1622518 (Refugee)

[2021] AATA 675

1622518 (Refugee) [2021] AATA 675 (24 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1622518

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Roslyn Smidt

DATE:24 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 24 February 2021 at 4:28 pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh National Party (BNP) – suspected involvement with Jamaat e Islami (JI) – credibility concerns – delay in seeking protection – inconsistent evidence – police clearance and a letter of support from Bangladesh Ministry of Home Affairs – 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 and Border Protection on 15 December 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who is a citizen of Bangladesh, applied for the visa on 25 July 2016. The delegate refused to grant the visa on the basis that the applicant failed to attend a scheduled interview and on the available evidence she was not satisfied that he was owed protection.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

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

6. 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.

7. 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

8. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.

   BACKGROUND

9. The applicant is a [age] year old man from Comilla in Bangladesh. He completed a [specified] degree in 2013 and worked as a [Occupation 1] prior to coming to Australia. His parents and [number of] sisters remain in Bangladesh. He has one brother who arrived in Australia in about 2009 on a student visa and later obtained a permanent skilled or employment visa.

10. The applicant obtained a Work and Holiday visa on 11 June 2015 and arrived in Australia [in] August 2015. He lived with his brother until August 2018 when he married. His wife held a student visa at that time but now holds a temporary work visa.

    CLAIMS AND EVIDENCE

    Submissions to the Department

11. In written submissions provided in July 2016 the applicant claimed that he was at risk of harm in Bangladesh because he had been active in the Bangladesh National Party (BNP) he attended university. He led many rallies protesting the Awami League government activities and he was well-known because of this. He was injured and hospitalised after leading a rally in January 2015 and went into hiding in his native village for a few months. He later returned secretly to his home where he was informed that he was on top of a list of Awami League targets, so he looked for a way to leave the country. Shortly before he lodged his protection visa application in 2016 his family told him that two members of his BNP group had been attacked. One died the other was seriously injured. He feared that he would be killed, kidnapped or disappeared by members of the Awami League if he returned to Bangladesh.

12. The applicant was invited to attend an interview with the delegate on 12 December 2016 but failed to attend. He claims that this occurred because the address he had provided was for a post office box belonging to the non-resident owner the house he shared with his brother at the time. The owner was only cleared once or twice a month and he did not receive the invitation until after scheduled date for the interview.

    Submissions to the Tribunal

13. On 19 February 2021 the applicant provided a written submission in which he said that he omitted significant claims from the statement provided to the Department in 2016 because he had been targeted by the CID and his mother had asked him not to mention this because it would cause problems for his family. He also feared his application would be refused if he mentioned that he had been arrested by the CID.

14. The applicant claimed that because of his involvement with the BNP, the CID had accused him of belonging to Jamaat e Islami (JI). At the time JI was involved in street violence and attacks on the police and civilians. It was also trying to recruit members of the BNP. He was arrested many times and questioned about his religious training and involvement with JI. When he denied any such involvement, he was abused and tortured. He was released from detention after his mother paid a huge bribe, but the CID continued to visit his home. He decided to leave the country because he feared that he would be arrested or killed. Before he fled, some of his friends were arrested and handed over to the CID. The Awami League government planned to file cases against them for involvement with JI violent activities. After he left for Australia two of members of his BNP group were attacked, one died the other was seriously injured. In about December 2019 his mother informed him that CID officers had come to his home and arrested his brothers in law and some local youths who were BNP supporters. They were tortured and questioned about their involvement in violence in Dhaka. They were also asked where the applicant was hiding and if he was planning to attack the CID or AI members. His mother arranged for their release after which they fled to foreign countries.

15. The applicant attended a hearing on 24 February 2021. He repeated the substance of the claims regarding his political activities in his February 2021 submission. He said that he had been involved with the BNP since he attended university, but he had become fully involved in 2013. He attended BNP rallies was well-known because of his political activities. He was suspected of involvement with JI because the BNP and JI were in alliance and he was religious. He was arrested six or seven times in Bangladesh, but he was never charged with an offence. The first arrest was in January 2013 and last in 2014.  On the first three occasions he was released with the assistance of a lawyer provided by the BNP. On the last occasion his mother paid a large bribe to secure his release.

16. I observed that despite claiming that he was at risk of serious harm if he returned to Bangladesh the applicant had failed to apply for protection until about a year after he arrived in Australia and asked why he had delayed. He said that he had been aware of the possibility of seeking protection in Australia when he arrived and had always intended to do so, but his visa allowed him to remain in the country for a year so he decided to wait until it was about to expire before applying.

17. I noted that the applicant was well-educated, that he appeared to speak English reasonably and that his brother had resided in Australia since 2009 during which time he had sought and obtained residency, which suggested some familiarity with migration processes. I observed that this suggested he could have obtained information about processing of protection applications, including the likelihood that information provided in such an application would become public with relative ease.  I advised him I therefore had difficulty accepting his explanation for his failure to provide a reasonably complete and accurate account of his problems in Bangladesh to the Department and that caused me to doubt the veracity of his most recent submissions. He maintained that he had been fearful of mentioning his problems with the CID. He said that he had not even mentioned the CID to his lawyer.  I observed that even if I accept this explanation, it did not explain why he had failed to mention that his fears related primarily to the fact that he had been accused or suspected or involvement with JI. He said that he had been fearful of mentioning anything to do with the CID.

