1703935 (Refugee)

[2021] AATA 575

1703935 (Refugee) [2021] AATA 575 (20 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703935

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Nathan Goetz

DATE:20 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 20 January 2021 at 11:33am

CATCHWORDS

REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh Nationalist Party (BNP) – attacked by Awami League supporters – convicted of criminal offence based on false charge – fear of arrest – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 438, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

MZAFZ v MIBP [2016] FCA 1081

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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. On 7 November 2016 the applicant applied for a visitor visa to travel to Australia. This visa was granted on 10 November 2016. [Later in] November 2016 the applicant arrived in Australia.

3. On 13 December 2016 the applicant applied for a protection visa. He participated in a delegate interview on 31 January 2017. On 17 February 2017 the delegate refused to grant the protection visa.

4. On 6 March 2017 the applicant applied to the Tribunal for a review of the refusal decision.

5. On 23 December 2020 the Tribunal wrote to the applicant and invited him to appear at a Tribunal hearing on 7 January 2021. The applicant responded and asked for a postponement of the hearing because he had work commitments. The Tribunal considered this response but refused to postpone the hearing. In the Tribunal’s view, it was reasonable to expect that the applicant would prioritise his Tribunal hearing over his work commitments.

6. The applicant had been invited to appear at the Tribunal hearing which was to be conducted in person. However, in light of the COVID-19 pandemic cluster that grew out of the Northern Beaches local government area, the Tribunal determined that the hearing should occur by audio-visual link. The applicant was notified of this change in the hearing method.

7. On 7 January 2021 the applicant appeared at a Tribunal hearing to give evidence and present arguments. The hearing occurred by audio-visual link and was conducted with the assistance of an interpreter in the English and Bengali languages. The applicant was represented in the review application by registered migration agent [number and name deleted]. The migration agent attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

8. 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 who holds a protection visa of the same class.

9. 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.

10. 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).

11. 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.

12. 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

13. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Department case note recorded on 11 November 2016 – Certificate under s.438(1)(a) of the Act

14. The Department recorded a case note on 11 November 2016 in connection with the applicant’s visitor visa application. The visa issued was in the ‘business visitor stream.’ The note recorded is an analysis of the applicant’s visitor visa application. The purpose of his visit was to attend [Event 1] and an invitation letter was provided. The applicant was employed as [an Occupation 1]. The assessment reads that the applicant had stated that he wished to travel to Australia to attend [Event 1] held in [City 1]. The applicant had provided enough financial evidence indicating that he had the necessary funds to support his trip. The applicant stated in the application that he is the [Occupation 1] for [Employer 1] in Dhaka and his employment was a good incentive to return. The applicant had a limited travel history. The Department assessed that the applicant was a genuine visitor.

15. This case note was certified as being prohibited from being disclosed to the applicant because it would be ‘contrary to the public interest because [the record] contain(ed) information relating to an internal working document and business affairs.’ The certificate is discussed later in the Tribunal’s findings and reasons.

    Protection visa application form dated 12 December 2016

16. The applicant identifies as a [age]-year-old male citizen of Bangladesh. He was born in Barura, Comilla, Bangladesh. He can speak, read and write English and Bengali. He has been married since [May] 1997. His wife and [children] live in Bangladesh. He has [number] brothers and [number] sisters. From birth until 1997 he lived in [Village 1], Comilla District, Bangladesh. He did not disclose where he lived after 1997.

17. He disclosed no employment ever but detailed his secondary and higher secondary certificates from Bangladesh. He left Bangladesh from Dhaka International Airport legally on a passport that was issued [in] 2015 and obtained legally. The applicant provided a copy of his Bangladesh passport. He declared that he entered Australia as a visitor and that he was not interviewed in connection with the issue of this visa.

18. He declared that he had criminal charges pending. This was described as a ‘false case’ in Bangladesh.

19. The protection visa application form asked a number of questions concerning the applicant’s reasons for claiming protection. The applicant responded that he was seeking protection in Australia so he did not have to return to Bangladesh. When asked why he left that country, he wrote ‘Bangladesh.’ When asked what he thought would happen to him if he returned to Bangladesh, he wrote ‘Bangladesh.’ When asked whether he had experienced harm in that country, he indicated ‘Yes’ and directed the reader to ‘Please see the statement.’ The applicant was asked whether he sought help within Bangladesh after the harm and he indicated ‘Yes’ and directed the reader to ‘Please see the statement.’ The applicant was asked whether he moved, or tried to move, to another part of the country to seek safety and indicated ‘No’ but did not provide his reasons as requested in the form. The applicant was asked whether he thought he would be harmed or mistreated if he returned to that country and he indicated ‘Yes’ and directed the reader to ‘Please see the statement.’ He was asked whether he thought he would be able to relocate within Bangladesh and he indicated ‘No’ and directed the reader to ‘Please see the statement.’

20. Included in the protection visa application form was a section related to ‘Documents.’ The applicant included a ‘statement’ and ‘written submission.’ The applicant declared that he had received assistance in the completion of the protection visa application form but did not indicate whether the statement and other information was read back to him. The declaration was witnessed by [a named person] who indicates that he is a New South Wales Justice of the Peace. This is the same person who is identified as migration agent who assisted the applicant complete the form.

    Written statement dated 13 December 2016 included in protection visa application form

21. The applicant wrote that he was a Bangladhi citizen who was born into a politically oriented family. He described his family as middle class. He is one of [number] children and his mother is a housewife. His father is a politician who belonged to the Bangladesh Nationalist Party (BNP) and was a [Position 1].

22. The applicant wrote that he attained his Secondary School Certificate examination in [year] and passed this exam. After he completed the certificate, he was admitted to [College 1] to complete a Higher Secondary Certificate. He noted that this college was politically orientated. During his time at the College, he participated in political activities such as processions, meetings under the banner of Jatiyatabadi Chatradal which he identified as the student wing of the BNP.

23. In [year] he appeared for his final Higher Secondary Certificate examination but was unsuccessful. He wrote that his lack of success was due to his involvement in student politics.

24. On 27 February 1991 he wrote that he campaigned for the BNP candidate in the national parliamentary election and that this candidate won. He was influenced to join Jatiyatabi Jubodal which he described as the youth wing of the BNP in 1992.

25. On 12 June 1996 the applicant seriously campaigned for the BNP candidate AKM Abu Taher in the national parliamentary election. Following the election, his family became the victim of a [serious criminal case] in August 1997. As a result, Awami League goons looted the family houses and took away their moveable properties.

26. In 1998 the applicant was locked in jail for 11 months with two of his brothers and his father. They faced irretrievable loss which continues to this day.

27. In 2000 the applicant became an executive member of [Committee 1] Jubodal.

28. [In] November 2000 the applicant was given a verdict which resulted in life imprisonment.

29. The applicant wrote that he campaigned for AKM Abu Taher who was the BNP candidate in the 1 October 2001 national election.

30. In 2002 the applicant became the [Position 2] of the Jatiyatabadi Jubodal of [Thana 1].

31. In the national election held on 29 December 2008 the applicant worked for the BNP candidate.

32. In 2011 and 2013 the applicant was attacked by Awami League cadres in his locality. In 2013 he led many demonstrations against the government to stop what he described as a ‘fake election.’

33. On several occasions between 2014 and 2015 he was attacked by Awami League cadres. Finally, he decided to leave Bangladesh.

    Written statement (undated) provided to the delegate

34. The applicant provided an updated written statement when he participated at the delegate interview.

35. The applicant described that he was born in a middle-class family of a political environment. His father was a politician who is actively attached to the Bangladesh Nationalist Party. His father performed the responsibility of [Position 1] and his family had a socially dignified status. His mother was a housewife. The applicant is the third child.

