1614781 (Refugee)

[2018] AATA 995

1614781 (Refugee) [2018] AATA 995 (15 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614781

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Mila Foster

DATE:15 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 March 2018 at 10:27am

CATCHWORDS
Refugee – Protection Visa – Bangladesh – Imputed political opinion – Supporter of the Bangladesh National Party – Child of a professional – Fear of harm from opposing political parties and paramilitary groups – Country information does not support applicant’s claims - Witness credibility – Evasive and inconsistent evidence – Significant delay in applying for protection

LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 424A, 438(1), 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Bangladesh, applied for the visa [in] August 2016. The applicant entered Australia in July 2008 on a [temporary visa], was granted further [temporary visas] and became an unlawful non-citizen when his last [temporary visa] was cancelled in June 2011.[1] The delegate refused to grant the visa on the basis that the applicant was neither a refugee nor owed complementary protection.

   [1] Page 1 of the delegate’s decision record.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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 themselves 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).

4. 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. If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b), (c). 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.

5. 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).

6. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

THE APPLICANT’S CLAIMS AND EVIDENCE

1. The applicant presented his claims and evidence both in writing and orally to the Department and the Tribunal. Broadly speaking, he claims that if he returns to Bangladesh he will be harmed due to his association with the Bangladesh National Party (BNP) by the Awami League party or persons acting on behalf of or associated with the Awami League.

2. To give some context and background to the claims made by the applicant,[2] the BNP and Awami League are Bangladesh’s two largest parties. They have virtually divided the country’s electorate and institutions since 1990. The BNP led government from 1991 until 1996 and from 2001 and 2006, while the Awami League led government from 1996 until 2001. Democratic functioning deteriorated after 1990 with corruption becoming entrenched under the governments lead by both those parties. Civil society groups saw the period leading up to the elections that were supposed to be held in early 2007 as a chance to at least halt the political decay. The Awami League has led the government since December 2008.

   [2] Sources of background information: International Crisis Group, Restoring Democracy in Bangladesh, Asia Report N^o151, 28 April 2008, p.6 (ICG Restoring Democracy Report); BBC, ‘Bangladesh profile – Timeline’, 14 February 2018,

3. The evidence presented by the applicant in support of his claims for protection include the following:

   a.His protection visa application which included a written statement.[3]

   [3] Department of Immigration and Border Protection (now Department of Home Affairs) file [file number] (Department file) at ff.1-80. He stated in his protection visa application that he could speak, read and write Bengali and English, and that he had completed his protection visa application himself without assistance.

   b.The oral evidence he gave during an interview with the delegate, a recording of which I have listened to.[4]

   [4] Department file at f.93.

   c.Oral evidence and arguments he gave at two Tribunal hearings in July and September 2017. The hearings were conducted, at the applicant’s request, with the assistance of a Bengali speaking interpreter.

   d.Pre-hearing written submissions dated 26 May 2017 made to the Tribunal by the applicant’s representative.[5]

   e.Letter dated [in] May 2017 from [Mr A], Bangladesh Nationalist Jubo Dal[6] [official].

   f.Letter dated [in] June 2017 from [Mr B], [a particular position in the] [Bangladesh] Jatiyotabadi Jubo Dal youth wings from 2004 to 2009, and [another position] from 2000 to 2003.

   g.[In] July 2017 from [a] consultant psychiatrist. 

   h.Letter dated [in] July 2017 from [a] psychologist.

   i.Undated Written statement made by the applicant and submitted at the hearing in July 2017.

   j.Letter dated [in] September 2017 from [a] psychologist at [a particular practice]. 

   k.Statutory declaration made by the applicant [in] October 2017.

   l.Statutory declaration made by the applicant [in] November 2017 in response to an invitation sent by the Tribunal on 6 November 2017, pursuant to s.424A, to comment on or respond to adverse information regarding his visits to the Australian High Commission in Dhaka.[7]

   [5] Tribunal file at ff.94-113.

   [6] Jaiotabadi Jubo Dal, or JJD.

   [7] The information was contained in records on the Department file relating to the applicant’s protection visa application. A document on the file stated that the records were ‘s.438(1)(a) documents/information’. However, no non-disclosure certificate was attached to the file.

4. The written statement the applicant included in his protection visa application (hereafter the written statement) was very detailed. At the first hearing the applicant testified that he had studied English in Bangladesh and that he had written the statement in English himself. The following is a summary of the claims made in the written statement:

   a.His father was [a professional] with strong political opinions who told him a lot about Bangladesh politics.

   b.From a young age he wanted to stand beside the people of Bangladesh, help them educate themselves, fight against corruption and liberate the country from corrupt power-hungry and selfish politicians. He knew the only way was to join a political party. He became a supporter of the BNP.

   c.He joined the student wing of the BNP (the JCD)[8] as a college student in 2005 (when he would have been [age]).

