal put to the applicant that it had difficulty accepting that he would decide at that late stage that he was interested only in men and that he would be confused as to why he was different from his friends.  The Tribunal put this to the applicant because, he had, just prior to that time, related an account of having a sexual relationship with another male from the young age of 13, a relationship of approximately two years’ duration, followed by two further sexual relationships after he went to live in Dhaka.  Whilst the Tribunal could understand some initial questioning or confusion in the applicant’s early life, prior to the commencement of his sexual relationship with AA, the Tribunal had difficulty accepting that he would be in any way confused about his sexuality in early 2003 given the history of his relationships up until that time and that it would not be until that time that he discovered his attraction to men.

5. In response to this concern, the applicant said that he had never been interested in women and it was after going to the brothels in Dhaka with his friends that he was ‘100%’ not into women. The Tribunal rejects that response because, given the history of the applicant’s relationships prior to going to those brothels with his friends, he would have well-known that he was attracted to men and not women.  He then said that, in fact, when he went on the holiday with his friends to another city in Bangladesh he knew that he was homosexual.  He said that he had used the wrong words for this in his declaration.  The Tribunal also rejects that response because the applicant’s declaration is detailed and he clearly states that at the time of the holiday when he was forced into a hotel room with a prostitute, he was confused as to why he was not like his friends. The Tribunal does not accept that the applicant would be confused about his sexuality at that stage and the Tribunal also does not accept that the wording in his declaration appears by mistake or through inadvertence.  Indeed, earlier in his declaration, the applicant said that, in Bangladesh, he lived his life, inter alia, ‘confused’ and not knowing what his attraction to men meant.  Overall, these concerns reflect poorly on the applicant’s credibility.

   The applicant’s decision to leave Bangladesh, his life in Australia and the delay on his part in applying for protection

6. To the Tribunal, the applicant said that in May 2003 some local men discovered CC and another man having sex.  They severely maltreated both CC and his partner and, once told of this, the applicant feared for his safety. He went back to town 1 for a short period, before then returning to Dhaka for another few months to complete the course that he was undertaking. He told the Tribunal that once he was told of what happened to CC and his partner, he ceased all sexual activities and contact with other men of a homosexual nature.  Again, he said that he did this because he was afraid that if his sexuality was discovered by others, he would suffer the same fate as CC and his partner.

7. He decided at that time that he could not live in Bangladesh as a homosexual.  He had to leave Bangladesh, in essence, to save his life and to be able to live as a homosexual person.  He said that, at that time, he was so frightened by what had happened he could not eat, sleep or study.   He decided that his means of leaving Bangladesh would be to obtain a visa to study in another country. It was for this reason that, after returning to town 1 briefly, he came back to Dhaka to complete his studies.  The applicant then, again, went back to town 1 and told his parents that he wished to study abroad.  His parents agreed with this and, from that time, until leaving Bangladesh in September 2004, the applicant stayed with his family and with an aunt in Dhaka making the necessary arrangements to obtain his visa for Australia.

8. The Tribunal asked the applicant what he would have done had CC and his partner not been discovered and attacked.  In response, the applicant said that he would have just remained in Bangladesh and continued sexual relationships with other men. He said that, beyond that, he did not have any other plan.  The Tribunal put to the applicant that, before learning of the attack on CC and his partner, he would have known that he could not live openly as a homosexual in Bangladesh. In response, the applicant said that he agreed with that, but, at that time, he was just going with the moment.

9. The Tribunal asked the applicant what his intentions were at the time that he left Bangladesh in terms of remaining in Australia or returning to his own country. In response, the applicant said that his intention was to come to Australia, study and, as he had been advised by agents, obtain permanent residence in Australia by that means. He said that his intention at that time was to never return to Bangladesh and that was because of his fears about being homosexual in the light of what had happened to CC and his partner. When asked what his parents’ intentions were at the time he left Bangladesh, he said that his parents were pleased for him to travel to Australia and to undertake and complete study.  Nothing was said about any timeframe within which they expected him to return to Bangladesh.