36. While the applicant was at [College 1] (H.S.C.) he was active in performing various showdown meeting processions and other political activities under Jatiotabadi Chatrodol. He identified this as the student wing of the Bangladesh Nationalist Party.

37. The applicant wrote that because of his involvement in student political activities he could not pass his Higher Secondary School (H.S.C.) examination in [year].

38. The applicant wrote that he publicised on behalf of the candidate for the Bangladesh Nationalist Party in the National Parliamentary Election that was held on 27 February 1991. He wrote that this candidate won the election, and that the Bangladesh Nationalist Party won government. He was influenced by the political support of the Bangladesh Nationalist Party.

39. In 1992 he joined the Bangladesh Jatiyatabadi Jubadol which he described as a sister organisation under the Bangladesh Nationalist Party.

40. In the 1996 election he participated in the publicity of the nominated Bangladesh Nationalist Party candidate Mr A. K. M. Abu Taher. The opposition candidate was from the Awami League and was named Mr Abdul Hakim. Mr Hakim won the election. This stunned the applicant and created problems. The applicant noted that the Awami League won this general election.

41. The applicant wrote that due to his attachment to the Bangladesh Nationalist Party, he had a good relationship with [Mr A] who he identified as an assistant [Position 2] of the Bangladesh Jatiyatabadi Jubadol of [City 2]. The applicant had married this person’s younger sister. The terrorist group of Awami Jubaleague of his area became more enraged with him. Family members began to have various oppression.

42. Leaders and activists supported by the Awami League became involved with corruption, malpractice and nepotism, while leaders and those supported by the Bangladesh Nationalist Party became adamant on taking revenge. In 1997 the applicant’s family became the victim of a [serious criminal case]. As a result, Awami League terrorists attacked the applicant’s house and looted various assets.

43. [In] October 1998 the applicant was imprisoned for about 11 months. His father and brother were also imprisoned. Since that time the family suffered irreparable loss.

44. After the applicant was released on bail [in] August 1999, he became an executive member of the Jubadol [Committee 1] [in] January 2000. [In] November 2000 a sentence of death was handed out to [number] people and life sentences were handed down to the remaining [number] people. The remaining [people] included the applicant and his family members. The applicant received punishment for 2 years and 7 months before he was released on bail [in] May 2003.

45. [In] May 2004 the applicant was elected joint [Position 2] of Jatiyotabadi Jubo Dol of [Thana 1]. On the national election held on 29 December 2008 the applicant worked on behalf of the nominated BNP candidate who was defeated by the Awami League nominated candidate.

46. [In] June 2010 the applicant stood for election for the position of Chairman of the Union Council in local government. He was defeated and came third in the election. That year saw the applicant’s wife’s [Relative B] arrested, tortured and imprisoned. He died [in] June 2013. His wife’s [Relative B] was [a prominent member] of the Central Jubo Dol.

47. The applicant declared that his business [named] was closed by the Awami League terrorist.

48. He noted that in 2011 and 2013 the Awami League terrorists attacked him in his area. He wrote that in between the years 2014 and 2015 he was attacked by Awami League terrorists’ various times.

49. On 5 July 2016 in 2016 he was attacked [at location]. He made a decision that he would need to leave the country to save his life and a broker helped him do that.

    Documents provided to the delegate

50. Court document

51. The applicant provided a single page document identified as a ‘Criminal Appeal Notice No.[number] of 2006 from the Appellant Division of the Supreme Court of Bangladesh.’ This was an appeal against the judgment and order of the High Court dated [in] 2004.

    Lawyer’s letter

52. The applicant provided a single page letter from [a named person] who was identified as an advocate of the Supreme Court of Bangladesh dated [in] January 2017. The letter certified that an appeal was pending against the applicant and a number of other people in the Supreme Court. The letter noted that the proceeding related to leave granting an order dated [in] November 2005 passed by the Supreme Court. This concerned the judgment and order of the High Court dated [in] 2004 allowing the appeal and setting aide the judgment and order dated [November] 2000 by an additional sessions judge in case [Number 1] of 1999.

    Jailor letters

53. The applicant provided a letter from [Mr C] dated 28 January 2017 who was identified as a jailor at [Jail 1]. The letter certified that the applicant was admitted to that facility [in] October 1998 on a custody warrant and was released on bail [in] August 1999.

54. The applicant provided a letter from [Mr C] dated 28 January 2017 who was identified as a jailor at [Jail 1]. The letter certified that the applicant was admitted to that facility [in] October 2000 by a custody warrant. The applicant had been sentenced to imprisonment for life and fined [in] November 2000. The letter noted that the applicant was released on bail [in] May 2003 through an order granted on appeal by the High Court.

    Membership letter

55. The applicant provided a letter from [a named person] dated [in] January 2017 who was identified as [an office bearer] of the BNP Australia Inc. The author wrote that he knew the applicant from 2016 and he has been with that organisation since he arrived in Australia.

    Photographs

56. The applicant provided eight photographs. Three photographs were of the applicant at BNP meetings in Australia, one photograph was of the applicant’s wife and children in Bangladesh, two photographs related to the 2010 election when the applicant was a candidate, one photograph was an advertisement for the applicant’s business and one photograph was of a scenery with no people in it.

    Oral evidence given by the applicant at the delegate interview on 31 January 2017

57. At the delegate interview, the applicant was asked several questions, including questions about his family background, departure from Bangladesh, living arrangements in Bangladesh, the BNP, the applicant’s involvement with the BNP, the court proceedings in Bangladesh, and the attacks on his person in Bangladesh. Where relevant to the Tribunal’s consideration of the evidence, the evidence given by the applicant to the delegate is discussed.

    Documents provided to the Tribunal when the applicant applied for review on 6 March 2017

    Undated written statement

1. The applicant provided the Tribunal with an 8 page (undated) written statement where he repeated his claims about his family being a politically orientated middle-class family. He described his father as a ‘retired politician’ of the BNP. He wrote that he was persecuted in Bangladesh. He repeated that he, his brother and father were jailed for 11 months in 1998 and noted that the had submitted documents to the department about this.

2. He repeated that he became an executive committee member of [Committee 1] of Jubodal, which was the youth wing of the BNP, in 2000.

3. He described himself as an activist of the BNP and that he had made donations to the party and took part in large meetings. In 2011 and 2013 he was attacked by Awami League cadres. In 2013 he participated in ‘many demonstrations’ against the Awami Government in the leadup to the election in 2014.

4. He wrote that since his arrival in Australia, his father had told him that police had come to the applicant’s house to ask for his whereabouts. He wrote that he fears he will be arrested, interrogated and mistreated by the police, and sentenced to life imprisonment or the death penalty if he returns to Bangladesh. He wrote that there was nowhere in Bangladesh that was safe for him.

5. He wrote that he had submitted documents in support of his case. He described these documents as court documents related to the court case in Bangladesh, a [police] report [connected] with the criminal case, including what he described as a ‘[specified] identification report,’ a copy of a complaint letter to the police, and a copy of a First Information Report concerning the outstanding criminal case.

6. The applicant wrote that his representative at the time did not attend during the protection visa delegate interview. The applicant suspected that this was because the representative had the political belief supportive of the Awami League. The applicant also wrote that the representative ‘did not serve properly as a BNP activist’ under the present Awami League Government in Bangladesh. The applicant wrote that the representative did not represent the applicant’s protection visa application properly and wrote that he would provide more detail about this later.

7. The applicant wrote that he ‘referred to the following information to support his review application.’ He wrote ‘Transparency International, Overview of corruption and anti-corruption in Bangladesh,’ Ireland: Refugee Documentation Centre, Bangladesh: Information on corruption Within government, police and the Judiciary,’ United States Department of State, 2013 Country Reports on Human Rights Practices Bangladesh,’ and ‘United Kingdom: Home office, country of Original Information Report – Bangladesh. There were documents attached, but they were not presented in any understandable fashion. For example, there was something that appeared to be photocopies of something that may have been from a binder book, starting with Annex A, and a photocopy of 7 pages of 70 hyperlinks to various websites.