   [8] Jatiotabadi Chatra Dal, or JCD. 

   d.In 2006 he was given a position as [Position 1] of the youth wing of the BNP[9] for a ward[10] in Dhaka (the capital of Bangladesh).

   [9] Jaiotabadi Jubo Dal, or JJD.

   [10] A ward is a division of a city or town, for administrative or electoral purposes.

   e.He began to be subjected to threats by the Awami League in late 2006.

   f.In early 2007, he began to receive more serious threats including kidnapping, torture, mutilation, decapitation and murder.

   g.In [2007] he was kidnapped and detained for [a number of] days.

   h.After being released he was attacked on the way home from a BNP meeting and hospitalised.

   i.After being discharged from hospital he immediately made plans to leave Bangladesh and went to the city of Chittagong, 300 km away.

   j.In Chittagong he [undertook a particular activity] to obtain an Australian [temporary visa].

   k.While in Chittagong, he heard that the Awami League had found out he was in Chittagong and that the Rapid Action Battalion (RAB)[11] and police had come looking for him because there was a case against him.

   l.[A number of] months later armed people came looking for him so he left Chittagong and travelled from one district to another until he returned to Dhaka, applied for the visa and finally came to Australia in July 2008.

   m.The Awami League is now in power. It has captured, gaoled and hanged his fellow party members and many have disappeared without a trace.

   n.Even after he came to Australia, they found his home phone number and threatened that if he did not return with [a large amount of money], which they falsely accused him of stealing, he would be made an example of.

   o.They even occasionally searched for him in his home city, in Dhaka and other districts, and tried to get information about him from friends and people who knew him well when he was involved in politics.

   [11] The RAB is a paramilitary unit within Bangladesh’s security forces often accused of human rights abuses and being involved in suspicious deaths involving exchanges of gunfire usually referred to as ‘crossfire killings’: See United States Department of State, Bangladesh 2015 Human Rights Report (cited on page 3 of migration agent submissions of 26 May 2017).

5. The applicant added to the above claims over the course of the review. For example, at the first hearing he claimed that in Bangladesh he spoke out against corruption within the BNP and that he left Bangladesh because the caretaker government was harassing the BNP. Further, in his response to the s.424A invitation, he referred to his circumstances as being those of ‘an active BNP member, ‘a member of Bangladesh diaspora actively supporting the BNP’ and ‘the son of [a professional] who was perceived as an active BNP member’. He also added that there are lots of criminal gangs in Bangladesh which operate with the passive and active support of the Awami League who look for people like him ‘a returned [sic] from a western country perceived as a wealthy person’ to extort money for them.

CONSIDERATION OF CLAIMS AND EVIDENCE

Mandatory considerations

1. In accordance with Ministerial Direction No.56, made under s.499 of the Act, I have taken into account 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. DFAT produced such a report in relation to Bangladesh on 2 February 2018. That report replaced an earlier such report. New and updated information in the current DFAT report is not materially relevant to the applicant’s circumstances or my decision.

Country of reference

1. The applicant has consistently claimed that he is a national of Bangladesh and no other country. I sighted his Bangladesh passport at hearing and he testified in Bengali. There is no evidence before me to indicate he is a national of any country other than Bangladesh. I thus find that the applicant is a national of Bangladesh.

Medical evidence

1. According to the medical evidence presented by the applicant a general practitioner had prescribed him sedatives for anxiety in 2010, he was briefly under psychiatric care in late 2016 while in immigration detention, and in or about July 2017 he was diagnosed with major depression (with anxious distress), post-traumatic stress disorder and generalised anxiety disorder.

2. I accept the diagnoses as they have been made by qualified mental health professionals. Further, I have had regard to the medical evidence in assessing the evidence the applicant has given about his protection claims particularly at hearing.  However, I have concluded that his mental health did not impair his ability to give evidence and present arguments at the hearings. He presented at the hearings as an intelligent, articulate and assertive person. To the extent that he may have been anxious it did not seem to impact on his ability to testify. He was able to recount instances of harm he claimed to have experienced in Bangladesh without any obvious distress. He often seemed to have a lot he wanted to say and was not often at a loss for words. However, at times I did seek to redirect him to more directly address a question asked or issue put to him. While he indicated he could get sidetracked because of his mental state it did not appear that was the case to me. Instead it appeared that on such occasions he was being intentionally evasive, particularly when asked about matters which went beyond the details in his written claims. I elaborate further on his testimony below.

3. While I accept the diagnoses I give no weight to the medical evidence in assessing the veracity of the applicant’s protection claims as those claims were self-reported by the applicant to the medical professionals.

Credibility

1. I had the opportunity to take evidence from the applicant over the course of several hours at two hearings. I found him to be a most unsatisfactory witness. In addition to the flaws in his testimony, the credibility of his claims is undermined by information from other sources about the caretaker government and political environment in Bangladesh during the time he claims he was politically active and targeted in Bangladesh,[12] and his very lengthy delay in applying for the protection visa.

