1616989 (Refugee)

[2019] AATA 3416

1616989 (Refugee) [2019] AATA 3416 (4 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1616989

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Nathan Goetz

DATE:4 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 June 2019 at 12:18pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – particular social group – wealthy Bangladeshi – allegedly kidnapped and harmed in demand for ransom – returnees from Australia – perception of wealth – assimilation into Australian society – credibility issues – vague and contradictory claims – delay in applying for protection visa – omission of key claim in original application – lax approach to the truth – 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 refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the protection visas on 4 January 2016 and were refused the visas on 21 September 2016. On 13 October 2016, they applied to the Tribunal for a review of the refusal decision and attached a copy of the delegate decision to the application for review.

3. The applicants appeared before the Tribunal on 13 September 2018 to give evidence and present arguments. The hearing was conducted with the assistance of a Bengali interpreter.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicants are [the first named applicant] ([age]), his wife [the second named applicant] ([age]) and their three children [the third named applicant] ([age]), [the fourth named applicant] ([age]) and [the fifth named applicant] ([age]). The applicants were all born in Bangladesh and are citizens of that country.

11. [The first named applicant] has a history of travel to and from Australia. He first arrived in Australia [in] August 2011 having been granted a UC457 visa, and departed almost four months later [in] February 2012.  [In] March 2012, he arrived in Australia before departing a month later [in] April 2012. [In] May 2012, he arrived in Australia before departing just over two months later [in] August 2012. [In] October 2012, he arrived in Australia before departing two weeks later [in] November 2012. [In] January 2013, he arrived in Australia and has remained there since that time.

12. On 6 May 2014, his UC457 visa was cancelled, and on 6 January 2016 he applied for a protection visa.

13. [The first named applicant]’s wife and three children were all granted UC457 visas as dependents of [the first named applicant]. They all arrived in Australia [in] August 2011 and have remained in Australia since that time. As dependents on [the first named applicant]’s visa, their visas were also cancelled on 6 May 2012. On 6 January 2014, [the first named applicant]’s wife and their three children applied for protection visas.

    Claims made in written protection visa application

14. As the [children] had spent their formative years in Australia and had been brought up in Australia, it was claimed that they would face discrimination and persecution in Bangladesh because Australian culture and social norms conflict with the ones in Bangladesh.

15. [The first named applicant] claimed that he feared persecution because people would think that as he had lived overseas for a long time, he would have a lot of money and he would be targeted because of this perceived wealth.

16. [The first named applicant] claimed that during his last visit to Dhaka, he was kidnapped and taken to a remote place. He was blindfolded and his captors demanded money from him, and threatened to kill him. His captors did this because they knew he was a good businessman in Bangladesh and was now doing business in Australia. [The first named applicant] wrote that he did not know what to do and he was tortured badly. He wrote that his captors also threatened to kill his family if he did not pay their monetary demands.

17. [The first named applicant] claimed that he gave the captors the contact details of his nephew following a period of torture, during which he suffered multiple injuries to his body. He wrote that he was held for three days and during this time, he overheard his captors discussing how the captors would kill [the first named applicant]. From the conversation that [the first named applicant] heard, he understood that the money being demanded was probably being demanded on behalf of the current ruling government party in Bangladesh and its party members.

18. [The first named applicant] wrote that one of his family members paid money to his kidnappers and he was forced to sign a document where he agreed to pay the rest of the money upon his release. [The first named applicant] promised to send the money in three months’ time if he was released and allowed to return to Australia. His captors told him that when he arrived back in Australia he would need to send the remaining money to them by international transmission. [The first named applicant] wrote that as that time had expired, he is very scared to return to Bangladesh as these politically motivated people could find him and kill him or his family if he returned because he did not have any money to pay the demands.

19. [The first named applicant] wrote that he did not seek help within Bangladesh because he would be killed for doing so. He wrote that the Bangladesh government does not have the mechanism to protect its citizens from harm. He wrote that he did not move or try to move to another part of Bangladesh because he sought medical help to cure his injuries because he was badly hurt and the prospect of persecution arose while he was in Australia. He would not be able to relocate to another part of Bangladesh because this problem would persist regardless of where he went.

20. In the individual written protection visa applications, [the second named applicant] and the three children did not raise their own claims for protection, and claimed that they should be granted protection visas in Australia on the basis as being members of the same family group as [the first named applicant]. The Tribunal understands that despite this, given the way [the first named applicant]’s protection claims are made, [the first named applicant]’s family also claim that they are at risk of harm because of the threats made to [the first named applicant]. The children also have their additional claims of being discriminated against because they have grown up and been educated in Australia.