8. The applicant wrote ‘in the decision record Page 12 paragraph 4 to 7 my migration agent did not act properly.’

9. The applicant wrote that he had to run for his life Bangladesh. He was ‘in mental distress, false [criminal] charge. Life Threat from Awami League supporter / worker, attacked to my family members – after all of these incidents at the same time made me mentally vulnerable.’

10. The applicant requested that the Tribunal consider that for the sake of his life he was forced to leave Bangladesh.

11. The applicant took issued with the delegate. He wrote that the ‘case offer comments on [the applicant’s support] to the Supporter of the Bangladesh Nationalist Party low profile that do not accept that only because of [my] low profile politics I did not persecuted, that I had been threatened or for this reason, or that my family had been threatened or mistreated for this reason, During the interview [the applicant] stated and [he] did provide documentary evidence to support his claim. The delegate did not consider [his] documentary evidence only because of DFAT reports. No other independent international report like Amnesty International reports. It is also based on country of origin information indicating that there is a significant prevalence of fabricated documents in Bangladesh.’

12. The applicant wrote that he was ‘a BNP activist and to be a political party activist of BNP in Bangladesh. In Bangladesh, any supporter of a political party can be attacked/victim of opposition party. Although [he] did hold any position in the BNP, [he] was a devoted member for the BNP and had an active role of the local BNP. And was a target of Awami League worker/supporter.’ The applicant again went on to ‘confirm’ that he was a BNP activist and that he has been threatened and mistreated for this reason and all of his family were also mistreated for this reason.

13. The applicant wrote that if he returned to Bangladesh to defend himself against the charges in a court of law, ‘In response that because he was one of the main accused in the case, and because [he] he was a member of the BNP, he would not be able to report to Bangladesh.’ He went on to detail that regardless of his ability to defend himself against the charges, he believed that he would not have any chance to do so because the ‘Awami League supporter/worker or their police will kill [him].’

14. The applicant then wrote that he was uncertain what would happen to him if he returned to Bangladesh. He wrote that there were many political incidents in local grassroots level which are either not reported to police or the media, nor does the state government provide any assistance. He feared that if he returned to Bangladesh he would be killed by Awami League activists as he described in his protection visa application. He asked the Tribunal to consider his situation and he be allowed to stay in Australia. The applicant wrote that he did have fear, as found in his circumstances, and that there is a real chance that he would find himself a victim of persecution if he returned to Bangladesh. He wrote that his life was in ‘grave danger.’ He strongly believed that ‘all mentioned’ will fall under the UN definition of a refuge.

15. The applicant then asked for the Tribunal to be kind enough to consider his circumstances and provide him safety as a human being. The applicant said the Tribunal should feel free to contact him if it had any query regarding the above information.

16. The applicant then wrote in reference to his protection visa application and in response of the decision by the department. The applicant wrote that he applied to review the decision because he believed that the decision maker overlooked and ignored a lot of important matters. The applicant wrote that his situation compelled him to escape Bangladesh as a safe course for his life as ‘the Bangladesh government and its terrorists had taken law and order in Bangladesh.’ The applicant wrote that the delegate cannot accept that he has a real chance of persecution upon his return to Bangladesh. The applicant wrote that the delegate brought the DFAT report into consideration to highlight human rights practices in Bangladesh. The applicant wrote that he had no hesitation to accept that if ‘as an independent report and on top of that I am furnishing the Tribunal with the Country Report on Human Rights practices 2014’ so that ‘the Tribunal will find it quite easy to assess the overall situation of Bangladesh in respect of politics, religion and the justice system.’

17. Further, the applicant wrote that the delegate again pointed out that the applicant did not have a real chance of persecution if he returned to Bangladesh and that his fear of persecution on return is not well founded. The applicant ‘submitted some documentary evidence to the AAT in favour of [his] case.’ The applicant submitted that ‘the delegate should not try to establish this baseless claim without any verification of [his] statement.’

18. The applicant wrote that Bangladesh was ‘not an accountable people’s democratic country yet. Therefore, even if anyone has anything to do with the authority, it is not so easy to check out instantly to stop the processing. However, [he] was not charged formally in Bangladesh, rather [he] had the blame only and therefore [he] did not have problem to obtain the passport and visa to leave the country through the airport.’ He went on to write that ‘in Bangladesh politics, adversity does not come only from the government authority, rather the worse happens from the opposition political terrorists and activists such as one may not be wanted by the authority, but the person may be seriously wanted by the party terrorists due to the party clashes in different ways.’ The applicant then repeated that he was ‘charged and persecuted and in the jail for 11 months and 31 months victim by the authority.’

19. The applicant wrote ‘However, the departmental delegate has taken reference of the DFAT Country Report and [the applicant] is quite happy urging [the Tribunal] to assess [his] stand as a refugee applicant with reference to the US report 2014 and recent independent country report for due to consideration and to assess any situation as an applicant of protection visa applicant in Australia.’ The applicant repeated that he submitted to the Department documentary evidence of his court case. He wrote that the ‘court case against [me] is beyond genuine doubt.’ He referred to the documents submitted to the Department and explained that there was a different number between the court proceedings. He wrote that Magistrates’ Court case number was [Number 1]/1999 which is the same case as the additional session judge court-1. The leave to appeal in the criminal petition was no.[number] of 2005 and the death reference was no.[number] of 2000. The Criminal Appeals No was [number] of 2000. And the jail appeal number was [number] of 2000.

20. The applicant concluded by writing that he was a political refugee and was persecuted because of his political opinion. He wished for sympathetic consideration and a favourable decision.

    Membership letter

21. The applicant provided an undated document which identifies its authors as the secretary and president of the [Thana 1] Branch of the Bangladesh Jatiyatabadi Jobudal. The letter certified that the applicant was involved in active politics of Chartradal BNP at [College 1] in 1989. The letter went on to claim that the applicant joined Jubodal of the BNP in 1992, that he was elected as a member of [Jubodal Committee 1] [in] January 2000 and [in] May 2004 he was elected as joint [Position 2] of [Thana 1] Jubodal Committee. The letter described him as still involved in the politics of the BNP.

22. Documents provided to the Tribunal the day before the Tribunal hearing on 6 January 2021

    Written statement dated 2 January 2021

23. The applicant resubmitted the same statement he provided to the delegate at interview. The Tribunal described this as an undated statement at paragraph 59. This statement was now signed.

    Photographs

24. The applicant provided six photographs of the applicant and other people holding signs that can be considered supportive of the BNP and critical of the Awami League Government in Bangladesh.

    Jailor’s letters

25. The same letters described at paragraphs 53 and 54 were again provided.

    Marriage certificate and attached form

26. The applicant provided a Marriage Certificate from the Bangladesh Government’s Office of Muslim Marriage Registrar which certified that the applicant married [name] [in] May 1997. The certificate was issued on 29 December 2020.

    Death certificate

27. The applicant provided a document from the Bangladesh Government which was identified as a Death Certificate for [Mr A]. It writes that his date of death was [a date in] June 2013 and the cause of death was kidney damage. The date of issue was 29 December 2020.

    Membership letter

28. The same letter described in paragraph 78 was again provided, but this time was dated as 16 December 2021 and given a reference number.

    Oral evidence given by the applicant at Tribunal hearing on 7 January 2021

29. At the Tribunal hearing, the applicant was asked a number of questions, including questions about his residential history in Bangladesh, his family, his employment history, his travel to Australia and what he did once he arrived in Australia, his involvement in politics in Bangladesh, his knowledge of protection visas, the criminal case against him, and his involvement with the BNP in Australia. Where relevant, the Tribunal has identified the applicant’s evidence where it has made findings.