Testimony

[12] ICG Restoring Democracy Report, pp.8, 11, 16, 17, 20 and 21; DFAT Report 636, Report released to MRT/RRT, RRT information Request:BGD31628, 3 May 2007; DFAT Report 723, Report released to MRT/RRT, RRT information Request:BGD32419, 1 November 2007 (which includes information on trends in political violence sourced from Bangladesh human rights organisation, Odhikar). 

1. The following are some instances of the flaws in the applicant’s testimony.

2. In response to questions asked to confirm his written claims or to elicit further details about his written claims, the applicant often times seemed intentionally evasive and gave long-winded answers which did not directly respond to the question asked. My impression was that the applicant believed that the more he said the more credible he would appear to be. However, he recounted claims already detailed in his written statement even if not relevant to the question asked, contradicted himself, embellished his written claims and made new claims.

3. For example, the applicant claimed in his written statement that he joined the student wing of the BNP shortly after starting college in his home area which, according to his protection visa application, was in July 2005. He thus would have been [a minor]. He said he gained a name for himself [undertaking particular political activities]. He said he also organised party meetings, rallies and attended important meetings with senior BNP members. Yet when I noted these activities at hearing and asked why, if he was in the student wing, he had not undertaken activities at college or recruited students to the student wing the applicant seemed to intentionally avoid the question and instead answered vaguely that his activities were mainly outside college. He did not elaborate on what activities he engaged in at college or with college students or why his main activities were outside the college if he joined the student wing.

4. The applicant stated in his written statement that his work with the student wing was noticed and in 2006 he was given the position of [Position 1] of the youth wing of the BNP for a ward in Dhaka. His written statement contained less detail about his activities with the youth wing than the student wing. He stated in the written statement that while unusual for an [Position 1] of a ward, he was regularly invited to join important party meetings between leaders and senior members of the party. He would contact his father for guidance on complex matters and share those at the meetings to solve problems. Asked at the hearing about his contribution to those meetings, the applicant merely repeated what was in his written statement, that he would contact his father and then pass on ideas at the meetings. When I questioned whether he was merely his father’s mouthpiece, the applicant said he also gave his opinion because he was educated in politics, knew what the Awami League was doing and about how to preserve democracy. Yet when I questioned the applicant further about how democracy could be preserved his responses were brief and vague. He referred to fair elections where every voter could vote without fear of persecution or temptation from anyone. And when asked what made the BNP better placed to achieve fair elections he focussed on the attitudes of the BNP and Awami League to the caretaker governments in 2006 and again in 2014 rather than detail how the BNP proposed to make elections fairer. If the applicant was as well educated in politics as he emphasised, had been hand-picked to a position in the BNP youth wing and invited to meetings with BNP leaders and senior members where he shared his opinions about (in his words) complex matters, I expect that he would have been able to far more clearly convey the opinions and matters discussed at the meetings.

1. The applicant testified that in addition to attending meetings as [Position 1] he would contribute his thoughts about why they should rally, how many people to bring to rallies, and where they should rally to spread their message. As the applicant had testified that Dhaka was [distance] km from his home area I questioned whether the local leaders would be better placed than the applicant to determine what location should be targeted. He replied that he gave his opinion, many others gave their opinion and then added that he mostly recruited and joined to help eliminate corruption.  If as [Position 1] the applicant was mainly involving in recruiting then I expect he would have mentioned that in his written statement or when first asked what he contributed as [Position 1], besides giving his opinion at meetings. It seemed he had invented that claim to overcome a potentially adverse inference being drawn about why he would be in a position to provide an opinion about where rallies should be held.

2. When I questioned the applicant about his anti-corruption activities with the student wing and youth wing of the BNP he indicated that he spoke out about corruption within the BNP (as well as corruption by the Awami League) and that his aim had been to rise within the ranks of the BNP so he could eliminate corruption within the BNP. Asked whether he was harmed by the BNP because of that anti-corruption stance, he replied that he was and that his number was called in Australia. He said he believed the BNP had provided information about his whereabouts to the Awami League and then referred to being threatened. Asked who threatened him, the applicant replied that they did not say but he believed they were Awami League. He said the caller mentioned he had complained about corruption within the BNP and they knew a lot about him – information he had never shared with anyone except the BNP. However, there was no indication in the applicant’s written statement that he had spoken out about corruption within the BNP or that he suspected that information was passed on by his own party to the Awami League resulting in the threatening call he received in Australia. Further, when I suggested that the applicant’s testimony indicated he was not sure that it was the Awami League that called him in Australia, he replied that he was sure but then when I noted that he testified that the caller had not identified themselves and conveyed information that only the BNP would have known, he again seemed less sure and stated that he believed it was the Awami League and that it did not occur to him that it was the BNP. Not only did the degree to which the applicant appear to believe it was the Awami League who made the threatening call shift as he testified but I do not find it believable that it would not have occurred to the applicant that the caller was from the BNP given the caller did not identify themselves as being from the Awami League and the caller knew information he had only shared with the BNP. It thus appeared that the claim that the applicant had spoken out about the corruption within the BNP and believed that the BNP had passed on information to the Awami League resulting in the Awami League making the threatening phone call to him in Australia was invented. 