    Additional material submitted by the applicants

21. The migration agent provided a submission dated 12 September 2018 which detailed the background of the protection visa application. It confirmed [the first named applicant]’s claim that on his last visit to Bangladesh [the first named applicant] was kidnapped, confirmed, tortured and was subjected to a ransom demand and threat of death. The submission noted an error with the delegate decision where the delegate detailed that the last Australian exit and entry of [the first named applicant]. The delegate wrote that [the first named applicant] departed Australia [in] November 2012 and retuned [in] January 2012. This was clearly a typographical error and should have read [January 2013] (For the sake of completeness, the migration agent also wrote the year incorrectly, instead referring to 2018). The submission claimed that [the first named applicant] and his family had not travelled overseas or to Bangladesh since [the first named applicant] arrived in Australia [in] January 2013 because they are at risk of being kidnapped and killed. The submission noted that [the first named applicant] had provided a further statement in support of his claims that he was subjected to kidnapping, torture, confinement and ransom which the Tribunal will discuss below. The submission noted that [the first named applicant] has provided evidence that when he was in Bangladesh on his last visit, he was subjected to torture and that his captors demanded money to release him or that he would be killed. The submission noted that the applicant stated that he negotiated with his captors, and [the first named applicant]’s nephew was able to provide the necessary funds to the captors as promised, with the necessary funds being payable upon [the first named applicant]’s release. [The first named applicant] did not pay the balance but exited Bangladesh and travelled to Australia to be with his family. During his captivity, [the first named applicant] was tortured and injured and had to be hospitalised.

22. The submission details that the applicant claims that he and all his family have attended educational institutions and earned qualifications. The submission notes that the applicant and his wife studied English and that two of his sons have attained [specified] qualifications, and that his youngest child attends [school]. The submission also notes that [the first named applicant] has participated in local social services and assisted [an Australian political party] in their previous council elections and had been awarded a Certificate of Appreciation for his work.

23. The further written statement signed by [the first named applicant] on 9 September 2018 detailed the following:

24. [The first named applicant] claims that on 6 January 2013, after he finished work, he was travelling home in a taxi cab that was intercepted by microbus. Three masked me holding came out of the bus and asked him to open the taxi door. They threatened to kill [the first named applicant] and took him into their microbus. He was blindfolded, sat down and as abused in bad language. He was hit on the head with the butt of the pistol. It was an extreme and dire situation and he was told that he needed to sit down and shit up. He was threatened that he would be killed if he shouted. His hands were tied behind his back and [the first named applicant] was taken to a house and removed from the car. He did not see where he was and thinks he was put in a chair.

25. A man asked [the first named applicant] how he was in a normal voice. The man then said to the applicant that the applicant had gone to Australia. [The first named applicant] wrote that he understood that the captors knew him because [the first named applicant]’s business was doing very well. The captors offered [the first named applicant] a cup of tea. They said to [the first named applicant] that as he had lived in Australia, he could take care of the captors with 5 crore takas or he would be killed. The captors told the applicant that it costs a lot for them to run their Party. [The first named applicant] released that the captors belonged to the current ruling party. He was told that if he did not make the payment, he would be killed, as would his wife and children. He was hit with the pistol and was physically tortured. He lost consciousness because of the pain and anguish.

26. The applicant detailed that his nephew [was] called from [the first named applicant]’s mobile so the payment could be made. [The first named applicant] asked his captors for a chance of survival, and told them that he could not give them so much money at once. He asked how much he could pay now and pay the rest at a later date. [The first named applicant] said that as soon as he said this, he was dunked in water and he was tortured like this for a long time. He called his nephew and was put on loudspeaker. The captors told [the first named applicant] to ask his nephew for 20 lakh takas. If [the first named applicant] tried any trick, he would be killed. His nephew told him, through tears, that he would try to help [the first named applicant].

27. On the third day, his nephew called [the first named applicant] from a friend’s mobile phone. [The first named applicant] was hit again with the pistol. The phone was again put on loudspeaker and [the first named applicant]’s nephew said that he had managed to obtain 10 lakh takas. While this conversation was occurring, [the first named applicant] was being beaten and [the first named applicant] shouted in pain. [The first named applicant]’s nephew said he could not get the total amount that the captors demanded. The captors told [the first named applicant]’s nephew to come to [Area 1], an area near Dhaka at night with the ransom. The captors warned [the first named applicant]’s nephew that if there was a trick, he would be killed. [The first named applicant] was told by the captors to put his signature on a blank sheet of paper, which he did. The captors they cut the applicant’s tendons on his right ankle, and [the first named applicant] cried and lost consciousness. He was told that there would be serious consequences if [the first named applicant] did not pay the total of 5 crore take. The cutting of the tendons was a sample of what could happen. [The first named applicant] was then taken into the car and was eventually thrown to the side of the road, with his captors leaving him there.