    DFAT Country Information Report on Bangladesh dated 22 August 2019

30. Despite the applicant’s desire for the Tribunal to use what he described as the ‘US report 2014’ to assess his protection visa claims (to which the Tribunal notes that the applicant did not provide the Tribunal with any relevant extracts to support his claims in any helpful way), the Tribunal has had regard (as it is required) to the most recent DFAT Country Information Report on Bangladesh. This report provides a helpful context to understand the applicant’s claims. Relevant to the applicant’s claims is the following information:

31. Bangladesh has experienced significant political, social and economic turmoil since independence. A succession of assassinations and military coups d’état led to military rule for much of the 1970s and 1980s, before a series of popular mass democratic movements led to the establishment of parliamentary democracy in 1991. Elections between 1991 and 2006 saw power alternating between the Awami Leage (AL) and the rival Bangladesh Nationalist Party (BNP). Bangladesh briefly returned to military rule in 2007 following violent pre-election protests, but the military returned power to the AL after its election victory in 2008. The AL remains in power, having comprehensively won the last two national elections in 2014 and 2018. Both elections were marred by violence, boycotts and allegations of fraud (at 2.3).

32. The relationship between the two parties is characterised by longstanding political and dynastic rivalry, which has increased over time. Both parties derive their legitimacy from their claim to be the true heirs of Bangladeshi nationalism; the AL led the independence movement before and during the 1971 civil war, while the BNP holds as its institutional basis the ideology of Bangladesh nationalism. The rivalry between the two parties is also deeply personal at the highest levels: the AL’s leader Sheik Hasina, is the daughter of the ‘Father of the Nation’ Sheeik Mujibur Rahman and the BNP’s leader, Khaleda Zia is the widow of the party’s founder, former General and President Ziaur Rahman. Sheik Mujibur Rahman and Ziaur Rahman were both assassinated in office and their respective parties view them as martyrs (at 3.62).

33. Since independence, the two parties have, for the most part, alternated in the roles of ruling party and opposition. The ruling party’s affiliated organisations have historically controlled all public institutions while that party has been in power, and both the AL and BNP have used the state machinery against government opponents while in office (at 3.66).

34. Since it came to power in 2008, the AL has considerably restricted the activities of opposition political parties, including the BNP and JI. These restrictions have included using police and other security forces to arrest thousands of opposition political party members and supporters, often in conjunction with political demonstrations; using police and other security forces to prevent opposition parties from holding meetings and demonstrations; and pressuring opposition candidates to withdraw from local and municipal elections, including preventing them from submitting election nominations (at 3.67).

35. Authorities have also prevented opposition figures from leaving the country. Many, including former BNP Prime Minister Khaleda Zia, have faced legal sanction, including sedition charges. In October 2017, authorities issued two further arrest warrants for Khaleda Zia, who was travelling outside of Bangladesh and who has spent extended periods in custody (at 3.68).

36. 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 and auxiliary organisations who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activities. This risk is elevated around the times of heightened political tension, including elections. Those who are members of opposition political parties and auxiliary organisations but who do not engage in political activities and demonstrations face a lower risk of arrest, although this may vary according to location and timing (at 3.70).

37. DFAT assess that allegations of violence against BNP figures is credible, that high-profile figures are more likely to be targeted by charges that may be politically motivated. DFAT assesses than any BNP member who actively opposes the AL government may be targeted for criminal charges, especially if they are involved in violent protests (at 3.82).

38. The [Bangladesh] Department of Immigration and Passport conducts immigration checks and maintains a list of convicted criminals and persons wanted by security forces and intelligence agencies. The department mostly uses the list to determine whether to issue passports but may also use it to prevent people from leaving the country. Authorities can refuse to issue passports to people who have been convicted of war crimes, moral turpitude or smuggling; where they are suspected of leaving to avoid criminal proceedings; where they are ‘likely to engage in activities outside of Bangladesh prejudicial to the sovereignty, integrity or security of Bangladesh; or where doing so would be contrary to the public interest. DFAT is aware of cases in which authorities have prevented both senior members of the BNP leadership and ordinary BNP members from leaving the country (at 5.24).

39. Court and police documents may be fraudulently obtained, for example by bribing police for minor offences to be removed from a record. Corruption is widespread in the courts and the police and it is possible that genuine documents are fraudulently obtained as part of this process. Local medial often reports on cases where fake court documents are created for personal gain. The court system and police systems are heavily bureaucratic and often paper based, which can limit the ability to detect fake documents. Official documents, including identity, nationality, and court documents can often be very difficult to verify through formal channels. This is for a variety of reasons, including expectations by some official of facilitation payments, or a genuine lack of adequate records and capacity. DFAT assesses that fraudulent court documents, or court documents that are obtained fraudulently, are relatively common in Bangladesh (at 5.44).

    FINDINGS AND REASONS

40. The issue in this case is whether the applicant is a ‘refugee’ or a person who meets the criteria for ‘complementary protection.’ The Tribunal must also consider whether the applicant is a member of the same family unit of a person who has been granted a protection visa because that person is a refugee or meets complementary protection.

    Country of reference

41. The first thing for the Tribunal to do is to establish the applicant’s country of reference for the purpose of the protection visa assessment. The applicant provided a copy of his Bangladesh passport when he applied for the protection visa. The passport was issued [in] 2015 and was valid until [2020]. He claims Bangladesh citizenship. There is no information to suggest that the applicant is a citizen of any other country or that he has the right to enter and reside in any third county. Accordingly, the Tribunal is satisfied that the country of reference for the protection visa application assessment is Bangladesh.

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

   Inconsistent information about past employment in Bangladesh

100.   At first glance, inconsistencies about employment may not amount to much. If this was the only concern that the Tribunal had about the applicant’s credibility and it did not relate to the applicant’s claims, then the Tribunal would probably disregard the inconsistency. However, that is not the case with this applicant.

101.   The applicant did not disclose any employment at all in his protection visa application form. The Tribunal does concede that there is a reference to employment in his written statement, namely a family business that he claimed was closed because of the oppression of the Awami League. The applicant also included a photo of what appeared to be advertising of this business.

102.   However, as demonstrated by the case note concerning his visitor visa application, the applicant had previously declared that he had worked at [Employer 1] as a [Occupation 1]. It is noted that it was stated in the visitor visa application that he held this position. According to the records, this application was filed on 7 November 2016.

103.   At the Tribunal hearing, the applicant was asked about his employment with [Employer 1] in Dhaka. He told the Tribunal that he started this job in 2010, having moved to Dhaka in 2008. He worked at that organisation for 2 years. The Tribunal asked why the applicant declared that he had ongoing employment with that company in his visitor visa application. The applicant responded that he had contacted an agent who asked him what documentation he had concerning employment, and the agent prepared the visa application. The Tribunal found this rather curious and wanted to know more about this document. The Tribunal asked what document from [Employer 1] the applicant was talking about. The applicant told the Tribunal that it was a document from his work for them. The Tribunal asked when he obtained the document. The applicant said that he provided the document when he was working for [Employer 1]. He told the Tribunal that he gave the document to the agent in 2016, but that he obtained this document from his employer while he was working there. The applicant then noted that he had to leave this job because of the court cases and associated difficulty. The Tribunal then sought to clarify from the applicant that he obtained this document from his employer sometime between 2010 and 2012. The applicant then said that he organised the document from [Employer 1] when the agent applied for the visitor visa in 2016. The applicant told the Tribunal that the document said that the applicant worked at [Employer 1].

104.   The applicant told the Tribunal that he planned to come to [Event 1] in [City 1]. He went there initially. It was listed for one week. He went for the first two days and then went to [City 3]. The Tribunal asked the applicant why he was going to [Event 1] if he was no longer working for [Employer 1]. The applicant did not respond, other than to say he was not working, had cases against him, and he troubles from that point of time

105.   The Tribunal asked the applicant whether he did any other work after his employment with [Employer 1] ceased in 2012. He said he did not. The applicant was asked how he met his living expenses if he after that time. The applicant said he was chairman of a [Industry 1] company which was his main source of income. Given that he has just previously told the Tribunal that he was not employed after 2012, the Tribunal asked the applicant whether he worked for the [Industry 1] company or not. He said he used to go to Dhaka to look after business. He said he started in the family business in 2014 and expanded it, but that the business was located in the home village. He said that he was [an Occupation 1]. He said his younger brother was now looking after the ‘[Industry 1] side of the business’ and that the Awami League destroyed the other side of the business in 2016.

106.   When the Tribunal discussed relocation to Dhaka as a possible option with the applicant (noting that the applicant told the Tribunal that he had moved there in 2008), the applicant said he was hiding there. The Tribunal noted to the applicant his evidence that he was working for [Employer 1] between 2010 to 2012 in Dhaka and queried how he was hiding if he was working there. The applicant’s evidence was that although he was employed by the company, he was regularly unable to perform his duties and his employment ceased as a result.

107.   There are many confusing aspects about the applicant’s evidence concerning his employment history.

108.   First, the applicant produced a photograph that shows advertising for the applicant’s family business. The photograph is next to the applicant’s election post. The applicant told the Tribunal that the business was started in 2014. The applicant stood for election in 2010. The timeframes do not match.

109.   Second, the applicant did not detail in his written statement that he worked for [Employer 1] in Dhaka. It would be reasonable to expect this information to be included because, according to the applicant, he ceased this employment because he was in Dhaka hiding, and not able to ‘regularly perform his duties.’ To the Tribunal’s way of thinking, loss of employment because the applicant was hiding was a direct consequence of the applicant relocating and hiding in Dhaka, and it would have been included in any of the written statements if it were true.

110.   Third, the applicant’s written statements claim that the family business was closed in 2016 because of the Awami League terrorists, yet the applicant’s oral evidence was that ‘the [Industry 1]’ side of the business was continuing.

111.   The Tribunal notes that the applicant confirmed that he was employed by [Employer 1]. The Tribunal asked a direct question about [Employer 1], namely when he was employed by that organisation. The Tribunal notes that the information about the applicant’s employment with this organisation initially came from case notes completed by a Department officer in connection with the applicant’s own visitor visa application form. The certificate was issued because ‘internal working documents.’ This is insufficient for a claim of public interest immunity. Further, the certificate does not identify the harm that would flow from the release of that information: MZAFZ v MIBP [2016] FCA 1081. The material is disclosable to the applicant. The Tribunal is at a loss to understand how a Department officer’s assessment of the information that the applicant provided in support of the visa application could be considered information that would invoke public interest immunity.

112.   For the sake of completeness, the s.438(1)(a) certificate issued is invalid.

113.   In any event, the applicant told the Tribunal that he worked at [Employer 1], and that he did indeed travel to [City 1] for [Event 1]. He attended two days of the weeklong [Event 1], before he relocated to [City 3]. He told the Tribunal about the circumstances of his putting forward his employment at [Employer 1] in his visitor visa application form.

114.   Fourth, the applicant initially told the Tribunal that he was not employed after he finished his work at [Employer 1] in 2012. It was only after the Tribunal asked the applicant how he was able to meet his living expenses at that time that the applicant told the Tribunal about the family [Industry 1] business. The Tribunal explored with the applicant his duties with the family business, as the Tribunal was interested in whether he was just a beneficiary of a family business or was employed and involved in business. If he was just a beneficiary, that may have explained why he described himself as unemployed. However, the applicant’s oral evidence was that he was a [Occupation 1] for this business, and he also told the Tribunal that he travelled from Dhaka to his home village to ‘look after the business.’

115.   The Tribunal raised with the applicant the concern it had that the applicant did not declare his employment with [Employer 1] in the protection visa application form. This suggested to the Tribunal that the applicant was not employed at that organisation as he claimed. In the Tribunal’s assessment, this suggested that the applicant had a flexible approach to the truth. The applicant disputed this and told the Tribunal that he had told his agent about this, but he had not been asked further about it. The Tribunal then asked why his written statement did not mention that he ceased working for [Employer 1] because he was in hiding, and he responded that no body asked him that question.

116.   The Tribunal has considered the applicant’s responses to its concerns but is not persuaded by any of them. To the Tribunal’s way of thinking, if the applicant was employed by [Employer 1] in Dhaka as he claimed, and he lost his job there because he could not regularly attend to his duties (noting that the applicant told the Tribunal he was in hiding in Dhaka and could not undertake his employment duties regularly because he was in hiding in the family house in Dhaka since 2008), this would have been included in his protection visa application form. It is a considerable thing to be in hiding in Dhaka and lose your job because you cannot leave your home for fear of harm. The Tribunal is satisfied that the reason none of that information was included in the protection visa application form or written material is because the applicant was never employed by [Employer 1] and was not in hiding as he claimed resulting in him losing his job.

117.   Further, the Tribunal assesses the applicant as a person who knowingly put forward false information in order to secure his visitor visa. The Tribunal found the applicant’s oral evidence about the provision of the document from [Employer 1] contradictory and vague. First, he told the Tribunal that he received the document when he worked there, and later changed this to say that he obtained the document in 2016. All he could tell the Tribunal about this document was that it said he worked there. If the applicant was to be believed about this, it is curious that a document that the applicant received in 2016 would say that he worked there given his oral evidence was that he ceased working there in 2012. The Tribunal does not accept the applicant’s explanation that the change in oral evidence was due to him not understanding the Tribunal’s question when it was first asked. Rather, the Tribunal is satisfied that the change in oral evidence was made by the applicant because he was fabricating his oral evidence as he went on and was attempting to tailor his oral evidence to address any concerns raised by the Tribunal. The Tribunal is satisfied that had the Tribunal not predicated its question on the basis that the applicant worked at [Employer 1], he would have not told the Tribunal that he worked there and instead put forward that the information in the visitor visa application form had been provided completely from the agent who assisted him as a means to maintain that the applicant was not someone who was prepared to put forward false information to achieve a favourable migration outcome.

118.   To that end, if there was a document provided to say that the applicant worked at [Employer 1], the applicant’s evidence is that he provided that document to the agent. The applicant said that the document which was provided to him in 2016 declared that he was working there, which according to the applicant’s oral evidence, was not the case. To the Tribunal’s way of thinking, this demonstrates that the applicant put forward false information in order to obtain a visitor visa. While one may argue that a person who is being harmed in another country may be prepared to put false information forward in order to escape that country, it does mean that such a person is prepared to tell untruths in order to obtain a desired outcome. In the case of the applicant, the Tribunal is satisfied that the applicant has a flexible approach to the truth. However, the Tribunal is not satisfied that the applicant provided false information in order to escape the claimed harm. He provided it solely to achieve a positive migration outcome. Consequently, the Tribunal finds that the applicant was prepared to continue to adopt a flexible approach to the truth in order to achieve a positive migration outcome once he was in Australia.

119.   The Tribunal notes that the willingness of the applicant to provide misleading information is further demonstrated by what the applicant put into his incoming passenger card. This was discussed by the delegate at interview. The delegate noted that the applicant had written that the purpose of his visit to Australia was ‘business’ and that he planned to be in Australia for 7 days. When this was put to the applicant by the delegate as being inconsistent with applicant’s claims for protection, the applicant responded that his English was poor and that it was another passenger who put this information into the card. To the Tribunal at hearing, the applicant made no mention of the other passenger as being responsible for this information but said that he had to write that in order to enter Australia. He had no other option. The Tribunal put to the applicant that this suggested that the applicant was prepared to put forward misleading information to achieve a migration outcome and the applicant said that he had no option but to do so.

120.   The Tribunal adopted the s.424AA procedure and raised with the applicant that he provided inconsistent evidence about who was responsible for the clearly false information contained in the incoming passenger card. This demonstrated that the applicant had a flexible approach to the truth and concerned the Tribunal that he may be prepared to give whatever evidence he thought will assist him, regardless of whether it is true or not. In response, the applicant said that the passenger did provide this information, but it had come from the applicant. To the Tribunal’s way of thinking, this demonstrates a couple of things. First, it demonstrates that the applicant knew how absurd it was to suggest that a fellow passenger would randomly complete the applicant’s passenger card and provide details that had not come from the applicant (as he did to the delegate) and also demonstrated that the applicant was prepared to change his evidence to suit his purpose. The applicant’s response, did however, demonstrate that it was he himself who put down this false information. As the applicant said is his oral evidence to the Tribunal, the purpose of his travel to Australia was to come and claim protection.

Incomplete / inconsistent evidence about residential history and relocation in Bangladesh

121.   The protection visa application form discloses one address from August 1972 until August 1997. It is [Village 1] in the Comilla District. No information was provided about where the applicant lived from August 1997 until his departure from Bangladesh.

122.   Yet, to the Tribunal the applicant said that he lived in the family home at that village until 2008. It was in 2008 that the applicant commenced living at a house in [an address] in Dhaka. He described this a family property and he lived at that address from 2008 prior to coming to Australia. The Tribunal works that out to be a period of almost 8 years. The applicant said that there were tenants in that house which he managed.

123.   The applicant told the Tribunal that he bought that house in 2008. The applicant was asked why his wife and children did not go and live with him there. He said that his wife needed to remain in the village to look after his parents. The Tribunal explored, in the context of relocation to Dhaka why the applicant could not go and live in Dhaka, a place where he lived for 8 years, seemingly without incident. It was then that the applicant described ‘hiding at that address’ and, as discussed previously, cited losing his employment at [Employer 1] as a result of his hiding.

124.   Given that the applicant claimed to be ‘hiding’ at that address, it is reasonable to consider that the applicant had in fact relocated to avoid harm in his local area. Yet, in his protection visa application form, the applicant specifically denied ‘moving or trying to move to another part of the country to seek safety.’ None of his written statements refer to his relocation to Dhaka, and indeed he did not provide this address in his protection visa application form, despite living at that address for a period of 8 years.

125.   The Tribunal raised the fact that the applicant had never claimed to have moved to another part of Bangladesh and that his oral evidence to the Tribunal was inconsistent. This suggested to the Tribunal that the applicant was not a witness of truth. In response to this, the applicant told the Tribunal that he mentioned he was in hiding.  The Tribunal has considered this response but is not persuaded by it. If the applicant was in hiding as claimed, he would have detailed that in his written statement, provided where he lived in the protection visa application form from 1997 until his departure from Bangladesh (noting the applicant only lived in two places, namely his village until 2008 and in Dhaka according to his oral evidence) and would have answered ‘Yes’ to the form question about relocation. To the Tribunal’s way of thinking, the reason that none of this information was included in the protection visa application form, and not in the numerous written statements, is because the applicant adopts a flexible approach to the truth and is prepared to manufacture evidence to support his claimed fear of harm.

Concern about whether the applicant was involved with the Bangladesh Nationalist Party in Bangladesh as claimed

126.   As hopefully demonstrated by the inclusion of the applicant’s numerous written statements in this decision record, the applicant was able to provide a detailed narrative about election dates, election candidates, periods of government for both the BNP, the AL and caretaker government, and information about Khaleda Zia. That information may have come from the applicant’s own knowledge of events, and because of his genuine interest and participation in politics in Bangladesh. Alternatively, this information may have come from the applicant learning about these events in order to lend credibility to his protection claims. The Tribunal is satisfied that it is the later case for the following reasons.

127.   The Tribunal asked the applicant about the seat name / constituency in the national parliament for his home area. The applicant responded that he was with the BNP. The Tribunal asked again about the seat name. The applicant said it was Comilla-8. The applicant said that the BNP candidate for that seat in the 1996 general election was AKM Abu Taher and that he worked on the election campaign for that candidate. He noted that this person was the MP for the seat from 1991 to 1996. The applicant told the Tribunal that this person did not win the 1996 general election.

128.   The applicant’s oral evidence about this fact troubles the Tribunal significantly because AKM Abu Taher did not represent the Camilla-8 constituency in the Bangladesh national parliament. To the Tribunal’s way of thinking, it was incredulous that the applicant, who was able to detail so much information about events in his written statement, would not be able to correctly identify the parliamentary constituency name of a seat attached to a candidate he ‘seriously campaigned for’ in the 1996 national election.

129.   The Tribunal adopted the s.424AA procedure and raised with the applicant that AKM Abu Taher was not the member of parliament for Comilla-8 as he claimed.[1] This inconsistency, when coupled with the other concerns that the Tribunal had about the applicant’s credibility, suggested that he was not involved in political activity in Bangladesh as he claimed, and that the applicant had manufactured his protection claims. In response to the Tribunal’s concern, the applicant responded said that he thought it was Comilla-8 and disputed the Tribunal’s assessment. When asked how the applicant knew that the constituency was Comilla-8, he said that seats based around the police station have different numbers, such as Comilla-1, Comilla-2 and so on.

[1] According to the ‘Amar MP Social Voluntary Organization’ website, the BNP candidate for Comilla-8 in 1991 was Md. M Akbar Hossain Gazi and in 1996 the BNP candidate was Lt. Col. Akbar Hossain. The Tribunal notes that Lt. Col. Akbar Hossain won the constituency in the 1996 election.

130.   The Tribunal was not persuaded by the applicant’s explanation about why he thought that the BNP candidate he campaigned for in 1996 represented Comilla-8 and did not persuaded the Tribunal that there was a reasonable explanation as to why he provided this information. To the Tribunal’s way of thinking, when coupled with the other concerns that the Tribunal has, it concludes that the reason the applicant provided the incorrect constituency name was because he was not involved in campaigning for that seat, or involved with the BNP as he claimed.

131.   Second, the applicant’s undated written statement provided to the delegate detailed that he had participated in the election for the post of chairman on the union council in local government on [in] June 2010. When the Tribunal looked at the photograph that the applicant had provided, showing what appeared to be an election poster, the Tribunal found it odd that there was nothing to suggest that the applicant ran as a BNP candidate. The Tribunal asked the applicant whether he ran as an independent candidate or a BNP candidate. The applicant told the Tribunal that he tried for a BNP position, but did not get it, so he ran as an independent. He told the Tribunal that he stood against an endorsed BNP candidate. The Tribunal queried why the applicant, who appeared from his various statements to be a committed BNP member, would stand against that party and potentially take votes away from them. The applicant responded that he ‘did a lot of hard work for the BNP’ and ‘should have been nominated,’ but there was a ‘party person who was quite resourceful and influential’ and that person secured the nomination. The Tribunal asked why the applicant would do this, given his support of the BNP, and the applicant said that he had suffered a lot and had been jailed for his work for the BNP and this other person took credit and snatched his right for a seat.

132.   The Tribunal really struggles to understand why the applicant would stand as an independent candidate against the BNP in 2010, given that he claimed to be elected joint [Position 2] of Jatiyotabadi Jubo Dal for [Thana 1] in 2004, and had been an executive member of Jubadol [Committee 1] in January 2000. The Tribunal is not satisfied with the applicant’s explanation about why he stood as an independent candidate. It is also curious to the Tribunal’s way of thinking that there would not have been consequences for the applicant standing against an endorsed BNP candidate in 2010, such as expulsion or suspension from the party. The applicant details no such action. To the Tribunal’s way of thinking, it may be that the applicant was never involved with the BNP in Bangladesh as he claimed, and stood as an independent candidate in 2010, or he may not have stood in that election at all. Given that the applicant had told the Tribunal in his oral evidence that the family business was started in 2014, and declared no other employment (apart from [Employer 1] in his visitor visa application, and in his oral evidence to the Tribunal), yet there is advertising for this business next to his 2010 election poster, the Tribunal finds itself in such a state of confusion about events that it ultimately concludes that it cannot be satisfied that the applicant stood as a candidate in the 2010 election at all.

133.   While the Tribunal acknowledges that the applicant provided written letters which were identified as coming from the BNP in Bangladesh to confirm his involvement with the party, those letters could have been manufactured to lend credibility to the applicant’s claims. Given the above concerns that the Tribunal has and coupled with the other concerns the Tribunal has about the applicant’s credibility, it concludes that it cannot place any weight on those letters. The Tribunal does not accept they are genuine letters.

134.   When the Tribunal assesses all its concerns, it comes to the conclusion that the applicant was never involved with the BNP or its affiliated organisations in Bangladesh, never held any positions of leadership and never stood as a candidate for local government. Given this, the Tribunal is not satisfied that the applicant was ever harmed in Bangladesh as he claimed. In short, he manufactured this backstory to achieve a favourable migration outcome. The Tribunal cannot place any weight on any suggestion that the applicant’s family members were also involved in the BNP, as it does not accept that the applicant is a truthful witness.

Concerns about the applicant’s ability to obtain a passport and depart Bangladesh given claimed involvement in the criminal justice system in Bangladesh

135.   The Tribunal asked the applicant how he was able to depart Bangladesh on a passport issued in his own name if he had criminal cases against him. The applicant initially responded that he was given bail by the High Court. He said the Awami League continued to attack him while he was on bail and that the case was later moved to the Supreme Court.

136.   As the applicant was on bail, the Tribunal asked how he was able to depart Bangladesh if he had an outstanding criminal case against him. The applicant said that at that time, he had only the one case against him and he was acquitted of it. There was no action against him.

137.   The Tribunal asked whether the matter was moved to the Supreme Court after he came to Australia. The applicant repeated that he was on bail and he was acquitted in 2004, but that the case was moved to the Supreme Court in 2005. The Tribunal asked how he was able to depart Bangladesh if he had a pending case in the Supreme Court since 2005. The applicant said that at that stage, it had not been accepted by the Supreme Court and was ‘in the process of being accepted.’ He was therefore not a person with charges or under arrest, so that is why he managed to leave.

138.   The Tribunal put to the applicant that it did not understand how there was an appeal to the Supreme Court in 2005, but the proceeding had not been accepted. The applicant told the Tribunal that after he was acquitted by the High Court in 2004, the Awami League Government appealed to the Supreme Court in 2005, but the Supreme Court granted him bail and this was granted by a judicial magistrate. The applicant said that he was not present himself when bail was ordered. The Tribunal noted that the applicant had ‘nil character concerns’ in accordance with the visitor visa case note detailed earlier in this decision. The Tribunal told the applicant that it understood this to mean that he did not declare in his visitor visa application that he had previously been imprisoned. The applicant told the Tribunal that he did not declare this in his visitor visa application form because he would not have been granted the visa if he had done so. The Tribunal observed to the applicant that this may suggest that the applicant is prepared to not tell the truth. To the Tribunal’s way of thinking, the applicant may be equally prepared now to not tell the truth to achieve a migration outcome. In response the applicant said that he wanted to live in Australia to save his life, and that he had never been involved in any criminal activities in Australia, noting that he had received police clearances three times since living in Australia. The applicant was asked about the current status of his matter in the Supreme Court. The applicant said it was waiting to be heard.

139.   The Tribunal put to the applicant that it was unlikely the applicant would have been given a passport (his Bangladesh passport being issued in [2015]) and be able to depart Bangladesh (which he did [in] November 2016) if he had criminal cases against him and a profile as a BNP person. In response, the applicant said that the passport had been issued to him legally and questioned what else he could say, other than that the government had issued him with the passport. The Tribunal put to the applicant that the DFAT assessment was that document fraud in Bangladesh was common. In response, the applicant said that his documents were not false.

140.   The Tribunal has considered the applicant’s responses to its concerns. It is not persuaded by them. To the Tribunal’s way of thinking, it is a nonsense that the applicant could suggest that he did not have ongoing matters when he was granted bail in 2005 in connection with the appeal to the Supreme Court. The appeal was listed in 2005 and although no decision has apparently been made, the Tribunal does not accept that the applicant would be issued a passport in February 2015 and be allowed to depart the country in 2016 with the ongoing matter in the Supreme Court if his claims were true. The Tribunal does not accept the applicant’s submission that the matter had ‘not been accepted by the Supreme Court,’ which is how he was able to depart Bangladesh, when the documentation that the applicant provided clearly shows a filing in the Supreme Court from 2005.

141.   The Tribunal accepts that the applicant has provided letters from a jailor, a letter from a lawyer in Bangladesh, and documents identified as those of the Bangladesh judiciary. However, as noted in the information the Tribunal had, and as put to the applicant at the Tribunal hearing, document fraud is common in Bangladesh. When the Tribunal takes into account the other concerns that it has about the applicant’s credibility, it comes to the conclusion that it can place no weight on any of that documentation, and it is not satisfied that any of those documents are genuine. The Tribunal is satisfied that the applicant was able to be issued a Bangladesh passport and was able to leave Bangladesh because his claims about his criminal charge, past period in custody, acquittal, and appeal to the Supreme Court, are fabricated. If the applicant’s claims about the his involvement with the criminal justice system in Bangladesh were true, the Tribunal is satisfied that he would not have been granted a passport and been able to depart Bangladesh.

142.   Instead, the Tribunal is satisfied that the correct information is what the applicant told the Tribunal about the visitor visa character declaration, namely that he had never previously been imprisoned. Despite what the applicant says about his reason for this declaration, the Tribunal is not persuaded that the reason he declared he had not previously been imprisoned was not because he had been acquitted and the Supreme Court had not yet made a decision on the appeal, but because the applicant was never charged or involved with the criminal justice system in Bangladesh. Likewise, the Tribunal is not satisfied that the family members were also subject of criminal proceedings in Bangladesh.

Concerns about the applicant’s involvement with the Australian branch of the BNP in Australia

143.   The applicant told the Tribunal that after he arrived in Australia, he met BNP people in Sydney. He was provided with financial support and accommodation. The Tribunal asked the applicant when it was that he joined the Australian branch of the BNP. He said it was in 2016 but he was not sure of the date, but after he arrived in Australia, he met them many times. He was aware of the Australian branch and he contacted this branch once he was in Australia.

144.   The Tribunal asked the applicant whether he joined the Australian branch before he lodged his protection visa application. He said he did not. He met them in 2016 but joined in 2017 when he started going to various meeting occasions. The applicant told the Tribunal that he started attending the Australian branch because he was involved in politics in Bangladesh. The Tribunal asked the applicant whether he joined the Australian branch just so he could claim protection. The applicant disputed that this was the case and said that he had been involved with the party in Bangladesh. He liked the policies and was motivated by them. When he arrived in Australia, he continued to attach himself with the party. He did not hold any leadership positions in the Australian branch.

145.   The Tribunal accepts that the applicant provided a number of photographs of what appears to be the applicant attending events held by the Australian branch of the BNP. The Tribunal also accepts that the applicant provided a letter from a person who identifies as [an office bearer] of the Australian branch of the BNP identifying the applicant as an ‘active’ member of this group and that the applicant ‘participates [in] all programmes and activities.’ However, just because the applicant has joined the Australian branch of the BNP or participated in those meetings or events does not establish that the applicant did so because he had a genuine political opinion supportive of the BNP, or that the applicant joining the Australian branch was a continuation of his political involvement in Bangladesh. It may be that the applicant has joined the Australian branch of the BNP and undertaken various activities with that organisation merely to strengthen his protection claims. The Tribunal is satisfied that this is the case for the following reasons.

