1618712 (Refugee)

[2019] AATA 602

1618712 (Refugee) [2019] AATA 602 (20 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1618712

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Paul Millar

DATE:20 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 20 March 2019 at 5:24pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – BNP member – harassment by Awami League members – whether applicant holds well-founded fear of persecution – credibility issues – inconsistent evidence – delay in applying for protection and departure from home country – decision  under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 499
Migration Regulations 1994 (Cth) Schedule 2

CASES
SZBYR v MIAC (2007) 235 ALR 609

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 October 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of Bangladesh, applied for the visa on 22 April 2016.[1] The applicant appeared before the Tribunal on 21 September 2018 to give evidence and present arguments in relation to the issues arising in the review.  The Tribunal hearing was conducted with the assistance of a Bengali speaking interpreter.

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

   RELEVANT LAW

2. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

3. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

4. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

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

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

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

   FINDINGS

8. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to his evidence to the Department and the Tribunal, the applicant claims protection on the ground that he supports the Bangladesh Nationalist Party (‘BNP’).[2]  The Tribunal holds the following concerns about the applicant’s credibility.

   Credibility Concerns

   Delay in departing from Bangladesh and applying for protection

   [2] The applicant's evidence to the Department and the Tribunal comprises the contents of his protection visa application forms; his written statements dated 22 April 2016 and 14 September 2018; the applicant's evidence at his interview with the delegate for which there is an audio recording on the Department file and to which the Tribunal has listened and the applicant's evidence at the Tribunal hearing.  The Tribunal had access to the Department file relating to the application made by the applicant for a [temporary] visa.  The contents of this file are not relevant to the issues on which this review has been determined.

9. To the Tribunal, the applicant said that he comes from a village in a district of Comilla.  His family consisted of his parents and [siblings].  The applicant’s father was involved with the BNP in the local area and at the district level.  In early 2009, because of his involvement, he was attacked on one occasion by the Awami League.  After that, for a period in 2010, he occasionally received verbal threats.  The applicant attended school in his native area and, after that, attended university in another part of Bangladesh. 

10. At both school and university the applicant undertook activities for the student wing of the BNP. On occasions, at university, when participating in demonstrations, the applicant got involved in physical clashes with people from the Awami League and from time to time received threats from them.  Because of his political activities, his teachers at the university who were involved with the Awami League, caused delay for him sitting his final exams. The effect of this was that he could not straightaway go on to undertake a master’s degree.  The applicant did eventually complete that degree, but, at a different institution.

11. To the Tribunal, the applicant gave the following account of his life in Bangladesh after completing university studies.  In this respect, in early 2010, after completing university studies, the applicant commenced employment in Dhaka which was some distance away from his native area and in another part of Bangladesh.  He remained employed and living in Dhaka until leaving Bangladesh to come to Australia in April 2015.  When asked what political activities he undertook in this period from 2010, when he commenced working and living in Dhaka, the applicant said that once or twice each month he would [details deleted]. 

12. He added that the BNP could not openly undertake political activities because the Awami League was in power and BNP people disappeared. The Tribunal put to the applicant that he was politically active as a student.  The Tribunal asked the applicant why he was not politically active in this period from 2010.  In response, the applicant said that he had to look after his family. His father was not well and [details deleted] the applicant was afraid that if something happened to him the family would be unable to support itself.  The applicant then said that in this period he had regular contact with BNP people in his native village.

13. He said that from time to time, not often, he would go to party programs in his native village. In 2013 he was made [a] member of the BNP in that area.  As the elections of 2014 approached, the applicant tried to organise people in his native area to support the BNP.  He did this whenever he had the chance to return to his native area and in doing so attended party meetings. However, at the same time, he was also helping his family because his father was not well.  Once he was made [a] member, he would return to his native area two or three times per month. 

14. Aftr the elections were held in January 2014, the Awami League became more active in harassing BNP members and supporters.  The applicant did not stay in his local area and returned to Dhaka.  It was at this point in time, because of the repression of the BNP by the government, that the applicant began thinking that he should just leave Bangladesh.  At the same time, the applicant said that he had contact with BNP student wing leaders over the telephone. He would also secretly attend party meetings at the local level. In this respect, he returned to his native village once per month following the elections in January 2014.