28. His nephew took [the first named applicant] to the hospital and told [the first named applicant] that he had paid the 10 lakh takas. A man had jumped out of the car, checked the money and had taken it. The captors then threw [the first named applicant] out of the car and shouted that they needed the balance of the ransom to be paid or the captors would kill [the first named applicant]. This occurred on 9 January 2013.

29. After this incident, [the first named applicant]’s relatives in the village collected money and put it in his bank account. On 13 January 2013, he withdrew this money and paid his nephew back. [The first named applicant] wrote that he was fearful and scared. When he got better, he left Bangladesh and returned to his family in Australia [in] January 2013.

30. Attached to the submission were the following documents:

    i.    A photocopy of the receipt page of a personal bank cheque book which reads that on 13 January 2013 there was a payment to cash of 10 lakh takas from the account of [a company], and a bank statement from [a bank] which reads that [in] January 2013 that amount was withdrawn from the account.

    ii.    Five photographs of [the first named applicant] where he displays his lower right leg.

    iii.    A discharge certificate of from [Medical Centre 1] dated 12 January 2013 which states that on 9 January 2013 [the first named applicant] had an operation for repair of his right Achilles tendon which required two stiches. He was discharged from the hospital on 12 January 2013.

    iv.    A death certificate from the Bangladesh Office of the Registrar of Birth and Death to confirm the death [in] September 2016 of [Ms A], and a death certificate from the Bangladesh Office of the Registrar of Birth and Death to confirm the death [in] July 2018 of [Mr B], who are the parents of [the second named applicant].

    v.    In relation to [the first named applicant], [an Australian State 1] photo card, [an Institute 1], a transcript of academic record from [Institute 1] which shows that [the first named applicant] is eligible to receive a [qualification] as at 2 July 2018, a confirmation of enrolment from [Institute 1] which shows that [the first named applicant] was enrolled in a [course] as at 21 June 2018, a  confirmation of enrolment from [Institute 1] which shows that [the first named applicant] was enrolled in a [course] as at 31 January 2018, and timetables showing [the first named applicant]’s classes for Semesters 1 and 2 of 2018. [the first named applicant] also produced a Certificate of Appreciation awarded on 8 October 2017 from [an Australian political party] for assisting in [a] Council Election of September 2017, and also provided a copy of [a] form where [the first named applicant] was [in a certain role] for [a] candidate in [the] Council Election of September 2017.

    vi.    In relation to [the second named applicant], a [Australian State 1] photo card, [an Institute 1] card, a statement of attainment from [Institute 1] for [the second named applicant] for her [course] dated 22 June 2018, a confirmation of enrolment from [Institute 1] which shows that [the second named applicant] had enrolled in a [course] as at 9 February 2018, a confirmation of enrolment from [Institute 1] which shows that [the second named applicant] had enrolled in her [course] as at 9 February 2018, and timetables showing [the second named applicant]’s classes for Semesters 1 and 2 of 2018.

    vii.    In relation to [the fourth named applicant], [an Australian State 1] Learner driver licence, [an Institute 1] card, a [specified qualification] awarded to [the fourth named applicant] on 22 June 2018, and [an Institute 1] confirmation of enrolment in [the same qualification] for [the fourth named applicant] as at 13 July 2017.

    viii.    In relation to [the third named applicant], [an Australian State 1] driver learner permit, [an Institute 1] card, a [qualification] awarded to [the third named applicant] on 22 June 2018, and [an Institute 1] confirmation of enrolment in [the same qualification] for [the third named applicant] as at 13 July 2017.

    ix.    In relation to [the fifth named applicant], a confirmation of enrolment at [a named school] for Year [number] in 2019 as at August 2018.

    FINDINGS AND REASONS

1. [The first named applicant], his wife, and two of their three children ([the third named applicant] and [the fourth named applicant]) gave evidence at the Tribunal hearing. The youngest child [the fifth named applicant] was at school and did not appear at the Tribunal. The Tribunal is satisfied that the applicants are all members of the same family unit, are citizens of Bangladesh and no other country, and that the receiving country for the purpose of the protection visa assessment is Bangladesh.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Past Harm in Bangladesh because [the first named applicant] is perceived as a ‘wealthy Bangladeshi’, and the risk to both [the first named applicant] and his family on return to Bangladesh

3. Tribunal has before it [the first named applicant]’s application for the UC-457 visa and it contains numerous documentation to demonstrate his employment history in Bangladesh. It is clear that [the first named applicant] operated a successful business in Bangladesh. However, the Tribunal does not accept that [the first named applicant] was kidnapped and held for ransom in Bangladesh, that he or his family had to pay money to secure his release, nor that he or his family have been threatened in the past because [the first named applicant] was is a wealthy businessman, or indeed for any other reason. The Tribunal is able to make those findings for the following reasons:

4. Firstly, there has been a significant delay between the last time that [the first named applicant] arrived in Australia ([January 2013]) and when he and his family lodged their application for protection (4 January 2016). In the circumstances of this case, [the first named applicant] claims that he was kidnapped and threatened on his last visit to Bangladesh. The Tribunal notes that the applications for protections were filed after the UC457 visas were cancelled.