18. I advised the applicant that I was aware that some members of both the BNP and JI faced the possibility of harm at the hands of the authorities in Bangladesh. However, I had difficulty accepting that an active well-known member of the BNP would be suspected of involvement with JI by the Awami League government. The applicant maintained that his claims were true.

19. I advised the applicant that it was my understanding that Bangladeshi applicants for a Work and Holiday visa in 2015 were required to provide a police clearance and a letter of support from Bangladesh Ministry of Home Affairs. I advised him that I had a copy of his Work and Holiday visa application which indicated that he had provided these documents. I observed that his ability to obtain a police clearance and a letter of support from Bangladesh Ministry of Home Affairs suggested that he was not of adverse interest to the government of Bangladesh at the time of his departure.

20. The applicant said that his family had paid the police at his village for a police clearance. He said that while he did not live in the village, it was listed as his permanent address. He said that the letter from Ministry of Home Affairs had also been sent to his permanent address in the village. I observed that this did not explain how he was able to obtain it.  He said had filled in a form and he did not have to provide any identity documents. I advised him that I had difficulty accepting that the Ministry of Home Affairs would have provided a letter supporting his visa application without establishing his identity. He said that the had provided a copy of his passport and money to the police station at his village.

    FINDINGS OF FACT

21. I did not find the applicant to be a truthful or a credible witness.

22. In the first place, in my view his failure to seek protection until about a year after he arrived in Australia, despite being aware that he could do so, suggests that he was not fearful of harm when he arrived in Australia.

23. Second and more significantly, there are significant differences between the claims which he provided to the Tribunal in February 2021 and the claims made in his statement to the Department July 2016 and I find his explanation for this far-fetched and implausible.

24. The applicant is well-educated, speaks English and until 2018 lived with a brother who had spent over five years in Australia in 2016. He also appears to have consulted a lawyer at some time. He clearly had the capacity to access information about the processing of protection visa applications and the likelihood of his claims becoming known the Bangladeshi authorities or refused because he had experienced problems with the CID in Bangladesh. I do not accept that he failed to provide a full account of his fears to the Department because he believed that his family would be face problems or his application might be refused if he mentioned that he had problems with the CID. Furthermore, even if I accepted this claim (which I do not), it does not explain his failure to mention that he had been arrested and abused six or seven times because he was suspected of belonging to JI.

25. I do not accept that the applicant failed to give a full account of his claims in his statement to the Department because he was fearful of mentioning the CID. I believe that he changed his claims in an attempt to enhance his claims for protection in Australia. I find his willingness to do so is a strong indication that he is not a credible witness.

26. Thirdly, the applicant came to Australia on a Work and Holiday visa. A small number of these visas are granted to young well-educated Bangladeshis to allow them to live and work in Australia for up to year. In order to obtain this visa applicants must provide a number of documents, including a police clearance and a letter of support from the Bangladesh Ministry of Home Affairs. At the hearing the applicant confirmed he had provided these documents in support of his application. He claimed that he obtained a police clearance by paying the police his local village. Corruption and documents fraud are widespread in Bangladesh and it may be possible to obtain a police clearance in this way. However, the applicant’ explanation of the manner in which he obtained a letter from the Ministry of Home Affairs was confused and unpersuasive. He first claimed that he had simply filled in a form and had not needed to provide any identity documents. When I advised him that I doubted that he would have been given a letter of support without identifying himself, he said that he had given the local police a copy of his passport and paid them some money. How this resulted in him obtaining a letter from the Department of Home Affairs was not established.

27. I do not accept that the applicant obtained letter from the Ministry of Home Affairs by completing a form or by providing his local police with payment and a copy of his passport. I believe he obtained by a letter of support from that Ministry lodging a formal request which included evidence of his identity and his background. I find his ability to obtain a such a letter a strong indication that he was not of interest to the CID or Awami League or the Bangladeshi authorities at the time of his departure from Bangladesh in 2015 because of his political activities.

28. After considering all of the relevant evidence I am not satisfied that the applicant was a member of the BNP or that he was suspected of involvement in JI or that he was involved in anti-Awami League or anti-government activities at any time prior to his departure from Bangladesh. It follows that I do not accept that he was arrested or tortured or went into hiding at any time because of his real or suspected political activities or that any of his associates or relatives were detained or faced problems of any kind as a result of their association with him. I find that his claims were all concocted for the purpose of supporting his claim for protection in Australia.

    CONSIDERATION OF THE APPLICANT’S CLAIMS

29. There is no credible evidence before me which suggests that the applicant faces a real chance of suffering serious harm or significant harm if he returns to Bangladesh now or in the reasonably foreseeable future. I am therefore not satisfied that he has a well-founded fear of persecution for any of the reasons in s.5J(1) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.

    CONCLUSIONS

30. 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).

31. 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).

32. 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

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

    Roslyn Smidt
    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.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    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 the 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.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (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.

    …