3. When I sought to confirm, as his written statement seemed to suggest, that the applicant had not engaged in any political activity after he left Dhaka and went to Chittagong, the applicant replied that he spoke to party members in Chittagong about what to do and about returning to Dhaka when the charges were dropped and it was safe to return. When I noted that discussing when it might be safe for him to return to Dhaka was not political activity, the applicant then gave what seemed an intentionally broad outline of his political activity in Chittagong. He said he talked about meetings, what to do next and when to arrange meetings; he said he had some meetings and contact by phone. He then added that even after coming to Australia he kept in touch for the first two years and told them about his opinions and what to do and discussed the political situation in Bangladesh. There is no indication in the applicant’s very detailed written statement that he engaged in political activity once he moved to Chittagong and his response about the nature of his political activity in or from Chittagong seemed intentionally broad and to have been invented to strengthen his claims in response to my suggestion that it appeared he had not engaged in political activity in Chittagong.

4. Further, the applicant’s initial response that after going to Chittagong he talked to party members about when it might be safe to return to Dhaka is not consistent with his written statement in which he said that after being discharged from hospital it was his plan to leave Bangladesh. The applicant gave a lengthy reply which was contradictory and raised a claim that had not been made in his written statement. He said it was his plan (to leave Bangladesh), he was ‘checking to see’ but then it came out that it was no longer possible to live in Bangladesh so he made plans to leave. He said he made plans while in hospital. This did not explain the testimony he had given just moments before that while in Chittagong he contacted party members to assess whether and when it might be safe to return to Dhaka. The applicant then quickly continued that it had always been and still was his plan to return to Bangladesh when it was safe and even when he left for Australia he wanted to go back. He said he wanted to stay until the political crisis had been resolved, said the illegal caretaker government was only supposed to be in power for four months and then hold an election and quit but instead had seized power for two years and was harassing, killing and torturing party members and that was why he left. He said his plan had always been to return to Bangladesh if his party won the elections because he would then be safe. Not only did a large part of his response about the caretaker government seem to be intended to deflect attention from the issue put to him which was the apparent contradiction between his written and oral evidence about when he had decided to leave Bangladesh but there was no indication in his written statement that he left Bangladesh because of the caretaker government or its treatment of BNP party members. Questioned further about this the applicant claimed that the caretaker government harassed Awami League members but mostly the BNP and he left because of the Awami League as well as the harassment by the caretaker government. If that was true I expect it would have been reflected in his written statements. Instead his repeated references to the caretaker government and its illegality during the first hearing seemed rehearsed and intended to strengthen the new claim that he left due to the caretaker government harassment of BNP.

5. Not only is there no indication in the applicant’s detailed written statement that he entertained the notion of returning to Dhaka (other than to obtain his visa for Australia), given what he claims occurred there and led him to leave Dhaka, I do not find it believable that the applicant would have thought it might become safe for him to return in the foreseeable future. The applicant claimed in his written statement that from early 2007 he received serious threats (in Dhaka) of kidnaping, torture, mutilation, decapitation and murder from the henchmen of the opposition party leaders and members. He claimed that in mid-2007, he was stopped by a gang of 20–25 people, assaulted with bamboo sticks and then taken to a camp which was an old [building]. There he claims he was tied to a pillar with a chain and detained for more than two days without food. He says he was forced to drink dirty water which he believes was laced with drugs that made him hallucinate. He says he was beaten with bamboo sticks and that his captors forced him to watch as they sawed off a person’s leg in front of him and said they would saw off one of his legs but he was told he would be given a second chance if he left the BNP and Dhaka forever. He claims he reported this incident to the police but they refused to take his case and said they would bring a false [case] against him if he did not keep quiet. He claims that a few days later while on his way home from a party meeting convened to discuss how he could be protected, he was assaulted with an iron bar by a gangster from the opposition party named [Mr C] which resulted in him being hospitalised. While in hospital he says his friends informed him that his attacker had mysteriously disappeared and that the man’s friends or opposition gangsters may seek to take revenge against him, kidnap or torture him, and that they saw gangsters from the opposition party waiting outside the hospital. The applicant then says that he waited for night after he was discharged to quietly escape the hospital and then he ‘immediately made plans to leave the country’, and fled [distance] km away from Dhaka to Chittagong. If those events and claims are true then I do not consider it credible that the applicant would have thought it might be safe for him to return to Dhaka in the months he spent in Chittagong given there had been no evident change in the circumstances to suggest it might be safe. On the contrary he claimed that the police, RAB and armed people came for him even in Chittagong which would suggest he was not even safe there let alone Dhaka.