15. The Tribunal asked the applicant whether, after 2010 and until leaving Bangladesh in April 2015, he had any specific difficulties with the Awami League.  In response, the applicant said that [in] February 2014 he travelled to his native area by bus from Dhaka.  The applicant said that he got off the bus in his native area.  There he was approached by [specific] members of the Awami League who began to beat him.  The applicant was taken from the scene to hospital for medical treatment. He remained there for [a number of] days and then went back to his work in Dhaka.

16. The applicant did subsequently return to his native area but only for a ‘little amount of time’ [details deleted] because his father was not well.  The applicant said that after this attack in February 2014 he decided to leave Bangladesh. He said that in late 2014 or early 2015 a friend of his, who had been active for the BNP in the native area, had been abducted and then disappeared.  This event only confirmed in the mind of the applicant that he had to leave Bangladesh for his safety. 

17. The Tribunal asked the applicant what he was afraid would happen to him at the time he left Bangladesh to come to Australia.  In response, the applicant said that he feared for his safety given the abduction and disappearance of this friend who had been involved with the BNP.  The Tribunal asked the applicant whether, after his arrival in Australia, he remained in contact with family in Bangladesh.  In response, the applicant said that he had been in regular contact with his family since he arrived in Australia.

18. The Tribunal asked the applicant whether, in this contact, his family said that they had been having difficulties with the Awami League.  In response, the applicant said that the Awami League had gone to his family asking about him. He said that they did this from time to time and he had some cousins who were involved in the Awami League.  It was these cousins who would come to his family from time to time asking where he was. The applicant added that these people from the Awami League were doing this both before and after he left Bangladesh and he believed this was how he came to be attacked in February 2014.

19. The Tribunal then asked the applicant whether, while he had been in Australia, he had any other political friends who had disappeared or been killed. In response, the applicant said that over the last few years the situation had got worse for BNP people.  He said that he knew of some university friends who had disappeared [details deleted].  When he found out about that he again feared for his own safety.  Further in his evidence, when asked what he was afraid would happen to him in Bangladesh, the applicant said that since the Awami League had been in government, anyone who spoke out for the BNP was targeted.  He said that this applied to him and he would be killed straight away because he was known as a party member in his native area.

20. The Tribunal put to the applicant that it was concerned that he was granted a visa to travel to Australia in June 2014[3] but did not leave Bangladesh until April 2015.  The Tribunal’s concern was due to the fact that the applicant said that he applied for the visa to come to Australia because he thought that it was not safe for him to stay in Bangladesh following the attack in February 2014.  Also relevant to this concern was his evidence about how he thought BNP supporters and members were being treated by the government.  The Tribunal was concerned that, in those circumstances, the applicant would remain in Bangladesh for almost one year after being granted his visa which gave him the opportunity to flee the country for his safety.

    [3] See folio 2 of the Department file.

21. In response to this concern, the applicant said that he could not leave Bangladesh any earlier because his father was very sick and there was no one to look after him.[4]  The Tribunal asked the applicant why, in that case, he left Bangladesh at all. The applicant said that his life was at risk but at the same time his father was very sick.  When asked what he actually did for his father in this period from June 2014 after being granted the visa, the applicant said that he took his father to the hospital to see the doctor and would also stay with his father.  When asked why it was necessary for him to perform this role as opposed to his mother or siblings, the applicant said that his [siblings] had their own families and his mother was not well herself. When asked who performed these duties after he left Bangladesh, the applicant said that sometimes cousins would come and help but not always. 

    [4] The applicant gave the delegate a broadly similar explanation when this same concern was put to him at the interview.

22. The Tribunal also put to the applicant its concern that he applied for protection approximately one year after he arrived in Australia.  In response, the applicant said that he thought that the situation could get better and he did not intend to stay in Australia because his father was not well.[5] He said that he had in fact booked flight reservations to return to Bangladesh and had submitted a record of this to the Tribunal.[6]  The Tribunal asked the applicant why, if he thought that he would be killed on return to Bangladesh, he would actually purchase an air ticket to return there.  In response, the applicant said that his visa was about to expire and he thought that the situation would get better. However, that did not happen so he stayed in Australia and applied for protection.