146.   First, there is no mention of the applicant attending any meetings of the Australian branch of the BNP when he lodged his protection visa application form in December 2016. The first time this was talked about was at the delegate interview in January 2017, when the applicant came furnished with the support letter. The Tribunal accepts that the applicant has not claimed in any place that he faces harm in Bangladesh because of his involvement with the BNP branch in Australia. Indeed, at the Tribunal hearing, the applicant was asked what he thought may happen to him if he returned to Bangladesh and he said he would be killed. The Tribunal asked why he would be killed, and he said that he left because he was tortured. He did not say that it was because of any of his activities in Australia that he faced risk of harm, but the Tribunal views that the applicant’s claimed profile as a ‘BNP person’ who is at risk of harm is probably broad enough to cover both his time in Bangladesh and time in Australia.

147.   But to that end, given the applicant told the Tribunal that he joined the Australian branch of the BNP because he was involved in the BNP in Bangladesh, it is curious that the applicant would not detail any attendance at the branch (even if he was not a member) in his protection visa application form if he was continuing his political involvement in the BNP in Bangladesh. To that end, the Tribunal is satisfied that the applicant lodged a protection visa application in December 2016 having never participated in any meetings or activities with the Australian branch of the BNP, and then commenced doing so (and becoming a member) after he lodged his protection visa application form. This is very odd indeed, given the applicant’s oral evidence that he knew of the Australian branch while he was in Bangladesh. The Tribunal’s view is that the applicant lodged a protection visa application form having never been involved or attended any meeting with the Australian branch of the BNP, and then decided to start attending meetings and become a member after that time.

148.   Given this, it falls to the Tribunal to determine what to make of the applicant’s involvement with the BNP in Australia. Given the Tribunal’s findings about the applicant’s involvement with the BNP in Bangladesh, and his claimed experiences in Bangladesh because of his political profile, it leads the Tribunal to a factual scenario where the applicant came to Australia having not experienced any harm in Bangladesh, and having not engaged in any political activity there, but has now joined the Australian branch of the BNP and participated in various meetings and occasions. Given the findings about the claimed past harm in Bangladesh, the Tribunal is satisfied that the applicant joined the Australian branch only for the reason of strengthening his protection claim. The Tribunal does not accept that the applicant is a genuine BNP supporter in Australia.

149.   The Tribunal has considered what would happen to the applicant if he returned to Bangladesh having been a member of the Australian branch of the BNP. The Tribunal is not satisfied that the applicant would participate in any political activity in Bangladesh upon his return there, because the applicant has not done so in the past. Further, as the applicant did not join the Australian branch of the BNP for any reason other than strengthening his protection claim, the Tribunal is not satisfied that the applicant would commence any sort of political activity upon his return to Bangladesh. The applicant has presented no evidence to support a suggestion that the authorities in Bangladesh, or anyone acting on behalf of the Awami League or their supporters, are either aware or concerned by the applicant’s activities in Australia. The Tribunal is not satisfied that the applicant is of adverse interest to anyone in Bangladesh.

Applicant’s claims about the conduct of his previous migration agent

150.   The Tribunal notes the applicant’s reference to the conduct of his previous migration agent. The applicant’s criticisms are vague and not supported by any intelligible foundation. Instead, the criticisms appear to be an attempt by the applicant to provide a simple answer to any concern that a decision-maker may have about the applicant’s credibility, namely by shifting any blame from the applicant to the migration agent.

151.   The Tribunal does not accept that any of the deficiencies discussed in the decision can be attributed to the conduct of the previous migration agent. Any deficiencies are the responsibility of the applicant, and those deficiencies in terms of residential and employment history, the applicant’s failure to tell the Tribunal that correct constituency for a person he ‘seriously campaigned for’, and a lack of detailing any involvement with the Australian branch of the BNP in his initial written statement are due to the fact that the applicant has manufactured his protection claims in order to achieve a migration outcome.

Applicant’s family in Bangladesh may be the real reason why the applicant has lodged a protection visa to remain in Australia permanently

152.   The Tribunal confirmed with the applicant that he had told the delegate that he had a child with autism in Bangladesh. The Tribunal asked whether the reason the applicant applied for the protection visa was to bring his son to Australia, so he could receive better medical treatment that he would receive in Bangladesh. The applicant said that this was not the reason he applied for a protection visa. The applicant said he was asked by the delegate about his family and that is why he told the delegate about his autistic child and that he was receiving treatment. The Tribunal pointed out to the applicant he had said more than that, including that his son’s treatment cost between $4,000 to $5,000 for treatment, and that he was unable to afford the treatment due to his inability to do business in Bangladesh. In response to the Tribunal’s observation about this, the applicant asked how he could afford this treatment if he was killed.

153.   Noting the concerns that the Tribunal has with the applicant’s claims for the reasons discussed and his response to its observation about the applicant’s autistic son, the Tribunal is satisfied that the applicant’s oral evidence to the delegate about his son is telling. The Tribunal’s view is that the applicant did in fact tell the delegate the truth in this regard, namely that he was having difficulty paying for the treatment in Bangladesh for his autistic son. The Tribunal does not accept that any difficulty paying for treatment was in any way connected to the applicant’s claimed political activities. Instead, the Tribunal is satisfied that the applicant believed that his son, whose photograph was provided and clearly displays some medical condition, is at the heart of the reason why the applicant applied for a protection visa. The Tribunal is satisfied that the applicant planned to be successful in applying for a protection visa with a view of bringing his family to Australia so that his son would be able to get treatment and assistance that would not be available to him in Bangladesh.

CONCLUSION

154.   The Tribunal considered all the information and evidence that it had been provided. Ultimately, it comes to the conclusion that the applicant is not a witness of truth about his claimed experiences in Bangladesh. The Tribunal is satisfied that his backstory concerning his involvement with the BNP, his participation in politics in Bangladesh, the harm he experienced in Bangladesh, any harm claimed to have been experienced by his family members, his involvement in the criminal justice system in Bangladesh, his claimed reason for departing Bangladesh, and his claimed reason for not being willing to return to Bangladesh, are not claims that the Tribunal can give any weight to. The applicant fabricated them to achieve a favourable migration outcome. While the applicant’s wife’s relative may have died, the Tribunal is not satisfied that his death was due to any political activities or political profile of the applicant or the family member in question.

155.   With this finding, the Tribunal comes to the conclusion that any activity associated with the Australian branch of the BNP was not done as a genuine expression of his political belief, but to lend credibility to his protection claims. His involvement with the Australian branch of the BNP will cease when he returns to Bangladesh. He will not become political in Bangladesh because his involvement with the Australian branch of the BNP was not done for any reason other than lending credibility to his protection claim. There is no information to suggest that the applicant is of concern to the authorities in Bangladesh because of his involvement with the BNP in Australia.

156.   The Tribunal is satisfied that the applicant came to Australia with no previous political involvement. He was able to depart Bangladesh because he was of no adverse interest to any person, group of authority. He will be of no adverse interest to anyone in Bangladesh upon his return.

Refugee

157.   For the reasons given above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in Bangladesh due to his race, religion, nationality, membership of a particular social group, or political opinion.

158.   Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary protection

159.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered whether the applicant meets the criteria under s.36(2)(aa).

160.   For the same reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Bangladesh, there is a real risk that the applicant will suffer significant harm.

161.   Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).

Member of the same family unit

162.   There is no evidence that the applicant meets 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

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

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.

…

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.

…