6. The applicant testified that for about a half to two years after he arrived in Australia he had regular contact with BNP members in Bangladesh and attended party meetings by telephone during which he gave his opinion about what to do and discussed the political situation in Bangladesh. He also testified that he went to the BNP in Australia but after studying them he did not like their politics. He said they were more social and did little to change conditions in Bangladesh so he did not feel like joining them. After that testimony I confirmed with the applicant that his political activities had ceased in 2010. He added that he ceased his activity then because he was mentally stressed. Later he stated his mental condition declined then because he received the threatening call which scared him. However, when I noted that according to [Mr B]’s letter he was currently ‘working hard’ for the BNP the applicant contradicted his earlier testimony and stated that after going into (immigration) detention he had nothing to do so he joined the BNP in Australia. He said [Mr B] had known him well in Bangladesh, had told him to join and he joined in November 2016.  Thus, the applicant changed his testimony from stating that he ceased his political activity in 2010 and did not join the BNP in Australia to claiming that he joined in November 2016. When I put this to the applicant he claimed that he thought I had previously asked why he had not joined the BNP after he came to Australia. I do not accept that. I questioned the applicant about his political activities in Australia and he clearly indicated that he had decided not to join the BNP in Australia and that he had ceased any political activity in 2010. Further, I noted, there was no specific mention in [Mr B]’s letter that the applicant had joined the BNP in Australia. When I questioned why that was the case if he was a member, the applicant offered no explanation and merely restated that he joined as a member in November.

7. The applicant had told the delegate that he did not really participate in activities with the BNP in Australia but for two years had lived with a friend who was active with the BNP. Asked whether he was involved in any political activity since 2008, the applicant said he made many [social media] posts and was threatened via his account. He referred to making critical comments about [a particular figure in Bangladeshi politics]. He indicated his comments were reported and his account closed. The applicant did not mention making [social media] posts at the first hearing when asked about his political activities in Australia. Despite confirming at the second hearing that he made [social media] posts and that his account was closed, his testimony about this claim seemed intentionally evasive. He said ‘they’ reported his posts and his account closed yet when I asked who ‘they’ were he replied he was not sure and did not even offer a suggestion as to who he thought might have reported his posts. Similarly when I asked when that occurred, for example, whether it was shortly after he arrived or more recently, his reply that it was ‘sometime back’ seemed intentionally vague. When I asked whether he knew who made the threats via [social media], he replied that posts were made by Awami League members and anonymous people, that they used derogatory language, abused his parents and called him an agent of [another country]. He then qualified that they did not abuse his parents directly but said that he did not appear to be a legitimate child. However, none of those comments appear to be threats as such. Further, given that a moment before he did not even suggest who may have reported his posts or when the report and closure of his account occurred, it seemed his subsequent testimony about the Awami League posts and abusive comments were invented to embellish the claim. 

8. In his written statement the applicant stated that if he went back to Bangladesh he strongly feared he would be captured by the police, RAB or members of the Awami League because they are actively looking for him even now. He said he would be taken into custody and detained before being handed over to government party torturers and most probably killed before the next election.  When I asked the applicant who would harm him if he returned to Bangladesh he did not immediately refer to RAB and only mentioned the police when questioned further. Instead he referred to members of the Awami League, and then stated that he believed there was a case against him and more could be filed, that he would be put in gaol and be submitted to Awami League henchmen. Asked to clarify what he meant by being submitted to Awami League henchmen, he replied that the police might keep him in custody or hand him over to the Awami League because the Awami League controls the government and they follow the government. Not only did the applicant not specifically mention the RAB at all but his response seemed a recitation of what he had said in his written statement about what he feared would happen to him if he returned. Even when asked whether he would be harmed by anyone else, he replied ‘mostly the Awami League and police’ but again did not specifically identify the RAB. When asked directly whether he feared the RAB he replied that he did and that when he referred to the police he mainly meant the RAB who do most of the extrajudicial killings and stage crossfires in which members of opposition groups are killed. I do not accept that explanation. His initial response made no mention of extrajudicial killing or being killed in crossfire. Further, if as he claimed in his written statement, the RAB and the police came looking for him in Chittagong, the RAB had come looking for him to kill him, and after his departure from Bangladesh the RAB as well as the police visited his old address in Dhaka looking for him and gathering information, and he strongly feared the RAB or the police or Awami League members would capture him if he returned to Bangladesh, then I do not believe the applicant would have to be prompted and directly asked if he feared the RAB to indicate that he feared the RAB. Nor do I accept that when he referred to the police he mainly meant the RAB. He had identified the police and RAB separately in his written statement a number of times and there was no suggestion in his written statement that he referred to the police and RAB interchangeably or that he referred to the RAB as a subset of the police. The applicant’s failure to mention the RAB when asked who would harm him in Bangladesh suggested that he did not genuinely fear being harmed by RAB and his initial response to being asked the simple question of who he feared would harm him was a mere recitation of the last paragraph of his written statement about what harm he feared rather than a spontaneous response to the question based on a genuine fear of who might harm him.