5. The Tribunal found [the first named applicant] to be an evasive witness when it asked him questions about how his brother [came] to be in Australia, noting that [the first named applicant]’s brother had been in Australia for about 20 years. [The first named applicant] told the Tribunal that his brother came to Australia on a [temporary] visa and that he found this out from his ‘family.’ He then told the Tribunal that it was his brother who told him this. The Tribunal asked [the first named applicant] how his brother came to remain in Australia if his brother came out on a [temporary] visa some 20 years ago. [The first named applicant] said that it was a result of ‘ministerial intervention’. The Tribunal asked him how he came to know about this and [the first named applicant] said he found out about this from his ‘family’. When asked to be more specific, [the first named applicant] said it was his brother’s nephews in Bangladesh who told him this. This happened when [the first named applicant] was in Bangladesh and he and his nephews were living in the same place. [The first named applicant] said he did not speak to his brother about his ministerial intervention because in Bangladeshi culture, you respect your elders (his brother being 7 years older than him), so they did not have much conversation about this. The Tribunal asked [the first named applicant] whether he had any conversation specifically with his brother about his brother’s ministerial intervention and he said he did not have any direct conversation with his brother about ministerial intervention. [The first named applicant] told the Tribunal that his brother’s current status in Australia was an Australian citizen. Before the awarding of citizenship, [the first named applicant] told the Tribunal that his brother was ‘probably on a refugee visa’.

6. The Tribunal asked why [the first named applicant] said ‘probably’. [The first named applicant] told the Tribunal that he said ‘probably’ because at the time [the first named applicant] was not here and he was not sure about the system and that is why he said probably. The Tribunal was perplexed as to why he would say probably and say refugee visa. The Tribunal pressed [the first named applicant] further about whether he actually knew whether his brother was here as a refugee. [The first named applicant] said that he came to know about this through his nephews in Bangladesh. It was the same conversation that he had with his nephews when they discussed [the first named applicant]’s brother applying for ministerial intervention to remain in Australia. The Tribunal wanted to know when [the first named applicant] had the conversation with his nephews in Bangladesh where [the first named applicant] was advised that his brother was in Australia because of ministerial intervention and because he was seeking a refugee visa. [The first named applicant] told the Tribunal that he could not remember the date because he had an accident and sometimes he could not give a correct account, but [the first named applicant] did confirm that he had this conversation with his nephews before the first time he came to Australia in 2011.

7. The Tribunal went down this line of questioning because it wanted to establish when [the first named applicant] became aware he could seek protection in Australia. Clearly, if [the first named applicant] was aware that he could seek protection in Australia from a conversation with his nephews, this may have an impact on the date that [the first named applicant] and his family lodged their protection applications.

8. When it came to questioning [the second named applicant] about how she came to find out about applying for protection in Australia, she told the Tribunal that she heard about this from ‘many people’. She told the Tribunal that she heard about this from [the first named applicant]’s brother about 2 years prior to lodging the protection visas. [The second named applicant] told the Tribunal that [the first named applicant]’s brother did not tell her anything about protection visas, but told her husband [the first named applicant] about them. [The second named applicant] told the Tribunal that she heard her husband and his brother talking about protection visas. She was in the room at her brother-in-law’s house when there was this discussion between her husband [the first named applicant] and his brother which was the first time she learned about protection visas.

9. The evidence about how [the first named applicant] and his family came to know that they could apply for protection visas in Australia was contradictory and unsatisfactory. On one hand, [the first named applicant] says that he is aware in 2011 that a person could apply for protection in Australia because that is how his brother has remained in Australia (although this knowledge comes from his nephews in Bangladesh because he was not spoken to his brother about this). On the other hand, [the second named applicant] told the Tribunal that the first time she became aware of protection visas was two years prior to lodging the protection visa applications, and that was as a result of the discussion between [the first named applicant] and that brother. Utilising the procedure under s.424A of the Act, the Tribunal raised the conflicting evidence with both applicants. It appeared to the Tribunal, that this evidence demonstrated that the applicants were not witnesses of truth and were fabricating their evidence to provide an explanation for the delay in lodging the protection visa applications. In [the second named applicant]’s case, it was an attempt to explain why the protection visas were only lodged in 2016, and in [the first named applicant]’s case, it was an attempt to suggest to the Tribunal that he had no idea about protection visas from conversations with his brother. The Tribunal was troubled that something as basic as when [the first named applicant] and [the second named applicant] became aware they could apply for protection in Australia was met with vague and evasive evidence.