    [5] The applicant gave the delegate a broadly similar explanation when this same concern was put to him at the interview and also in his written statement of 22 April 2016.

    [6] See folio 42 of the Tribunal file which comprises a travel itinerary dated [date] January 2016 indicating applicant had reservations made to fly from Australia to Bangladesh [in] April 2016.

23. When asked why he thought the situation would improve, the applicant did not directly respond. He said that he discussed the situation with his family and they told him that people were still looking for him and he should stay in Australia. The Tribunal put to the applicant that, according to his evidence, since his arrival in Australia, his parents had been telling him people from the Awami League had been looking for him. The Tribunal asked the applicant why, in those circumstances, he would think that the situation in Bangladesh would improve.  Again, the applicant did not directly respond. He referred to the period he was in Bangladesh after being granted his visa, saying that he would go and visit his father from time to time in the native village but not do this openly.

24. The Tribunal again asked the applicant why he would think that he could return to Bangladesh when, since he arrived in Australia, his parents had been telling him that the Awami League were looking for him.  In response, the applicant said that in that time his father had been sick and he just thought that the situation would get better.   

25. The Tribunal, as discussed above, is concerned that from as early as February 2014, the applicant decided that he had to leave Bangladesh for his own safety yet remained in the country over one year until finally departing in April 2015.   The applicant applied for and was granted a visa in June 2014 to enable him to leave Bangladesh.  Even with that opportunity, the applicant still chose to remain in Bangladesh for almost another year.  In this period, two friends involved with the party had been abducted and killed.  He said that people were going to his family home looking for him.  He referred to the general climate of repression in Bangladesh at that time again making him fear for his safety.

26. The applicant’s explanation for not leaving Bangladesh earlier was, essentially, that his father was very sick and he had to remain in Bangladesh to assist him.  The Tribunal rejects that explanation and does not believe that, if the applicant truly feared for his safety and, as he claimed, was of adverse interest to the Awami League, he would remain in Bangladesh because of his father.  The applicant offered to produce medical records indicating that his father was ill in the relevant period.  The Tribunal did not require him to produce those records as it was willing to accept that claim.

27. What the Tribunal does not accept is that the need to care for his father kept him from leaving a situation of danger.  The applicant did not actually live in the native village in the relevant period.  He told the Tribunal that he was living and working in Dhaka.  His father therefore must have had other caregivers (when the applicant was not present) and he said relatives cared for his father after he left Bangladesh.  Overall, the Tribunal does not believe that the applicant delayed his departure from Bangladesh because of his father.  The Tribunal therefore finds that the applicant has withheld the truth as to the reasons he was in Bangladesh for this period of time.

28. As discussed above, the Tribunal was also concerned that, even after arriving in Australia, the applicant did not straightaway apply for protection.  The Tribunal does not accept the applicant’s claim that he put off applying for protection because he thought he could go back to Bangladesh.  The Tribunal acknowledges the flight itinerary he submitted to the Tribunal and notes also that he held a visa to travel to [Country 1] in early 2016, a journey he said related to an attempt to meet up with his mother.  The applicant may well have made these arrangements but the Tribunal does not believe that if he truly left Bangladesh in fear for his safety, he would contemplate returning there within a year of his arrival in Australia.

29. The applicant made clear in his evidence that after arriving in Australia, he was told that people were going to the family home to look for him as they had done before he left Bangladesh.  In the claimed circumstances, the Tribunal cannot see any reason why the applicant would think his situation would change and it would be safe for him to return.  Just as the Tribunal does not accept that the applicant delayed his departure from Bangladesh to care for his father, the Tribunal also does not believe that the applicant’s delayed protection visa application was due to his concerns about his father.  Accordingly, the delay on the applicant’s part in applying for protection reflected poorly on his credibility and the genuineness of his fear of harm.