9. When I questioned why the applicant would be harmed if he returned Bangladesh – whether it was due to his past political activity and the false case, he gave a lengthy reply in which he repeated claims he had made in his written statement regarding some of his past activities but otherwise lacked clarity and he seemed to contradict himself. His response began confusingly. He suggested he would be harmed just due to his political activity, mentioned his role in Bangladesh, being a full-time member but said it was different as he was with the JJD, and that there were two sides – the political and social. He then seemed to attempt to recount details in his written statement[13] rather than give a clear, spontaneous and direct answer to the simple question he was asked. He said he was more involved in the social side and gave an account of how he helped poor people before he then proceeded to mention his popularity and how he would talk to people about their lives, politics and corruption and that people would then join the party even grass roots Awami League workers which made many people angry. When I questioned whether he was claiming he would be harmed due to his popularity, he indicated he would not but on further questioning about being harmed due to his political activity and charitable work he seemed to contradict that, stating that they would be afraid that many people knew him and still know him and they would think that having returned to Bangladesh he would become popular and turn their members against them and recruit more for his party, and if he got that popular it would be harder for them and he would be harmed. I was left with the impression that rather than trying to give a direct answer to my question based on why he genuinely believed he would be harmed if he returned to Bangladesh the applicant was attempting to recall what he had written in his statement.

Information from other sources

[13] See the second half of the first paragraph.

1. According to information in independent sources I have consulted regarding the political situation in Bangladesh when the applicant claims he was targeted due to his political activity, a military-backed caretaker government imposed a state of emergency in Bangladesh in January 2007 forbidding any kind of association, procession, demonstration or rally without government authorisation.  Further, in March 2007 the caretaker government imposed a nationwide ban on all forms of public and private political activities. As a result political parties were forced to shut their offices and even small private meetings in homes were banned. The ban was only partially eased in September 2007 when indoor political activity was allowed in Dhaka but remained in effect elsewhere. As I put to the applicant that information raises doubts about whether he engaged in the political activity he claimed to have engaged in in 2007 because that activity was banned and he had not suggested that he worked in secret or sought permission to undertake political activity. The applicant’s response focussed largely on the illegality and undemocratic nature of the caretaker government. As indicated above the illegality of the caretaker government was a common theme in his evidence at the first hearing. However, that does not address the issue about the severe restrictions that were imposed by the caretaker government during the times he claims to have been attending party meetings and organising rallies.  

2. Further, according to the independent information the main agenda of the caretaker government was to weaken both the BNP and Awami League and in 2007 the caretaker government arranged raids on the homes of Awami League and BNP politicians, and arrested thousands of individuals, including the national leaders of the BNP and Awami League, on various charges claiming they were conducting an anti-corruption campaign. As I put to the applicant, in light of that information and given his profile as a [very young official] of a youth wing, it does not seem credible that the Awami League would have been as focused on him as he claimed, targeting him with very serious threats, kidnapping him and sending henchmen to attack him. I put to the applicant that it would seem the Awami League would have been far more focused on dealing with the fact that they were being targeted by the caretaker government especially given the BNP was already being targeted by the caretaker government. The applicant responded that he was [slightly older], he was not targeted for his position but the work he undertook, he was not the only one targeted, and he was targeted by the caretaker government as well. That response did not overcome my concerns. 

1. Finally, according to the information, during the period that the applicant claims he received serious threats and was kidnapped, political violence including criminal violence connected to political parties declined dramatically. According to Bangladesh human rights organisation Odhikar, as of mid-2007 such violence was at its lowest since 2002. As I put to the applicant, it thus did not seem credible that he was threatened, targeted and harmed in 2007 as he claimed. He responded that the police did not accept his reports but it happened and instead they threatened him. He then repeated the account he had given in his written statement about how the police showed him a gun and threatened to bring a weapons charge against him. Again the applicant seemed to revert to recounting what was in his written statement even though it was not directly relevant to the issue put to him.

2. I note that the applicant addressed some of the above issues further in the statutory declaration made [in] October 2017 after the second hearing. I have had regard to all the oral and written evidence the applicant has presented including the two news reports cited in the statutory declaration of [October] 2017; however I prefer the information I have cited above and conclude that it is not credible that the applicant engaged in the kind of political activity he claims to have been engaged in in Dhaka from mid-January 2007 until he fled in about July 2007, or that he was threatened, targeted and harmed by the Awami League from mid-January 2007 as he claimed.

Delay

1. The credibility of the applicant’s claims is significantly undermined by his delay in applying for the protection visa. Even disregarding that he had a [temporary visa] until June 2011, the delay amounts to five years. The applicant has given various reasons for why he did not apply for protection sooner; however I do not find any of them persuasive. For example, he claims he only planned to stay in Australia for a while until circumstances in Bangladesh changed but that is not credible given that year after year went by without apparent change and he still did not apply for protection. He claims he spoke to [others] about his situation but they were not interested. I do not find that a credible reason for the applicant not to have made other inquiries sooner. He claims he was not aware of the protection visa when he arrived which does not explain why he did not make inquiries more promptly after that about what visa he may have been able to apply for, especially when his [temporary visa] was about to expire or soon after his last [temporary visa] was cancelled. It seems to me that the applicant had the English language skills, intelligence and capacity to find out about the protection visa as well as obtain advice and assistance to apply for the protection visa much sooner and would have done so if his claims were true.

Conclusion on credibility

1. In light of the above issues with the applicant’s testimony, the independent evidence and the significant delay in the lodgement of his protection visa application I have concluded that the applicant and his political and charitable claims are not credible. In reaching that conclusion I have had regard to the applicant’s post-hearing submissions; however they do not overcome my concerns.

2. I note in particular that the applicant stated both at hearing and in writing[14] that his family in Bangladesh is wealthy, so much so that he has not worked since he arrived in Australia almost a decade ago but has been supported by his family. He argues that if his claims were not true he would have returned to what would be a good life in Bangladesh. He said that if his claims were not true he would not have stayed away from his family in Bangladesh for such a long time and at least returned to Bangladesh to see his family while he had a [temporary visa] which permitted him to re-enter Australia. There could be a myriad of reasons which would lead a person not to return to their home country and family. In light of the serious issues I have identified with the applicant’s claims and evidence I thus do not consider this argument persuasive at all.

   [14] See the last paragraph of written statement submitted at hearing on 21 July 2017.

3. In reaching my conclusion about the credibility of the applicant and his claims I have regard to the letters he provided from [Mr B] and [Mr A]. However, given the applicant’s thorough lack of credibility I give those letters no weight.

4. Further, I have concluded that the information provided by [Mr B] in his letter is not reliable. As I raised with the applicant at the first hearing, [Mr B]’s statement that the applicant was currently working hard for the BNP was inconsistent with the applicant’s own testimony (up to that point) that he had not joined the BNP in Australia and ceased his activities with the BNP in 2010. There was no mention in the letter that the applicant had joined the BNP in Australia in November 2016 as he later claimed. There was no indication in the letter that [Mr B] was [an official of] the BNP in Australia as the applicant insisted at the first hearing, nor any indication that [Mr B] held any office with the BNP at the time he wrote the letter on the letterhead of the BNP in Australia. The responses the applicant gave did not address these issues. Instead he merely repeated that he joined the BNP in Australia in November 2016, that [Mr B] had been [an official] in the past, and I could call [Mr B]. I did attempt to telephone [Mr B] during the first hearing but was not able to reach him. The applicant did not request that I take evidence from [Mr B] at the second hearing but in the statutory declaration he submitted after the second hearing he asked the Tribunal to contact [Mr B] about his (the applicant’s) political profile and activities. Given the applicant’s lack of credibility and the unreliability of the information in the letter provided by [Mr B], I decided not to contact [Mr B] as I have concluded that any further information he would provide would not be reliable.

5. Finally, the information which was the subject of the s.424A invitation related to visits the applicant made, while he claimed to be in hiding, to the Australian High Commission in Dhaka regarding his [temporary visa]. Having had regard to the applicant’s response to the invitation I have concluded that it is not implausible that a person who feared for their safety in their home country may take some risks, such as visiting the embassy of another country to obtain a visa, in an attempt to their secure departure from their home country. I have thus given that information no weight in making my decision.

Findings on protection claims

1. Having sighted the applicant’s Bangladesh passport and in the absence of any evidence to the contrary I accept that the applicant is a national of Bangladesh as he claims.

2. At hearing the applicant demonstrated a familiarity with aspects of politics in Bangladesh. However, due to his lack of credibility I do not accept any of the political and charitable claims he has made are true. I do not accept the applicant was a member of nor held any position with the student wing or the youth wing of the BNP in Bangladesh, or that he engaged in any political activity or charitable work in connection with the BNP, its student wing or youth wing, or independently of the BNP, or that he spoke out about corruption within the BNP in Bangladesh. I do not accept that the applicant was harmed by the Awami League, the police, the RAB or anyone else associated with the Awami League including [Mr C] in Bangladesh as he has claimed, or was viewed adversely by anyone connected with the BNP, or that he left Bangladesh because the caretaker government was harassing the BNP. I do not accept that any false cases have been brought against the applicant in the past in Bangladesh. I do not accept that after arriving in Australia the applicant received a threatening call demanding that he return to Bangladesh with [amount] BDT, or that he has had any contact with the BNP, its student wing or youth wing in Bangladesh from Australia, or that he joined the BNP or has engaged in any activities with the BNP in Australia. I do not accept that the applicant made any [social media] posts which attracted adverse attention and led his [social media] account to be closed. Given the BNP is one of two major parties dominating politics in Bangladesh it is not inherently implausible that the applicant supports the BNP. However, due to the applicant’s lack of credibility I do not accept that he is a supporter of the BNP. To avoid doubt that means I do not accept the applicant is ‘an active BNP member’ or ‘a member of Bangladesh diaspora actively supporting the BNP’ as he characterised himself in his response to the s.424A invitation.