10. The Tribunal notes that [the first named applicant] gave evidence that his UC-457 visa (and that of his family) came to an end because the company he was nominated by was liquidated. He said he was trying to find another company to sponsor him. The company was liquated in June or July 2013. He did not let the department know because he did not know the ‘legal path’. He hoped he would be able to transfer to another company. He told the Tribunal that he could not recall how he became aware that his UC-457 visa was no longer in affect, but then told the Tribunal that another nephew [put] [the first named applicant]’s details into the computer and found out in 2014 that this visa was no longer in affect. At the time, [the first named applicant] said he did not know what he should do so he decided to apply for a protection visa because there was no chance that he could return to Bangladesh. The Tribunal queried why [the first named applicant] waited until 2016 to apply for protection visas in 2014 if he came aware that the UC-457 visa expired in 2014. [The first named applicant] said that he apologised for the delay and at the time he did not know what to do.

11. [The second named applicant] responded to the Tribunal’s concerns about when she became aware of protection visas by stating that she was outside the room when [the first named applicant] and his brother had the discussion. In the Tribunal’s view, this was an attempt to suggest to the Tribunal that [the second named applicant] may have been mistaken about the conversation. The Tribunal noted that [the second named applicant] had previously given evidence that she was in the room when the discussion occurred and it appeared that she was shifting her evidence. [The first named applicant] responded to the concern by accepting that the evidence was different but provided no further comment.

12. In the Tribunal’s judgment, it is a nonsense to suggest that [the first named applicant], who gave evidence that he was assaulted in 2013 while in Bangladesh, left Bangladesh shortly thereafter to never return because of fear of further harm to him and his family, was hospitalised and called his wife from hospital (as claimed by [the second named applicant]) and told her about the assault, knew that his brother was in Australia because of ministerial intervention and refugee concerns from a conversation with his nephews prior to [the first named applicant]’s first arrival in Australia in 2011, was in contact with his brother in Australia (as he told the Tribunal), yet never spoke to his brother about claiming protection in Australia (on [the first named applicant]’s evidence), and delayed making an application for a protection visa until 2016. In the Tribunal’s view, if [the first named applicant] had been assaulted and threatened as he had claimed, and knowing that his brother was in Australia due to ministerial intervention/refugee application, he and his family would not have waited until 2016 to lodge a protection visa application. The concern that the Tribunal has about this evidence is compounded by the fact that [the second named applicant] gave evidence that there was in fact a conversation between [the first named applicant] and his brother claiming protection in Australia in 2014, when [the first named applicant] gave evidence that they had never spoken about such things. Even if the Tribunal accepted that such a conversation took place, it was only in 2016 that [the first named applicant] and his family lodged protection visa applications. The delay in this case would, in the Tribunal’s view, undermine the claim of genuine fear of returning to Bangladesh. The Tribunal struggles to think that if there was a discussion between [the first named applicant] and his brother about protection visas in Australia in 2014, that [the first named applicant] and his family would only lodge a protection visa in 2016 if their concerns for harm were genuine.

13. Secondly, both [the first named applicant] and [the second named applicant] gave evidence that the medical report from [Medical Centre 1] had been brought with [the first named applicant] when he last arrived in Australia in January 2013. However, a copy of that documentation was not provided with the protection visa applications despite it being in the possession of the applicants. To the Tribunal’s way of thinking, such a document would have been included in the protection visa application if the applicant’s claims that he was hospitalised due to injuries sustained in the kidnapping was genuine, as it would be a document that the applicants would argue is capable of corroborating the evidence of the kidnapping. [The first named applicant]’s evidence that he failed to include the document in his application for protection visa because he was not aware that it was required, be thought it might be required later, is not persuasive. The Tribunal notes that it put to the applicant that document fraud is prevalent in Bangladesh, but, having reflected on the matter further, the Tribunal is not satisfied that the certificate is fraudulent. The Tribunal notes the evidence from [the first named applicant] that the photographs of [the first named applicant] displaying his ankle were taken four or five days prior to the Tribunal hearing by his agent. The Tribunal is satisfied that the applicant had surgery as outlined in the medical certificate, but because of the concerns that the Tribunal has with the truthfulness of the applicant’s oral evidence to the Tribunal, is not satisfied that the surgery was the result of any kidnapping or harm perpetrated on [the first named applicant].