10. The applicant said that in 2009 his visa expired and he ceased his studies because neither he, nor his family, had sufficient funds to pay further tuition fees.  He said that it was in this same year that he also stopped living with his Australian resident sister and her husband.   He had been residing with them since he came to Australia in September 2004. The Tribunal asked the applicant what his parents told him that he should do at that time, given he could no longer afford to continue his study. In response, the applicant said that his parents told him that if he could not pay for his further tuition he should return to Bangladesh. The applicant told his parents that he would try and work to obtain the money to study.  Nevertheless his parents remained worried about him. When asked why he stopped living with his sister and her husband in 2009, the applicant said that it was because they kept asking him about his studies and he would not tell them that he had no money to pay for his fees.

11. When asked why he would not tell his sister and brother-in-law that, the applicant said that he felt that he could not do that. They would ask him why he was not attending his course.   He was afraid that if he told them that he could no longer afford to study, they would try to have him sent back to Bangladesh.  He held that fear because his parents said that he should return if he did not have money for his tuition fees.  Accordingly, to avoid this pressure from his sister and her husband he went to live in other premises.

12. The Tribunal asked the applicant what his intentions were at that time and, in response, the applicant said that he did not have any plans or intentions. He simply wanted to move out and avoid the pressure he felt that he was under from his family. He was able to find accommodation as well as employment.  After his arrival in Australia, the applicant entered into relationships with different males he met, naming them as DD, EE and FF.  In 2009, after he stopped living with his sister and brother-in-law, he commenced a relationship with GG another homosexual male from Bangladesh who was residing temporarily in Australia. 

13. In 2013 GG returned to Bangladesh because his father was sick. The applicant said that GG’s departure was sudden and he was devastated because they had been in a relationship since 2009 and he was in love with GG.  The Tribunal asked the applicant whether GG ever disclosed to the applicant or discussed with him what his own plans were about being able to stay in Australia given that he too was a homosexual from Bangladesh.  In response, the applicant said that GG told him that he wanted to stay here. However, when the Tribunal asked the applicant if GG said why he wanted to stay in Australia, surprisingly, the applicant said that he did not know.

14. The Tribunal put to the applicant that it had difficulty accepting that he would not know why GG wanted to remain in Australia.  In response, the applicant said that he never asked GG that.  Again, the Tribunal put to the applicant that it had difficulty accepting that he would not have asked his partner, in a relationship of almost four years, about remaining in Australia, given their circumstances as homosexuals who would not be able to live openly in Bangladesh and, in addition, would be at risk of harm because of their sexuality.

15. In response, the applicant said that GG just said that Australia was open and free and he liked the lifestyle. The Tribunal asked the applicant whether he never actually discussed with GG the problem of being homosexual in Bangladesh, the impression conveyed by his responses to that point.  In response, the applicant said that he told GG about his own experiences in Bangladesh and this made GG want to remain in Australia even more.  When asked if, in turn, GG told the applicant about his experiences in Bangladesh, the applicant said that GG said that he had partners there and never got caught.

16. To the Tribunal, the applicant said that at some stage, from 2009, in his contact with his parents, they began to ask him to come back to Bangladesh so that he could marry.  To avoid pressure from them, the applicant reduced his contact with his parents. When they asked him to come back to marry, he would tell them that he was studying and could not afford to come back to Bangladesh even for a holiday. He eventually changed his telephone number to avoid being called by them.  At this stage in 2009, the applicant said that he became sad and depressed due to this family pressure to come back to Bangladesh and marry.  He said that he was also sad and depressed because he did not have a visa to remain in Australia and was in fear that he would be sent back to Bangladesh.

17. The applicant said that, prior to 2009, he was not depressed as he was studying.  He thought that, by that means, he would eventually gain permanent residence and never have to go back to Bangladesh. It was once his study ceased that his feelings of depression began and he wanted to avoid contact with family in Bangladesh as well as contact with his sister and brother-in-law here.  Finally, in late 2014, the applicant received a telephone call from his brother-in-law who had managed to obtain his telephone number from someone else.  His brother-in-law asked the applicant to come to his home to see them.

18. When asked why he would go and see his sister and brother-in-law, the applicant said that, at that time, his sister was pregnant, he was lonely and he had no other family. At the time he was very depressed and down about his circumstances and felt that he had to open himself to somebody.  The Tribunal put to the applicant that it could understand that he would want to talk to someone about his situation, but, the Tribunal asked him why he would want that to be someone in his family given the likelihood that they would reject his homosexuality.  In response, the applicant said that he thought that his sister and brother-in-law, having lived in Australia, would be aware of the homosexual community. He thought that they would understand and support him.

19. The Tribunal put to the applicant that, essentially, his difficulty was the risk that he could be sent back to Bangladesh where he would suffer harm for being homosexual. The applicant agreed with that proposition and the Tribunal asked him how his brother-in-law and sister were going to help him with that.  In response, the applicant said that he thought that they might be able to come up with something and put off his parents from pursuing him to go back there.  The applicant said that he thought that his brother-in-law was somewhat liberal in the sense that he did not judge people and so he agreed to go and meet his brother-in-law and decided he would tell him that he was homosexual.

20. The applicant said that his brother in law was shocked at that news, but, he was also accepting and supportive.  He said that his sister initially was dismissive, but, she also came to accept him. From that time, his brother-in-law agreed that he would hold off the applicant’s parents from pressuring him to return to Bangladesh. His brother-in-law told him, however, that the applicant had to do something about his visa status and that led to his brother-in-law making enquiries, locating the applicant’s current representative and culminating in an application for protection being made in May 2015.  The applicant has continued to have contact with his parents, but, some time ago they stopped pressuring him to return to Bangladesh and marry. However, he said that no family member in Bangladesh knows that he is homosexual. 

21. The Tribunal asked the applicant what his intentions and plans were just prior to being contacted by his brother-in-law in late 2014. The Tribunal asked the applicant what he would have done had he not been contacted by his brother-in-law.  In response, the applicant said that he would have eventually contacted his brother-in-law. He had not done so to that point because he did not have the courage. He otherwise had no plans in terms of staying in Australia and he was just living day to day.  He did not contact his brother-in-law up until that point because it had been a long time since he had done so. He thought that if he did contact his brother-in-law and sister they would just resume their pressure on him to either study or go back to Bangladesh and marry.

22. The Tribunal again asked the applicant why he would choose to disclose to his brother-in-law his homosexuality and also the circumstances in which he was in, namely, remaining in Australia without a visa and at risk of being sent back to Bangladesh where he feared he would be seriously harmed.  The Tribunal asked the applicant why, instead, he would not approach somebody else such as a health professional, like a counsellor or a doctor.  In response, the applicant said that he did not know about that and he wanted to tell family.  He did not ask anybody else he knew about a professional he could consult for his mental state. He said that was because it was hard for him to open up to others, that was his personality.  Although the applicant has disclosed his homosexuality to his brother-in-law and sister, he has never brought any of his partners to meet them nor has he talked about that with them.

23. Prior to the Tribunal hearing, the representative submitted a letter from HH, a national of a country in South East Asia who stated that he is homosexual, that in 2015 he came to Australia and met the applicant at the hotel where they both worked and that in October 2015 they commenced a sexual relationship.  The applicant confirmed this evidence at the hearing and said that from the time they commenced their relationship in October 2015, they had sex almost weekly and, apart from that, frequently went out together.  The relationship continued in this fashion until early 2018 when HH returned to his country with the applicant feeling lonely as a result.

24. After the evidence recited above was given, the Tribunal then explored with the applicant the delay on his part in applying for protection.  In this respect, the Tribunal put to the applicant that, according to his account, he left Bangladesh for his safety and in fear for his life in view of the attack on his former partner CC and the male with whom he was found having sex. To the Tribunal the applicant said that when he left Bangladesh it was his intention to never return there and that he would seek the right to be able to stay in Australia permanently. Again, on his evidence, this was due to his fear of harm in Bangladesh because he is homosexual.

25. The Tribunal put to the applicant that it was inconceivable that, against that background, he did not apply for protection until more than 10 years after he arrived in Australia.  While the Tribunal was aware that the applicant believed and had been advised that if he pursued his studies he might obtain the right to reside here permanently, the Tribunal would have also expected the applicant to have sought advice about how he could remain here in view of the danger he faced in Bangladesh.  Even if the Tribunal was to overlook the applicant’s initial inaction in this respect after he arrived here, he made clear in his evidence that, in 2009, his studies ceased and, therefore, so did the basis on which he could remain in Australia and the basis on which he was planning to be able to remain here permanently.

26. The Tribunal expected that, in those circumstances, at that time, the applicant would take steps to find out about how he could remain here permanently to avoid the harm he claims to fear in Bangladesh. However, the applicant made clear in his evidence that he took no steps in this respect and, indeed, no steps were taken until after his brother-in-law managed to contact him, and after, so the applicant claims, he told his brother in law about his circumstances, causing his brother-in-law to make enquiries leading to the engagement of the applicant’s representative.   This inaction on the applicant’s part in his claimed circumstances, particularly since 2009, is not consistent with an applicant generally in fear of harm in their country.

27. When these concerns were put to him, the applicant said that he had no idea that he could ask for protection when he arrived in Australia. As time went on he became depressed and was just living day by day like everyone else. As for his inaction in seeking advice about his circumstances, the applicant said that it was hard for him to open up to others and that held him back.[4]  While the applicant makes that claim, he has been able to open himself up to others to the extent that he has been in a number of relationships with other men, one of those relationships lasting for a number of years.  He told the Tribunal that once he stopped living with his brother and sister-in-law he could secure accommodation and employment. The Tribunal considers that, given all of those circumstances, the applicant was well able to also consult an appropriate professional for advice about his status in Australia and how he could avoid the harm he claims to fear in Bangladesh.  For these same reasons, the Tribunal rejects the applicant’s claim that he took no steps to enquire about obtaining protection because he felt depressed.  His claimed mental state did not prevent him from entering into relationships, finding accommodation and employment.

    [4] In his first statutory declaration and to the delegate, the applicant gave broadly similar explanations for the delay on his part in applying for protection.

1. As for the applicant’s claim that he was depressed, the Tribunal put to him the medical evidence that he submitted to the Department.[5]  This medical evidence was prepared in May 2016 long after he stopped living with his brother-in-law and sister in 2009 when, on his account, he began to feel anxious and depressed about his circumstances. The Tribunal put to the applicant that this conveyed the impression that in fact he did not seek any help or treatment for his claimed mental state prior to May 2016.  In response, the applicant said that was correct. He said that his depression built up over time, but, he did not think to go and see a doctor. Finally, he could not bear it anymore and that was why he sought help in May 2016. When reminded that he had actually told his brother-in-law about his homosexuality in late 2014, the applicant said that even though he had done that, he still got sick and that was why he went to see a doctor in May 2016.

   [5] See folios 98-106 of the Department file.

2. The delay on the applicant’s part in applying for protection is significant.  His inaction to take steps to see how he could remain in Australia for his safety, in particular, from 2009, when he said that his visa expired and when he ceased his studies, reflected poorly on his credibility and his claim to genuinely fear harm in Bangladesh for being homosexual.  This adverse reflection on his credibility was enhanced by his vague and unconvincing evidence about his discussions with GG, with whom he was in a relationship for some years, about how they could stay in Australia.  The applicant’s initial evidence that he never even asked his former partner why he wanted to stay in Australia only further reflected the overall impression conveyed by his evidence, namely, that the applicant does not genuinely fear harm in Bangladesh.

   Conclusions on credibility

3. Considered cumulatively, the concerns that the Tribunal holds about the applicant’s credibility cause the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.  Accordingly, the Tribunal does not believe that the applicant is homosexual and the Tribunal disbelieves the applicant’s account of his claimed experiences in Bangladesh as a homosexual.  The Tribunal therefore disbelieves the applicant’s evidence that he entered into relationships with other males in Bangladesh and his evidence about, on one occasion, being discovered and attacked by others.  The Tribunal disbelieves the applicant’s evidence that he had a partner who was discovered having sex with another male and attacked as a result.  The Tribunal disbelieves the applicant’s evidence about his interactions with other males with whom he was friends, including his claims about these people trying to force him to have sex with prostitutes.

4. Accordingly, the Tribunal has no credible evidence before it as to why the applicant left Bangladesh and came to Australia.  Because the applicant is not a witness of truth, the Tribunal disbelieves his claims that, after his arrival in Australia, he entered into homosexual relationships with other men.  Similarly, the Tribunal disbelieves claims that the applicant made to the Department about activities he has undertaken as a homosexual in Australia such as going to massage parlours to have physical relationships with other homosexual men, going to venues attended by homosexuals and other related claims.[6]

   [6] This includes the applicant's claims to have attended the gay mardi gras in 2014 and 2015 and his claims about attending homosexual venues and using websites for homosexuals.

5. The Tribunal also disbelieves the applicant’s evidence about his relationship with his family in Bangladesh and family members in Australia.  The applicant’s claims about this were made to support or corroborate his claims about being homosexual and being in fear of harm in Bangladesh on that ground.  For the reasons given, the Tribunal does not believe that the applicant is homosexual and it has no credible evidence as to why he left Bangladesh.  Accordingly, the Tribunal has no credible evidence about the applicant’s dealings with his family in Australia or in Bangladesh, beyond finding that it has no credible evidence that they or anyone in Bangladesh seek to harm him.

6. In reaching its findings on credibility, the Tribunal took into consideration the evidence given by the applicant’s brother-in-law at the hearing.  In his evidence, the applicant’s brother-in-law generally related the account given by the applicant about his dealings with his brother-in-law and his sister while he has been in Australia.   This included evidence from the applicant’s brother-in-law that the applicant stopped living at his home in 2009, that the applicant gave them no reason for that and, as well, that the applicant’s parents were concerned that he had not finished his study and wanted him to return to Bangladesh to marry.  The applicant’s brother in law also gave evidence, similar to that of the applicant, about how they resumed contact in 2014, the applicant disclosing that he was homosexual, his and his wife’s reaction to that as well as the steps the brother-in-law subsequently took about the applicant’s visa status.

7. The Tribunal acknowledges that the evidence of the applicant’s brother-in-law purportedly corroborates the applicant’s own account.[7]  However, the evidence of the applicant’s  brother-in-law does not relate to, deal with or overcome the concerns that the Tribunal holds about the account given by the applicant of his early life in Bangladesh aspects of which, as discussed above, the Tribunal finds highly improbable and not credible.  Similarly, the evidence of the applicant’s brother in law does not relate to nor overcome the concerns raised by the applicant’s evidence in his statutory declaration, concerns discussed above and related to the time that he claims that friends took him to a hotel and forced him to have sex with a prostitute.  

   [7] The evidence of the applicant's brother-in-law was broadly consistent with his evidence in his statutory declaration made on 8 August 2019.

8. Finally, the evidence of the applicant’s brother-in-law does not explain, overcome or excuse the inconceivable delay on the applicant’s part in applying for protection.  The concerns that the Tribunal holds about the applicant’s credibility significantly discredit him as a witness and, for all of these reasons, the Tribunal finds that the evidence of the applicant’s brother-in-law, while broadly consistent with the evidence of the applicant, is, in fact, like the applicant’s evidence, false and fabricated to support what are false protection claims.

9. The Tribunal took into consideration documents submitted to the Department and the Tribunal as evidence of the applicant undertaking activities related to being homosexual.[8]  Those documents comprised a ticket to attend a particular dance event for homosexuals, a document indicating that the applicant is a subscriber to an organisation for homosexuals and records of conversations between the applicant and others on a particular website for homosexuals.  The contents of these documents do not outweigh or overcome the concerns the Tribunal holds about the applicant’s credibility which significantly discredit him as a witness and demonstrate that his claim to being homosexual is false.  Accordingly, the Tribunal does not give evidentiary weight to these documents.

   [8] See folio 97 of the Department file and folios 28 – 39, 42 of the Tribunal file.

10. The Tribunal observes that the documents relate to messages between the applicant and others on this particular website, contain photographs of the applicant and, in some of these messages, he discloses his first name and that he is from Bangladesh.  The applicant has not claimed to be at risk of harm because of this. Certainly, the Tribunal has no credible evidence before it that anyone in Australia or Bangladesh is aware of this content and seeks to harm the applicant on that ground.

11. With respect to these particular documents, the Tribunal has no credible evidence about whatever activities on the applicant’s part they are meant to convey.  The Tribunal has no credible evidence that the applicant attended the dance event for which he has submitted a ticket, nor, what activities he has undertaken in subscribing to an organisation for homosexuals.  The documents containing messages of conversations between the applicant and others on the website used by homosexuals do not demonstrate any relationship between him and those people.  Overall, as stated above, the Tribunal has no credible evidence before it that the applicant has actually engaged in homosexual relationships in Australia. 

12. Whatever activities these particular documents are meant to denote, the Tribunal finds that they have been undertaken for the sole purpose of the applicant strengthening his claim to be a refugee.[9]  At the hearing, Tribunal put this to the applicant stating that, in that event, these activities would be disregarded by the Tribunal.  In response, the applicant said that he had no comment to make in response.  Accordingly, the Tribunal disregards the activities denoted or referred to in these documents.

    [9] See s.5J(6) of the Act.  The documents in question refer to activities taking place in 2016 and 2019.

13. In reaching its findings on credibility, the Tribunal also took into consideration documents submitted in support of the applicant’s claim that he was in a relationship with HH a national of a country in Southeast Asia from October 2015 and up until that person left Australia in January 2018.[10]  These documents comprised photographs of the applicant and HH together at different locations in Australia, copies of pages from the passport of HH and a letter purportedly from HH who gives a broadly similar account to the one given by the applicant about their relationship and who states that the applicant is homosexual.  In a similar vein, the applicant submitted to the Tribunal a letter, purportedly, from GG who stated that he and the applicant were in a relationship and who asserted that the applicant was homosexual.[11]  Finally, the applicant submitted a letter from the manager of the business in which the applicant currently works who said that the applicant disclosed his sexuality to him.[12] This person asserts that the applicant is homosexual based on what the applicant has told him and what he has observed of the applicant’s behaviour towards male customers at the business.

    [10] See folios 40 – 41, 47 of the Tribunal file.

    [11] See folio 48 of the Tribunal file.

    [12] See folio 54 of the Tribunal file.   

14. With respect to this latter document, the Tribunal finds that the assertions made by this individual are all based on representations made to him by the applicant.  The Tribunal has had the opportunity to assess the applicant’s credibility with respect to his claim to be homosexual and, for the reasons given above, finds that claim to be false.  Assertions made by this individual about the applicant’s behaviour towards male customers are not substantive grounds for the Tribunal to find that the applicant is homosexual.  Such assertions are not persuasive in assessing the applicant’s credibility.  Overall, the Tribunal does not give evidentiary weight to this document.

15. With respect to the letters from GG and HH, while they purport to corroborate the applicant’s claims that he was in relationships with these people, their statements do not outweigh, overcome or excuse the concerns that the Tribunal holds about the applicant’s credibility.  While they claim to have been in relationships with him in Australia, that does not explain or excuse the concerns arising from the applicant’s evidence as to being homosexual in Bangladesh.  The statements made in those letters do not explain or excuse the inconceivable delay on the applicant’s part in applying for protection.  Accordingly, the Tribunal also does not give evidentiary weight to these documents and finds that their contents are false.  While the applicant submitted photographs of him together with HH, those photographs do no more than depict two people together at different locations and fall well short of amounting to persuasive evidence that the applicant is homosexual and was in a homosexual relationship with HH.

16. Prior to and at the hearing, the representative submitted that HH was available to give evidence by telephone from his country where he is presently located.  The Tribunal was willing to accept that if it telephoned HH he would give the same account as that he has put forward in his letter.  As discussed above, the Tribunal has considered that account, but it does not outweigh the concerns that the Tribunal holds about the applicant’s credibility which span his conduct, not just in Australia, but, also, in Bangladesh. On that basis, the Tribunal saw no purpose in taking evidence by telephone from HH.  However, the Tribunal gave the representative a period of two weeks for HH to provide a further statement containing any evidence he, the applicant or the representative wanted him to add, in particular, in the light of concerns raised by the Tribunal with the applicant throughout the hearing about his credibility.

17. The Tribunal advised the applicant and the representative that it would make a final decision on whether or not to take evidence by telephone from HH once any further statement from the witness was provided. In his statutory declaration of 11 September 2019, the applicant submitted that if the Tribunal took evidence from HH over the telephone, the Tribunal’s concerns about the applicant’s credibility would be resolved.  With this statutory declaration, the applicant also provided a further written statement from HH.  In this further written statement, HH gives a slightly longer account of how he met the applicant and how their relationship developed.  HH repeats the claims made in his earlier statement that he and the applicant had a sexual relationship and that the applicant is homosexual.

18. The Tribunal has carefully considered the further claims from the applicant in his statutory declaration and these claims made by HH in this statement.  Again, the Tribunal is willing to accept that if it telephoned HH he would repeat the evidence given in his two statements.  However, for the reasons already given, this would not assist the applicant.  The concerns the Tribunal holds about the applicant’s credibility span his life in Bangladesh and in Australia.  Those concerns significantly discredit him as a witness and the evidence of HH would not overcome those concerns.  Accordingly, the Tribunal refrains from taking evidence from HH over the telephone and does not give evidentiary weight to these written statements by him.  The Tribunal finds that their contents are false.

19. In reaching its findings on credibility, the applicant also submitted medical evidence submitted by the applicant to the Department and the Tribunal.[13]  The medical evidence submitted to the Department was issued in May 2016 comprising prescriptions, mental health assessments and two brief medical certificates from a doctor.  The medical evidence submitted to the Tribunal was issued in August 2019 and comprise similar documents.  According to all of this evidence, in May 2016 and in August 2019, the applicant was assessed as suffering chronic anxiety and depression for which he has been prescribed medication and referred to a counsellor. According to this evidence, the applicant’s mental state is due to the applicant being homosexual and having to live a ‘secret life’ in the hostile environment of his country.

    [13] See folios 98-106 of the Department file and folios 43-46 of the Tribunal file.

20. The Tribunal has carefully considered these documents and observes that the assessment of his mental state appears to be based on his own self-reported claims about his feelings and being homosexual.  While he has made those claims to these health professionals, the Tribunal has had the opportunity to question the applicant closely about his claims and, for the reasons given above, finds that the applicant is not a witness of truth and he is not homosexual.  The Tribunal accordingly rejects the assertions in these documents that the applicant is homosexual and suffers from anxiety and depression for having to make that secret.  As the applicant’s claims to these health professionals are self-reported and as the Tribunal finds that the applicant is not a witness of truth, the Tribunal rejects the assertions made in this medical evidence about the applicant’s mental state.  Accordingly, the Tribunal does not give evidentiary weight to the contents of these documents.

21. By letter dated 6 May 2016, the representative made submissions on why the applicant is at risk of harm for belonging to a particular social group of homosexuals in Bangladesh. The submissions contained country information about the treatment of homosexuals in Bangladesh.  Related to why the applicant is at risk for being homosexual, in the submissions, the representative also provided country information about Islamic fundamentalism and human rights practices in Bangladesh.  There is no need for the Tribunal to determine whether or not the claimed particular social group exists because the Tribunal is satisfied that the applicant is not a homosexual.  Because of the Tribunal’s credibility findings, the country information submitted by the representative is of no assistance or relevance to the applicant.  At the conclusion of the Tribunal hearing, the Tribunal gave the representative leave to file written submissions, if he saw fit to do so, dealing with the issues raised at the hearing. No further submissions were provided by the representative.

22. In his statutory declaration, the applicant stated that he owed money to people, but the applicant has not claimed protection on this ground. Anyway, because he is not a witness of truth, the Tribunal has no credible evidence about the applicant’s financial circumstances and whether or not he has creditors.  For all of the reasons given above, the Tribunal finds that the applicant does not hold a well-founded fear of persecution within the meaning of s.5J(1) of the Act.  For the same reasons, the Tribunal finds that the applicant does not meet the complementary protection criterion. 

23. The Tribunal finds that the applicant is not homosexual and his account of being homosexual in Bangladesh and being homosexual in Australia, including entering into relationships with others here, is false.  The Tribunal has discussed above certain documents the applicant submitted to indicate activities or involvement with homosexuals in Australia.  The contents of those documents do not overcome the Tribunal’s concerns about the applicant’s credibility and the Tribunal does not give evidentiary weight to them. The Tribunal has no credible evidence about any involvement or activities on the applicant’s part in relation to these documents. Whatever activities or involvement these documents indicate, the Tribunal is satisfied those activities and involvement were not undertaken because the applicant is homosexual.

    CONCLUSIONS

24. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

25. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

26. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Paul Millar
   Member