3. Having rejected these claims I find that the applicant neither wishes to nor will engage in any political or charitable activity in connection with the BNP, any of its wings or apart from the BNP, or that he wishes to nor will engage in any anti-corruption activity related to the Awami League or BNP or generally if he returns to Bangladesh. Further, I find that the applicant has not engaged in any activity in Australia in connection with the BNP or apart from the BNP that would give rise to a risk of harm if he returns to Bangladesh. I find that as the applicant has not been politically active or undertaken charitable works as he has claimed he will neither wish to nor will engage in any political activity, charitable work or express any opinion in the reasonably foreseeable future in Bangladesh that would give rise to serious harm or significant harm for reasons of actual or perceived opinion or activity. I therefore find that if the applicant returns to Bangladesh he will not face serious harm or significant harm from the Awami League, anyone connected to the Awami League (such as henchmen, criminals or criminal gang members), anyone associated with [Mr C], the police, RAB, any other authority, the BNP, or anyone else in Bangladesh due to any actual or imputed political or charitable past conduct, activity or opinion he has engaged in or expressed in Bangladesh or in Australia. To avoid doubt that means that I do not accept the various submissions made in the representative pre-hearing written submissions about the harm the applicant would face in Bangladesh.

4. Finally, in relation to the claims made by the applicant in his response to the s.424A invitation that he would face harm as ‘the son of [a professional] who was perceived as an active BNP member’ and as ‘a returned from a western country perceived as a wealthy person’, the applicant offered no explanation for not making these claims earlier. Neither claim is based on any obvious new information or event. I note that the applicant had previously referred to his father being [a professional] who had been involved in politics in the past and knew people in the BNP but the applicant had not made an express claim that his father’s occupation or profile placed the applicant at risk of harm. The applicant had ample opportunity to raise those claims through his representative in the pre-hearing submission, over the course of two hearings, in the written statement he presented at the first hearing, and in the statutory declaration he submitted after the second hearing. His failure to do so indicates that he does not genuinely fear harm for these reasons.

5. The applicant has consistently claimed that his father was [a professional] in Bangladesh. Given that consistency and as it is not implausible, I accept that the applicant’s father was [a professional]. However, the applicant told the delegate and testified at hearing that his father retired in December 2015 and thus has not been [a professional] for some time. Further, the applicant referred in the written statement he presented at the first hearing to his father’s ‘long career in politics’ and that he was a friend of many high ranking BNP leaders and members because of his long political career. However, when I questioned the applicant at hearing about his father’s political activity the applicant confirmed, as indicated in that written statement, that his father was politically active as a student but had he ceased his political activity before the applicant was even born at the request of his father (the applicant’s grandfather) and to take up [a professional position]. Given the applicant’s general lack of credibility, the fact that his father is no longer [a professional], his father has not been politically active in decades, I have rejected the claims the applicant has made about his political activates in Bangladesh, I do not accept that the applicant’s father is friends with BNP leaders and members, has any association with the BNP, or that he will be perceived to be an active BNP member. I thus do not accept that the applicant will be harmed in Bangladesh as the ‘son of [a professional] who was perceived as an active BNP member’ (whether the reference to being perceived as an active BNP member is meant to refer to the applicant or his father)

6. The applicant cited five articles in support of his claim to fear extortion by Awami League supported criminal gangs as a returnee from a western country perceived to be wealthy. However, the articles do not concern returnees from western countries let alone ones who are perceived to be wealthy. They almost exclusively relate to the extortion of businesspeople which the applicant is not nor has he suggested he will be in the foreseeable future. As already indicated above, the applicant claims his family in Bangladesh is wealthy but has not claimed that he is at risk of harm due to his family’s wealth.  Given the applicant had ample opportunity to raise the claim that he would be targeted as a returnee from a western country due to his perceived wealth but only did so belatedly, his general lack of credibility and the absence of credible evidence before me to support the claim, I do not accept that the applicant will be extorted by gangs that are passively or actively supported by the Awami League because he is a returnee from a western country perceived to be wealthy.

7. In conclusion, having rejected the claims made by the applicant I find that there is not a real chance the applicant will face persecution or significant harm for the reasons he has claimed if he returns to Bangladesh. 

Findings on criteria

1. I have rejected the protection claims made by the applicant and thus found that there is not a real chance he will face persecution in Bangladesh for the reasons he has claimed. Consequently, I find that he does not have a well-founded fear of persecution as defined in s.5J in Bangladesh and thus is not a refugee as defined in s.5H. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I must consider the alternative criterion in s.36(2)(aa). However, as I have rejected the protection claims he has made and found that there is not real chance that he will face significant harm in Bangladesh, I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, there is a real risk that the applicant will suffer significant harm. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. 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 criteria in s.36(2).

DECISION

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

Mila Foster
Member