14. Thirdly, the Tribunal raised with [the first named applicant] the concerns it had about the fact that his claimed kidnapping was not raised until his ‘second application’ for a protection visa. The Tribunal notes that on 5 January 2016, [the first named applicant] lodged a completed ‘Form C’ of his protection visa application which is a document that provides for ‘personal details for each person included in this application’. Filed with his completed ‘Part C’ was a completed ‘Part B’ which detailed the ‘persons included in the application and family composition’. [The first named applicant] told the Tribunal that he was contacted by the department after these forms were lodged and was advised that each member of his family needed to complete a ‘Form C’. On 15 January 2016, the department received those completed ‘Form Cs’ for the rest of [the first named applicant]’s family, together with another Form C from [the first named applicant] himself. It was in this second ‘Form C’ that [the first named applicant] raised the incident of the kidnapping, hospitalisation and threats. His first ‘Form C’ only wrote about the harm that would come to his children because they had ‘been raised’ in Australia and would be discriminated against if they returned to Bangladesh. Earlier in the hearing, [the first named applicant] told the Tribunal that his nephew [helped] him complete the first ‘Form C’ (despite there being no such notation on the Form), and [the first named applicant] told the Tribunal that his nephew went through each question one by one, translated them for him, and wrote the responses [the first named applicant] provided. In the second ‘Form C’ completed by [the first named applicant], he said that he resubmitted this because in the first ‘Form C’ he could not submit what he wanted because he was not mentally fit enough to cope. He said he could not recall everything that happened and could not explain himself.

15. [The first named applicant] told the Tribunal that he had a few friends who helped him complete his second ‘Form C’. The Tribunal asked him to name them. [The first named applicant] said one had a name of [Mr C] but he did not know his second name. There were two other people but he did not know their names. He told the Tribunal that he met [Mr C] one day at a train station in March or April 2013. He used these people to complete ‘Form C’ because he realised his nephew had not filled the form out in accordance with [the first named applicant]’s expectation. The Tribunal tried to find out more information about [Mr C] and the other two unidentified friends. [The first named applicant]’s said that he met [Mr C] randomly, does not have his telephone number, [Mr C] was a student, and he saw [Mr C] one day at a train station again and asked him to come back to [the first named applicant]’s place to help him fill out the second ‘Form C’.

16. The Tribunal was not persuaded by this evidence about the omission to raise the kidnapping, injuries and hospitalisation in [the first named applicant]’s original application, and the circumstances about how this information came to be included in the second application. [The first named applicant]’s evidence was vague to the point of incredulity about [Mr C] and the two friends. It is a very odd coincidence that between [the first named applicant] lodging his first Part C form and his second ‘Form C’, [the first named applicant] just happened to meet [Mr C] again at the train station and was able to get [Mr C] and his friends to complete the second ‘Form C’. The Tribunal is satisfied that if it were true that [the first named applicant] was harmed as he claimed in Bangladesh, that information would have been included in his original ‘Form C.’ The Tribunal is satisfied that it was only included in the second ‘Form C’ because [the first named applicant], or more probably, someone overlooking his application, decided that it needed to include an incident of specific harm against [the first named applicant] for it to be credible. The Tribunal is not persuaded by [the first named applicant]’s evidence about why he failed to raise the kidnapping incident in his original ‘Form C’ or the evidence given about how he came to submit a second ‘Form C’. The Tribunal’s assessment of [the first named applicant]’s evidence was that he was deliberately vague and evasive.

17. Fourthly, the Tribunal is not persuaded by the documentary evidence provided to assert that [the first named applicant] reimbursed his nephew for the money his nephew paid to secure [the first named applicant]’s release from the kidnappers. [The first named applicant] produced the cheque book to the Tribunal and the Tribunal went through the chequebook. On the same say (13 January 2013) that [the first named applicant] apparently wrote a cheque to his nephew [to] reimburse him the 10 lakh takas, there is also a receipt tab for another deduction (3 lakh takas), a record of which was not contained on the bank statement which had been produced to the Tribunal. [The first named applicant] gave evidence that the 10 lakh takas that his nephew managed to raise for the kidnapping demand was through friends. [the first named applicant]’s evidence was that he wrote a cheque for 3 lakh takas payable to his nephew to part repay that money to his nephew’s friends. However the friends refused to accept part payment and required the entire 10 lakh takas to be repaid, so [the first named applicant] wrote his nephew another cheque for 10 lakh takas so that money could be repaid in full. Given the concerns that the Tribunal has the with the credibility of [the first named applicant]’s evidence as noted throughout this decision, the Tribunal does not accept the deduction of 10 lakh takas from the account provided was made for the reason as claimed by [the first named applicant].