    Inconsistent evidence about harm suffered by associates

1. When interviewed by the delegate, the applicant was asked why he applied for protection one year after arriving in Australia.  Again, the applicant advanced his claim that he had originally planned to return to Bangladesh but then changed his mind.  The delegate then asked the applicant why he changed his mind and, in response, the applicant said that it was because many friends in his local area had been kidnapped and disappeared.  The delegate asked the applicant to name these people. In response, the applicant named one person who he said was in the BNP in the local area and who had disappeared 12 months before the interview. The interview with the delegate was held in October 2016 and the Tribunal understands from the applicant’s evidence that this friend disappeared, therefore, in approximately October 2015, after the applicant left Bangladesh.

2. The Tribunal put to the applicant that this evidence to the delegate appeared to be inconsistent with the evidence he gave to the Tribunal as to the disappearance of party colleagues. The Tribunal reminded the applicant that, to the Tribunal, he mentioned having at least two friends or colleagues who disappeared before he left Bangladesh. The Tribunal put to the applicant that this was inconsistent with his evidence at his interview with the delegate in which he named a colleague disappearing after the applicant left Bangladesh.

3. In response to this discrepancy, the applicant said that the evidence he gave the Tribunal was incorrect and that was because he was confused.  He said that friends disappeared after he came to Australia and that is when he was told about that as well. When asked why he told the Tribunal initially that these friends disappeared when he was in Bangladesh, this being a reason he wanted to leave the country, the applicant said that he was confused; these friends disappeared and were killed after he came to Australia.  The Tribunal does not accept that response because the applicant was clear in his initial evidence to the Tribunal about friends disappearing before he left Bangladesh and those events being further reason why he thought that he had to flee from the country.  If those events truly happened, the Tribunal does not accept that the applicant would be confused as to whether they happened before or after he left Bangladesh.[7]

   Omission of visits to the family by the Awami League from first written statement

   [7] This inconsistency is not ‘adverse information’ within the meaning of the Act.  See SZBYR v MIAC (2007) 235 ALR 609 at [18].

4. In his written statement of 22 April 2016, the applicant made no mention of the very important claims he made to the Tribunal that, before and after he left Bangladesh, people from the Awami League had been going to his family looking for him.  When asked why he omitted this important evidence from his statement, the applicant first referred to applying for protection in April 2016.  He then said that people from the Awami League came to his home after the elections and in recent times they came more often.  When again asked why this was not mentioned in his written statement of April 2016, the applicant said that he made a mistake.  If people from the Awami League did come to the applicant’s home as he claimed, the Tribunal does not believe that he would omit this from his written statement by mistake.

   Inconsistent evidence about the attack in February 2014

5. In his written statement of April 2016, the applicant does mention being attacked by people from the Awami League in February 2014.  What concerned the Tribunal was that in this statement the applicant said that these people ‘forced [him] to get off from [the] bus’ and then beat him ‘mercilessly’.  That account was inconsistent with the evidence the applicant gave the Tribunal (and the delegate) about this incident in which he said that he first alighted from the bus and, after doing so, was approached by people from the Awami League who began beating him.  When this discrepancy was put to him by the Tribunal, the applicant said that the account he gave the Tribunal was correct.  He said that he gave the incorrect account in his written statement because it was written in a hurry. 

6. The Tribunal can appreciate that the events in question occurred almost five years before the Tribunal hearing.  The Tribunal can allow for inconsistency on the part of the applicant in relating evidence about this incident simply due to the lapse of time.  However, the Tribunal can reasonably expect the applicant to consistently recall whether he was apprehended on a bus by his attackers, forced off the bus and beaten on the street, or, whether he simply alighted from the bus himself and, once on the street, was then approached and beaten.  If the applicant was attacked on this occasion as he claimed, the Tribunal does not believe he would mistakenly claim in his written statement that he was approached by his attackers on the bus on which he was travelling, forced off and then beaten. That is the case whether or not the applicant prepared the written statement in haste. 

   Conclusions on credibility

7. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth.  According to his evidence, the applicant’s fear of harm in Bangladesh and his decision to leave the country arose from the aftermath of the elections in early 2014 and, in particular, the occasion on which he claims he was attacked in February 2014.  As discussed above, the applicant has given inconsistent evidence about that incident.  He has given inconsistent evidence about people from the Awami League going to his home looking for him, another matter that caused him to fear for his safety.  He gave inconsistent evidence about the disappearance of friends also relevant to his fear of harm.

8. In addition to these matters, the applicant delayed his departure from Bangladesh as well as his application for protection by significant periods. The applicant has not given satisfactory explanations for those concerns. Indeed, the Tribunal’s concerns about his credibility were only heightened by his claim that he thought that he could return to Bangladesh and had even made flight reservations to do so.  That he would think and behave that way is inconceivable in circumstances where he said that, prior to that time, in contact with his family in Australia, they told him that people were still going to them to look for him.

9. Accordingly, based on a cumulative consideration of these concerns, the Tribunal finds that the applicant’s account of these events from early 2014 is false.  The Tribunal does not believe that the applicant was attacked in February 2014, that he feared for his safety from that time, that colleagues of his disappeared and that people were going to his family home to locate him.  The Tribunal does not believe that the applicant was politically active in early 2014 as he claimed (those activities leading to the attack in February 2014 by his account). This rejection of the credibility of this period of the applicant’s life, including after he came to Australia, is significant because it means that the Tribunal has no credible evidence as to why the applicant left Bangladesh in April 2015. 

10. Further, it means that the Tribunal has no credible evidence as to why the applicant does not want to go back to Bangladesh.  The Tribunal adds that, as it disbelieves these claims about events from early 2014, the Tribunal has no credible evidence that the applicant suffered harm in Bangladesh in that period. The Tribunal has no credible evidence that anyone in Bangladesh seeks to harm this applicant.  As for the credibility of the applicant’s evidence about his life prior to 2014, the tenor of the applicant’s evidence was that his political activities in this period were minimal and he did not suffer any specific instance of harm. 

11. Nevertheless, considering his account of being attacked in February 2014 was based on his previous involvement with the party before that, because he is not a witness of truth and because the Tribunal does not believe his account of events from February 2014, the Tribunal also finds that it has no credible evidence about the applicant’s political involvement in Bangladesh from 2010 and it has no credible evidence that he suffered harm at any time from 2010. 

12. The Tribunal is willing to accept that, prior to 2010, when he was at school and university, the applicant undertook political activities as narrated earlier in this decision.  The Tribunal will accept that he clashed with the Awami League at one stage during demonstrations, received occasional verbal threats and was delayed in sitting an exam.  The Tribunal also accepts the applicant’s evidence about his father’s political involvement, the single attack he sustained and occasional threats in 2010.  However, while the Tribunal accepts these claims, the Tribunal repeats its finding that it has no credible evidence of the applicant’s political involvement after that time and no credible evidence that he suffered harm after that time.

13. In reaching these findings on credibility, the Tribunal took into account that in July 2018 the applicant requested that a hearing not be held for a few months because his father had passed away in March 2018 (from [specified health condition]) and this had caused him distress.  In addition, he was upset that he could not travel back to Bangladesh for his father’s funeral, his mother had become ill, his sister had separated from her family and all of this caused him distress such that he could not concentrate in his employment. Consequently he lost his employment and that added to his problems.  The applicant submitted a brief report from a psychologist recording that the applicant made those same claims to him.[8]

    [8] See folio 23 of the Tribunal file.  The applicant also provided a death certificate for his father which appears at folio 37 of the Tribunal file.

14. The Tribunal accepts these claims made by the applicant only that it does not believe his decision to refrain from returning to Bangladesh for his father’s funeral was based on a fear for his safety. For the reasons given above, the Tribunal does not believe that the applicant is genuinely in fear of harm in Bangladesh.  The Tribunal is also satisfied that any stress the applicant is under does not explain or excuse the concerns it holds about his credibility. In addition, notwithstanding his claims about stress, the applicant was able to comprehend the questions put to him at the hearing and respond to them. He had a meaningful opportunity to participate in the hearing.

15. In reaching its findings on credibility, the Tribunal has also taken into consideration records submitted by the applicant purportedly issued by a hospital in Bangladesh, according to which he was admitted for treatment in February 2014, the records detailing his injuries and treatment received.  The contents of this document do not explain or excuse his failure to give a consistent account of this attack in February 2014.  The contents of this document do not overcome the applicant’s delayed departure from Bangladesh, his delay in applying for protection and the other areas of inconsistency in his evidence identified above.  Accordingly, the Tribunal does not give weight to these medical records.

16. The Tribunal also considered letters from members of the party in Bangladesh that the applicant submitted to the Department.[9]  According to these documents, the applicant was active for the party at school and university and in his local area.  According to one of these letters, the applicant was attacked at different times by the Awami League.  As discussed above, the Tribunal accepts that the applicant was politically active prior to 2010.  Assertions in these documents that the applicant was active after that time and suffered harm do not explain or overcome the concerns the Tribunal holds about the applicant’s credibility.  They do not explain the inconsistency in his evidence, his delayed departure from Bangladesh and the delay on his part in applying for protection.  Accordingly, the Tribunal does not give weight to these documents so far as they purport to corroborate claims made by the applicant that the Tribunal disbelieves.  The Tribunal remains of the view that there is no credible evidence about the applicant’s political involvement from 2010 nor that he suffered harm from that time.

    Assessment of whether the applicant holds a well-founded fear of persecution

    [9] See folios 75-77 of the Department file.

17. While the Tribunal accepts the applicant’s account of his and his father’s political activities and harm suffered prior to 2010, the Tribunal finds that those events are far too remote in time to demonstrate that there is a real chance that the applicant will suffer serious harm on return to Bangladesh.  To the Tribunal, the applicant said that approximately two or three times per month, he has attended BNP meetings in Australia.  He also added that he had participated in five or seven demonstrations held outside the place where the party meetings were held and a protest in front of the Bangladesh High Commission.  [Details deleted].  To the Department, the applicant submitted documentary evidence about these activities.[10]

    [10] See folios 76-83 of the Department file containing a membership application form; photographs the applicant said showed him at a meeting of the party in Australia and letters from party members stating he participates in activities in Australia.

18. As the Tribunal accepts that the applicant undertook political activities at school and college, the Tribunal is satisfied that the applicant’s willingness to undertake political activities in Australia is not for the sole purpose of strengthening his refugee claim.  The Tribunal must then determine whether the applicant’s activities in Australia place him at risk of harm in Bangladesh and also whether and to what extent the applicant will undertake activities on return to Bangladesh.

19. In terms of risk of harm for involvement in the BNP, DFAT states as follows:

    “The AL has also focused on restricting the activities of opposition political parties, particularly the BNP and JI (see following section). These restrictions have included arresting thousands of opposition political party members and supporters, often in conjunction with political demonstrations (see Arbitrary Arrest and Detention), preventing opposition parties from holding meetings and demonstrations, and pressuring opposition candidates to withdraw from local and municipal elections, including through preventing them from submitting election nominations. Opposition figures have also been prevented from leaving the country (see Exit and Entry Procedures), and many (including Khaleda Zia) have faced legal sanction, including sedition charges. In October 2017, authorities issued two further arrest warrants for Khaleda Zia, who was at the time travelling outside Bangladesh.

    DFAT assesses that under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges and travel bans. Active members of opposition political parties and auxiliary organisations (see following section) who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. This risk is elevated around times of heightened political tension, including elections. Ordinary members of opposition political parties and auxiliary organisations who do not engage in political activities and demonstrations face a low risk of arrest, although this may vary according to location and timing.”[11]

    [11] DFAT, Country Information Report Bangladesh (2 February 2018), at 3.54-3.55.

20. DFAT also refers to politically motivated violence which peaks during periods of heightened political unrest, including during elections, strikes and blockades.[12] DFAT states that this violence takes place between “supporters of different factions of the same party (intra-party violence), supporters of rival parties (inter-party violence), and between party supporters and law enforcement agencies”.[13] However, DFAT further states that “[i]n recent years, the frequency and level of intra-party violence has far outweighed that of inter-party violence, particularly between competing AL factions”.[14]

    [12] DFAT, Country Information Report Bangladesh (2 February 2018), at 3.59.

    [13] DFAT, Country Information Report Bangladesh (2 February 2018) at 3.59.

    [14] DFAT, Country Information Report Bangladesh (2 February 2018) at 3.61.

21. With respect to this information, as the Tribunal accepts that the applicant has undertaken activities in Australia and was politically active when he was a student, he may have some involvement with the BNP on return to Bangladesh.   However, his activities as a student were undertaken many years ago.  For the reasons given above, the Tribunal has no credible evidence about the applicant’s political involvement from 2010.  For the reasons given above, the Tribunal has no credible evidence as to why the applicant left Bangladesh and why he does not want to return there.  Accordingly, based on available country information, the Tribunal finds that whatever political involvement the applicant has on return to Bangladesh, he will not, and will not want to, undertake activities at a level of involvement from which the Tribunal could find that there is a real chance that he will suffer serious harm.

22. At the hearing, the Tribunal discussed this country information with the applicant and put to him the inference that the Tribunal draws from that information.  In response, the applicant said that he was known in his local area, so he would be killed straightaway even though he was a low level member.  He said that anybody who spoke out against the government would be targeted.  When a similar concern was put to him by the delegate, the applicant made broadly similar claims, adding that his father had been affiliated with the party, he had friends who had disappeared and he had been involved at different levels and was always a target.

23. While the Tribunal accepts that the applicant’s father had been involved with the party as well as the applicant when he was a student, for the reasons given above, the Tribunal has no credible evidence about the applicant’s political involvement from 2010 and no credible evidence that he suffered harm from that time. There is no credible evidence before the Tribunal that the Bangladesh government holds an adverse interest in this applicant and that anyone in Bangladesh seeks to harm him.  As stated above, the applicant has given inconsistent evidence about the disappearance of friends and the Tribunal disbelieves his claims about that.  Accordingly, the Tribunal finds that the inference it draws from country information is correct and whatever level of involvement the applicant has with the party on return to Bangladesh, it will not be (and he will not want it to be) at a level at which the Tribunal could find that there is a real chance that he will suffer serious harm.

24. With respect to the applicant’s activities in Australia, in his written statement of 14 September 2018, the applicant claimed to be a member of a particular social group of people who have publicly criticised the Bangladesh government.  Although, in its most recent assessment of Bangladesh, DFAT provides a comprehensive examination of human rights practices in that country, in terms of the risk of a returnee suffering serious harm because of political activities undertaken while out of that country, the only observation made by DFAT was:

    “DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia”.[15] 

    [15] DFAT, Country Information Report Bangladesh (2 February 2018), at 5.23. 

1. The Tribunal undertook searches of other sources of country information to find any further analysis of this issue and was unsuccessful. In this respect, the Tribunal had reference to the Department of Home Affairs, Country of Origin Information Services Section, Bangladesh:CI180618094129960 - Political opponents - overseas protests - treatment of returnees 25 June 2018.  In terms of the risk of harm to those involved in protests outside Bangladesh, this source contained no further relevant and more recent information beyond the DFAT assessment.  This source contained reference to the government monitoring the activities of Bangladeshi journalists travelling abroad but the applicant is not a journalist.

2. Given there is no credible evidence about the applicant’s political involvement before he came to Australia and no credible evidence that the Bangladesh government holds an adverse interest in him, based on this country information, the Tribunal infers that the risk of the applicant suffering serious harm on return to Bangladesh because of his political activities in Australia is remote.  At the hearing, the Tribunal put this country information to the applicant and the inference it draws from it.  In response, the applicant just said that he did not have a high position in the party in Australia and to gain such a position he would have to invest time over a long period.  This submission does not detract from or demonstrate that the inference drawn by the Tribunal is incorrect.  Accordingly, the Tribunal finds that the risk of the applicant suffering serious harm in Bangladesh because of his political activities in Australia is remote.  Accordingly, there is no need for the Tribunal to determine whether the claimed particular social group exists.

3. For the reasons given above, the Tribunal finds that there is not a real chance that the applicant will suffer serious harm on return to Bangladesh.  He therefore does not hold a well-founded fear of persecution within the meaning of s.5J(1) of the Act.  For the same reasons that the Tribunal finds that there is not a real chance that the applicant will suffer serious harm in Bangladesh, the Tribunal also finds that there is not a real risk that the applicant will suffer significant harm there.  He therefore does not meet the complementary protection criterion.

   CONCLUSIONS

4. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).  Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa). There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

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

   Paul Millar
   Member