18. The Tribunal notes the provision of two articles provided by the applicants about disappearances in Bangladesh (‘Bangladesh disappearances ‘a matter of grave concern’, Aljazeera online, 26 December 2017) and ‘Horrific tale of kidnap, The Daily Star online, 15 March 2018). The Tribunal accepts that kidnappings with ransom demands occur in Bangladesh, but due to the concerns that the Tribunal has with the credibility of the claims made about the kidnapping, harm and demands made regarding [the first named applicant], it gives no weight to the articles. The Tribunal also notes that [the first named applicant] demonstrated an appalling approach to the truth when giving evidence about these articles. Noting that these articles were provided on the day of the hearing and were only produced when the Tribunal made observations about a lack of adverse information about the treatment of returnees to Bangladesh, [the first named applicant] told the Tribunal that he had some things to submit to the Tribunal. The Tribunal asked [the first named applicant] what it was he wanted to submit. [The first named applicant] told the Tribunal that that he had some articles from the internet. He told the Tribunal he was not sure about the contents of the articles but they were about the present situation in Bangladesh, where people are getting set on fire, there is arson, arrests and harassment. After some further probing by the Tribunal about when [the first named applicant] obtained those articles, [the first named applicant] then told the Tribunal that his agent had provided them to [the first named applicant] that morning. The Tribunal asked [the first named applicant] why he had earlier told the Tribunal that [the first named applicant] had gotten those articles from the internet when it was in fact his agent who had given them to [the first named applicant]. [The first named applicant] said he was sorry. The agent confirmed that the agent provided them that morning and the Tribunal indicated its displeasure about material being presented in such a way. In the Tribunal’s view, of the migration agent wished to put material before the Tribunal he should have done so at the start of the hearing, and not left it to [the first named applicant] to produce country information. The Tribunal was troubled that [the first named applicant] was dishonest about something as simple as where the articles were obtained from, and this demonstrated to the Tribunal that [the first named applicant] had a flexible approach to telling the Tribunal the truth. This made the Tribunal very weary of believing [the first named applicant]’s evidence.

1. The Tribunal acknowledges that [the second named applicant] was able to tell the Tribunal that her husband had been kidnapped and assaulted (including the date), and the children who gave evidence were able to tell the Tribunal broadly that there father had been in trouble in Bangladesh and that as a result, the family were at risk of harm if they returned to Bangladesh. The Tribunal also understands from the provision of the death certificates (they are [the second named applicant]’s parents) that the certificates were provided to show that, despite the deaths of the applicants’ close relatives, they were too fearful to return to Bangladesh for the funerals. However, the Tribunal does not find this evidence persuasive. In the Tribunal’s evaluation of the evidence, [the second named applicant] and her children learned the narrative about the past harm in Bangladesh in an attempt to provide corroborative evidence to the Tribunal so that the Tribunal would believe that [the first named applicant] had been harmed in Bangladesh. The Tribunal does not accept that it should rely upon this corroborate evidence because of the concerns that the Tribunal has expressed about the failure of [the first named applicant] to mention the kidnapping incident in his first Part C form, the delay in the application for protection, and the inconsistent evidence provided to the Tribunal about whether [the first named applicant] ever had a discussion with his brother about protection visas in Australia. The Tribunal cannot place any weight on the evidence given by [the first named applicant] and [the second named applicant] because of these concerns.

2. When considering these claims individually and on a cumulative basis, the Tribunal does not accept that [the first named applicant] was kidnapped, harmed, hospitalised, that threats were made, or that [the first named applicant] had to pay a ransom to secure his release. The Tribunal does not accept that there is any outstanding amount due for this kidnapping. The Tribunal is not satisfied that the reason [the first named applicant] last left Bangladesh was due to the alleged kidnapping or the resulting ransom. It follows that the Tribunal does not accept that [the second named applicant] nor she and [the first named applicant]’s children are at any risk of harm because of the alleged kidnapping and ransom. The Tribunal is satisfied that these claims have been fabricated as a means of the applicants remaining in Australia following the cancellations of the UC-457 visas.

   Risk of discrimination and other harm to the applicants on their return to Bangladesh because they have spent time in / assimilated into / Australian society

3. The Tribunal tried to ascertain from [the first named applicant] how the documents he submitted about involvement in the [Australian political party], and the educational achievements of his family in Australia were relevant to the protection applications. [The first named applicant] told the Tribunal that the documents could be disregarded if the documents were not relevant. The Tribunal told the applicant that it was a matter for them to submit they wanted, but the Tribunal wanted to know why these documents were relevant to the protection visa applications. [The first named applicant] told the Tribunal that that he provided this documentation because the agent has requested that that the applicants provided information about what the applicants had been doing in Australia. The Tribunal accepts that the applicants have made use of their time in Australia, and accepts that they have engaged in community activities and education achievements.

4. The Tribunal notes the evidence given by (and in the case of the youngest child, on behalf of) [the first named applicant] and [the second named applicant]’s children. [The third named applicant] gave evidence that apart from the threats made to his father, there was no reason why he feared returning to Bangladesh. The evidence on behalf of [the fifth named applicant] (in addition to the claim that he was fearful because of what occurred to his father) was that [the first named applicant] did not think his child could go back to school in Bangladesh because there was too much happening over there, and it is a different system. Education in Bangladesh involves a different language, and it is different to Australia. [The fourth named applicant]’s evidence was that (in addition to the claims raised that he would be targeted because of what happened in Bangladesh with his father) was that because he ([the fourth named applicant]) cannot read and write Bengali, and had come to Australia really young, so studying and obtaining a job in Bangladesh would be very difficult for him. The Tribunal understands that the claims from [the first named applicant] is that people in Bangladesh  will think that because the applicant (and indeed his family) have lived overseas for a long time (since 2011), that they must have a lot of money and this will result in [the first named applicant] and his family being targeted for money.

5. As noted at the hearing, there is no evidence to suggest that recent returnees from likeminded countries to Australia have received adverse attention from authorities or others (DFAT Country Information Report – Bangladesh, 2 February 2018 at 5.22). There was nothing presented to the Tribunal that was persuasive to suggest that that the applicants will be harmed against because (in the case of the children) they have ‘grown up’ in Australia, nor that because [the first named applicant] and [the second named applicant] have undertaken educational activity, been involved in social activities, or in the case of [the first named applicant], worked in Australia, they would be harmed because of a perception of wealth or because they had been assimilated into Australian society. There is nothing before the Tribunal to suggest that overseas Bangladesh nationals who return to Bangladesh are discriminated against because they had ‘assimilated’ into Australian society. The Tribunal does not accept that [the first named applicant], or any members of his family, will be targeted because they are perceived as being wealthy from their time in Australia. The Tribunal notes that [the first named applicant], his wife and children have had the benefits of English language courses, educational and skills training from their time in Australia. In the Tribunal’s judgment, these skills will make the applicants highly regarded in terms of future prospects in Bangladesh.

   CONCLUSION

6. The Tribunal was confronted with a combination of evidence that was vague, evasive and contradictory about past claims of harm in Bangladesh and the circumstances in which the applicants came to apply for protection in Australia. Coupled with a delay in applying for protection, omission of past incidents of harm, and a demonstration of a lax approach to the truth on behalf of [the first named applicant] and [the second named applicant], the Tribunal cannot with any confident rely upon their evidence. Further, the claims about the risk of harm to their children, or indeed [the first named applicant] and [the second named applicant], if they returned to Bangladesh after a long period of time in Australia was vague, speculative and superficial. When considered as a whole, the Tribunal found the applicants to be most unpersuasive witnesses.

   Refugee

7. The Tribunal has considered whether there is a real chance of serious harm to the applicants in Bangladesh for one or more of the reasons in s.5J(1)(a) of the Act. As noted above, the Tribunal is not satisfied that [the first named applicant] has previously been harmed in Bangladesh as he claimed, and therefore there is no real chance of persecution directed at him or his family because the Tribunal is not satisfied that past harm has occurred. The Tribunal is also not satisfied that there is a real chance of serious harm to any of the applicants because they will be perceived as wealth Bangladeshi having spent time abroad, nor is the Tribunal satisfied that there is a real chance of serious harm to any of the applicants because they have been in Australia for such a long time or assimilated into Australian society.

   Complementary Protection

8. The Tribunal has considered the alterative criteria as to whether they are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Bangladesh, there is a real risk that the applicants will suffer significant harm now or in the foreseeable future. For the same reasons as given above, the Tribunal is not satisfied that [the first named applicant] has previously been harmed in Bangladesh as he claimed, and therefore there is no real risk of significant harm to directed at him or his family because the Tribunal is not satisfied that the past harm has occurred. The Tribuba is also not satisfied that there is a real risk of significant harm to any of the applicants because they will be perceived as wealth Bangladeshi having spent time abroad, nor is the Tribunal satisfied that there is a real risk of significant harm to any of the applicants because they have been in Australia for such a long time or assimilated into Australia society.

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

   DECISION

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

    Nathan Goetz
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)    the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)    the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …