1708603 (Refugee)

[2021] AATA 3167

1708603 (Refugee) [2021] AATA 3167 (18 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708603

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:L. Symons

DATE:18 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 18 May 2021 at 4:38pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – office holder in Bangladesh Nationalist Party (BNP) – threats of harm by Awami League supporters – pursued by police – vague and inconsistent evidence – credibility issues – decision under review affirmed

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Bangladesh, arrived in Australia [in] December 2016 as the holder of a subclass 600 Visitor visa. He applied to the Department of Home Affairs (the Department) for a Protection visa on 21 December 2016. He attended an interview with the Department on 20 March 2017 and the delegate refused to grant the visa on 6 April 2017. On 20 April 2017, he applied to the Tribunal for a review of that decision.

3. The applicant appeared before the Tribunal on 11 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

4. The applicant was represented in relation to the review by his registered migration agent, Mr [A], who attended the hearing.

5. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.

   CRITERIA FOR A PROTECTION VISA

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

7. 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.

8. 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).

9. 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.

10. 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

11. 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 AND FINDINGS

12. The applicant’s claims in his application for Protection visa filed on 21 December 2016 are summarised as follows:

    ·He is the [Office Bearer 1] of [Branch 1] Jatiotabadi Jubo Dal (JJD) for the Bangladesh Nationalist Party (BNP) of [Upazila 1] in the Munshiganj district.

    ·His father is an “authentic” supporter of the BNP. Some of his friends go to his [shop] to discuss politics. He was inspired by his father to be involved with BNP politics.

    ·After completing his Secondary School Certificate examinations in [year], he started studying at [College 1] in Munshiganj. While studying at [College 1], he was involved in BNP politics and became a member of the Jatiotabadi Sattradal (JSD) committee of the college.

    ·After completing his Higher School Certificate in [year], he started working full-time at his father’s [shop]. Since 2003, he has been involved in the JJD politics at [Branch 1] and was the [Office Bearer 2] until December 2010.

    ·While [Office Bearer 2], he participated in many protests against the detention of BNP leaders and the party chairperson by the Faqor Uddin and Moin Uddin-led caretaker government prior to the December 2009 election.

    ·When Sheik Hasina came into power following the December 2009 election, the Awami League (AL) started detaining the BNP's young leaders from his area who protested against the Faqor Uddin and Moin Uddin-led government.

    ·The AL Police also sought to arrest him after the December 2009 election, but his father managed to stop them going to his business and home to detain him.

    ·In January 2011, a new committee for [Branch 1] JJD was formed. He became [Office Bearer 1] and has been in that position until he left Bangladesh [in] December 2016.

    ·Prior to the controversial election in 2014, the BNP leader, Khaleda Zia, called for a boycott of the election. The voters responded in general and his area in particular did not cast a vote in the election on 5 January 2014. His Jubo Dal in [Branch 1] convinced voters not to participate in the 5 January 2014 election. The AL were furious at the JJD leaders at [Branch 1] and wanted to kill him due to his strong anti-vote campaign.

    ·After the election, he actively took part in all of the BNP's anti-AL rallies, protests, processions and the blocking of traffic to restore democracy in the country. The AL could not tolerate him and wanted to kill him.

    ·The Police went to his home after the elections to arrest him. They did not find him as he was at his uncle’s home. The Police tried several more times to arrest him, but he was not living at home since the elections. He had been hiding in [Upazila 1] since the 2014 elections.

    ·After the 2014 election, he was unable to look after his business due to his fear of arrest by the Police or kidnapping by the AL. His father is too old and he could not run his business without an assistant.

    ·The AL have kidnapped several JJD and JSD leaders from [Upazila 1] after the election. The bodies of those who were kidnapped have not yet been found.

    ·Before he travelled to Australia, he made several attempts to flee to Europe, but failed.

    ·He fears for his life in Bangladesh while the AL government is in power. If he returns, the AL and Police will kill him.

13. The applicant filed with the Department a copy of his Bangladeshi passport issued [in] 2015.

14. The applicant attended an interview with the Department on 20 March 2017. He was assisted by a Bengali interpreter. During that interview, he reiterated and expanded on his written claims. He also made new claims that are referred to below.

15. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 6 April 2017, Statutory Declaration dated 3 May 2021, the biodata page of his Bangladeshi passport issued [in] 2020 and a letter of support from [Mr B], [Office Bearer 3] of [Upazila 1] Bangladesh JJD dated 29 April 2021. His Statutory Declaration dated 3 May 2021 is a repetition of his Statement of Claims filed with his application for a Protection visa.

    Receiving Country

16. The applicant claims to be a citizen of Bangladesh and has provided a copy of his Bangladeshi passport to the Department and the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Bangladesh. The Tribunal finds that Bangladesh is his receiving country for the purpose of assessing his claims for protection under the refugee criteria and under the complementary protection criteria.

    Third Country Protection

17. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Assessment of claims

18. The applicant gave evidence to the Tribunal that his application for a Protection visa was prepared by his migration agent, Mr [A], based on his instructions which were true and correct. He was satisfied that his visa application was accurate and complete. There had been no changes in his circumstances since he filed his visa application.

19. During the hearing, the Tribunal discussed with the applicant his background, his family, his education, where he lived, his employment, his involvement in the BNP in Bangladesh and in Australia, why he left Bangladesh and why he fears returning to Bangladesh. The Tribunal found aspects of his evidence to be vague, evasive, contradictory, implausible and unconvincing. There were numerous inconsistencies between his evidence to the Department and his evidence to the Tribunal and within his evidence to the Department and the Tribunal. He made new claims throughout the process. He was unable to provide a consistent and coherent account of events. His behavior in Bangladesh and in Australia was not consistent with his claims. The Tribunal finds that he is not a reliable witness for the following reasons:

20. First, in his Statement of Claims, the applicant claimed that he was involved in the JJD politics at [Branch 1] since 2003 and was the [Office Bearer 2] until December 2010. He claimed that, while [Office Bearer 2] he participated in many protests against the detention of BNP leaders and the party chairperson prior to the December 2009 election. He claimed that when Sheik Hasina came into power following the December 2009 election, the AL started detaining the BNP's young leaders from his area and the Police sought to arrest him after the December 2009 election but his father managed to stop them going to his business and home to detain him.

21. These claims raise a couple of concerns for the Tribunal. Firstly, the country information indicates that there was no General Election in Bangladesh in December 2009. The General Election in Bangladesh was held on 29 December 2008.[1] The Tribunal would expect the applicant to be aware of this if he was an office bearer in the JJD and participated in many protests prior to the election as he claims.

    [1] Final Report of the International Election Observation Mission of The Asian Network for Free Elections, The Asian Network for Free Elections, March 2009.

22. Secondly, in his visa application, which he told the Tribunal was accurate, the applicant stated that he lived at the same address in the Munshiganj district in Bangladesh from January 2000 to December 2016. If the Police wanted to arrest him after the 2008 election, the Tribunal would expect him to have gone into hiding to avoid detection and arrest. Instead he continued to live at his home until he left Bangladesh in 2016. The Police had plenty of time and opportunity between 29 December 2008 and 2016 to arrest him, if that was their intention, but did not do so.

23. These issues raise concerns in relation to the applicant’s credibility and the veracity of his claims.

24. Secondly, in his visa application, which he told the Tribunal was accurate, the applicant stated that he worked at the same [shop] in the Munshiganj district in Bangladesh from January 2000 to December 2016. Despite his evidence to the Tribunal that his visa application was accurate, he gave inconsistent evidence to the Tribunal. He stated that from 2000 he started getting involved in his father’s [shop]. After he completed his HSC in [year], he started working with his father in the [shop] full time from [year]. He stopped working in the [shop] in mid-2009 when the shop closed down as his father was getting elderly. He was not able to do any other work (in Bangladesh). When asked whether he was unemployed between 2009 and 2016, he responded that there was [Industry 1] in his village and he did that in 2009. When asked how he supported himself financially during that period, he responded that his brother lives in [Country 1] and he was sending money to financially support the family. 

25. These inconsistencies in the applicant’s evidence in relation to his employment in Bangladesh raise concerns in relation to his reliability as a witness and the veracity of his claims.

26. Thirdly, in his Statement of Claims, the applicant claimed that in January 2011 he became the [Office Bearer 1] for [Branch 1] JJD and held this position until he left Bangladesh [in] December 2016. He claimed that the BNP leader, Khaleda Zia, called for a boycott of the 2014 election and his Jubo Dal in [Branch 1] convinced voters not to participate in the 5 January 2014 election. He claimed that the AL was furious at the JJD leaders at [Branch 1] and wanted to kill him due to his strong anti-vote campaign.

27. In his Statement of Claims, the applicant claimed that, after the (2014) election, he actively took part in all of the BNP's anti-AL rallies, protests, processions and the blocking of traffic to restore democracy in the country. He claimed that the AL could not tolerate him and wanted to kill him. He claimed that the Police went to his home after the election to arrest him but did not find him as he was at his uncle’s home. He claimed that the Police tried several more times to arrest him, but he was not living at home after the (2014) election and was in hiding. He reiterated these claims in his Statutory Declaration dated 3 May 2021.

28. The applicant’s claim that he was not living at home after the 2014 election and was in hiding to avoid being arrested by the Police is not consistent with his evidence in his application for a Protection visa which he stated was accurate and complete. In his visa application, he stated that he lived at the same address at [Location 1] in Munshiganj district in Bangladesh from January 2000 until December 2016 (when he left Bangladesh to travel to Australia). During the hearing, he gave a third version of events. He stated that he lived at his grandmother’s home at [Location 2] in the district of Munshiganj from the time he completed his studies [until] he got married in mid-2014. After his marriage, he lived at his family home and his grandmother’s home.

29. The Tribunal raised as an issue with the applicant the inconsistencies in his evidence and its concerns in relation to his credibility and the veracity of his claims. He responded that, when a problem arose, he went to his grandmother’s place and when things got “neutral” he returned to his family home. This response does not explain the different versions of his evidence in relation to where he lived in Bangladesh or alleviate the Tribunal’s concerns.

30. Fourth, in his Statement of Claims, the applicant claimed that, after the 2014 election, he was unable to look after his business as he feared being arrested by the Police or kidnapped by the AL. He claimed that his father is old and could not run the business without an assistant. He reiterated these claims in his Statutory Declaration dated 3 May 2021. This is not consistent with his evidence in his application for a Protection visa which he stated was accurate and complete. In his visa application, he stated that he worked in the same job in a [shop] from January 2000 to December 2016.

31. During the hearing, the applicant gave a third version of events. He stated that his father closed down the business (the [shop]) in mid-2009 and he did not work in Bangladesh thereafter. When the Tribunal sought to confirm that he was unemployed between mid-2009 and 2016, he responded that there was [Industry 1] in his village and he did that in 2009. When asked how he supported himself financially if he was not working, he responded that he has a brother who lives in [Country 1] who sent money to Bangladesh to support the family.

32. The Tribunal raised as an issue with the applicant the inconsistencies in his evidence and its concerns in relation to his credibility and the veracity of his claims. He responded that his father became ill and he was unable to operate the shop due to his ill health, so the shop was closed. He was still working in [Industry 1]. This response does not explain his claims and the different versions of his evidence in relation to his employment issues in Bangladesh or alleviate the Tribunal’s concerns.

33. Fifth, in his Statement of Claims, the applicant claimed that the AL kidnapped several JJD and JSD leaders from [Upazila 1] after the (2014) election and the bodies of those who were kidnapped had not yet been found. He reiterated this claim in his Statutory Declaration dated 3 May 2021.

34. The applicant attended an interview with the Department on 20 March 2017. During that interview, he stated that after the 2014 election people who lived far from where he lived were picked up, beaten and were missing. He stated that he was fearful that this would happen to him. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that this was not consistent with his claims in his Statement of Claims. The Tribunal noted that this inconsistency in his evidence raised concerns in relation to the credibility of this claim. He responded that there is still a problem in his area. This response does not explain the inconsistency in his evidence or alleviate the Tribunal’s concerns.

35. Sixth, in his Statement of Claims, the applicant claimed that, before he travelled to Australia, he made several attempts to flee to Europe, but failed. He reiterated this claim in his Statutory Declaration dated 3 May 2021.

36. During the hearing, the applicant gave inconsistent evidence. He stated that he has never applied for a visa to travel to any country other than Australia. He has filed with the Tribunal a copy of the Department’s Decision Record dated 6 April 2017 which indicates that he applied for a Visitor visa on 26 October 2016. In view of his claims that he was in hiding since the election on 5 January 2014 and in fear for his life, the Tribunal would expect him to have taken steps prior to 26 October 2016 to apply for a visa so that he could depart Bangladesh. His failure to do so and his inconsistent evidence raises further concerns in relation to his credibility and the veracity of his claims.

1. Seventh, the applicant gave evidence that he first applied for a passport in 2015. He provided the Department with a copy of the bio data page of his Bangladeshi passport which indicates that it was issued [in] 2015 and was valid until [2020]. The Tribunal asked him why he applied for a passport in 2015. He responded that he was not able to do much in his country and was hoping that his brother (in [Country 1]) would arrange for him to go overseas. His brother was not able to organize for him to go overseas so when he found out about Protection visas, he decided to come to Australia. Someone at his workplace (in Australia) advised him to apply for a Protection visa as that was how he could stay in Australia for a long time.

2. The Tribunal would expect that if the applicant was seeking his brother’s assistance to go overseas because he feared for his life in Bangladesh, he would have applied for a passport soon after the election on 5 January 2014. However, his delay in applying for a passport until [2015] and his evidence tends to indicate that he wanted to come to Australia for other reasons. His evidence raises concerns for the Tribunal in relation to the reasons why he left Bangladesh and his motivation for applying for a Protection visa in Australia.

3. Eighth, despite having filed a detailed Statement of Claims with his application for a Protection visa, attended an interview with the Department on 20 March 2017 and filed a Statutory Declaration dated 3 May 2021 with the Tribunal, the applicant made new claims throughout the hearing. When asked whether he had any problems with the Police or any other Bangladeshi authority during the time he was the [Office Bearer 2] of the Jubo Dal, he responded that he could sometimes comprehend that the problem was coming so it did not affect him. When asked to explain what he meant by that, he responded that on one occasion between 2009 and 2010 the Police came and he ran away.

4. The Tribunal asked the applicant why he ran away. He responded that he kept records as the [Office Bearer 2] and if they captured him, he could have gone to gaol. When asked why he could have gone to gaol for maintaining records, he responded that they had money to engage the membership and encouraging people not to be involved in other movements and that was something they did not like.

5. The applicant gave evidence that there was another occasion in mid-2014 when the Police went to his house to arrest him as he had participated in a protest or rally. He stated that there was fighting and chasing each other. When asked to tell the Tribunal about the fighting, he responded that if people attend protests or rallies that the government does not allow sometimes fights break out. When asked if he was involved in any fighting, he responded that he sometimes went to rallies and sometimes did not. The Police try to disperse the crowds and there is chasing around and running away. When asked if anyone chased him, he responded that the Police and AL supporters did in 2008. When asked how it was that the Police had been looking for him since 2008 and had not been able to find him, his answer was non-responsive.

6. The Tribunal asked the applicant whether he had any other problems with AL members or supporters during the time he was the [Office Bearer 2] of the Jubo Dal. He responded that he did. They were trying to capture and assault him and the people who were in his village and the next village. When asked whether he was assaulted by anyone, he responded no. They could not catch him as he escaped. When asked whether there was any reason why he had not mentioned this before, he responded that he failed to recall it.

7. The Tribunal asked the applicant whether he had any other problems with the Police, AL members or supporters in Bangladesh that he had not told the Tribunal about. He responded that there had been no other incidents. He was in hiding at his grandmother’s house.

8. The Tribunal asked the applicant whether any of his family members had any problems in Bangladesh. He responded that after he came to Australia people from the AL had gone to his house twice between 2017 and 2018. His family told him about this in 2017 or 2018. When asked whether there was any reason why he had not mentioned this in his Statutory Declaration dated 3 May 2021, he responded that he failed to recall it. He did not know that he could add this to his statement. When the Tribunal noted that he was represented by a migration agent and would have expected him to have provided these instructions to his migration agent, he responded that he agreed that he should have.

9. The Tribunal finds that the applicant’s failure to mention these claims in his Statement of Claims and his Statutory Declaration dated 3 May 2021 is significant particularly as his Statement of Claims was prepared on 19 December 2016, 2 weeks after his arrival in Australia [in] December 2016, when events would have been fresh in his mind. This raises concerns about the credibility of these claims.

10. Ninth, the applicant attended an interview with the Department on 20 March 2017. During that interview, he was asked whether he had any problems with the Bangladeshi authorities because of being the [Office Bearer 2] and later the [Office Bearer 1] of the JJD. He responded that he had no problems. He later stated that the Police would go to his house or workplace looking for him. During the hearing, he stated that the Police went to his house looking for him and AL supporters went to his house twice after he left Bangladesh looking for him.

11. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that the inconsistencies within his evidence to the Department and between his evidence to the Department and the Tribunal raised concerns in relation to the credibility of these claims. He declined to comment on or respond to this information.

12. Tenth, the applicant attended an interview with the Department on 20 March 2017. During that interview, he made a new claim that he received a number of verbal threats from neighbours. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that he had made no mention of this claim in his Statement of Claims or his Statutory Declaration dated 3 May 2021 or in his oral evidence to the Tribunal. The Tribunal noted that this raised concerns in relation to the credibility of this claim. He declined to comment on or respond to this information.

13. Eleventh, in his Statement of Claims, the applicant claimed that the Police tried to arrest him several times after the 2014 election but were unable to do so as he was in hiding after the election. Despite this, he was allowed to depart Bangladesh in 2016 without any problems. The Tribunal raised this as an issue with him and noted that it was unlikely that he would have been allowed to depart Bangladesh if there was an outstanding warrant for his arrest. The Tribunal noted that, the fact that he was not stopped at the airport by the Bangladeshi authorities, tends to indicate that he is not of adverse interest to them.

14. The applicant responded that there were some people who assisted him “based on money”. He escaped because help was purchased through money. The Tribunal noted that he applied for a Protection visa in 2016 and enquired as to whether there was any reason why he had never mentioned this until the hearing (in 2021). He responded that he failed to recall and provide this information. The Tribunal does not accept that he forgot to recall and provide this information.

15. The applicant’s detailed Statement of Claims is dated 19 December 2016 which was 14 days after he arrived in Australia [in] December 2016. The Tribunal would expect him to have had a very clear memory of bribing Bangladeshi authorities at the airport (if this is what he is claiming) to enable his departure from Bangladesh [in] December 2016. The Tribunal would expect him to have mentioned this in his Statement of Claims as it is integral to his claims for why he fears returning to Bangladesh. He also had other opportunities to mention this new claim during his interview with the Department on 20 March 2017 and in his Statutory Declaration dated 3 May 2021 but failed to do so. His raising of this new claim for the first time at the hearing raises concerns in relation to his credibility and the veracity of this claim.

16. Twelfth, in his Statement of Claims, the applicant claimed that “AL criminals” wanted to kill him since prior to the 2014 election and he feared being kidnapped by them after the election. He also claimed that the Police went to his home after the 2014 election to arrest him but he was not home. They returned several times later to arrest him but were unable to do so as he did not live at his home after the 2014 election. He claimed that he had been in hiding since the 2014 election. However, his subsequent conduct is not consistent with these claims. He made an application to the AL government for the issue of a passport and was issued with a passport [in] 2015. He would have had to provide an address and contact details in his application for the passport but was not arrested.

17. The Tribunal raised this is an issue with the applicant and noted that it was highly unlikely that, if there was an outstanding warrant for his arrest (since 2014), he would have been issued with a passport in 2015. He subsequently renewed that passport and was issued with a new passport [in] 2020. The Tribunal noted that these issues raise concerns about his credibility and the veracity of his claims. He responded that in Bangladesh it is not necessary to be physically present to be issued with a passport. There are a lot of people whose help can be sought to obtain a passport.

18. The Tribunal is prepared to accept that the applicant used an agent in Bangladesh to apply for a passport on his behalf and subsequently renew that passport. However, the Tribunal does not accept that an agent applying for the passport or renewing the passport on his behalf would make any difference to the Bangladeshi authorities in terms of their decision to issue a Bangladeshi passport to someone who the Police were searching for to arrest. His response does not alleviate the Tribunal’s concerns.

19. Thirteenth, the applicant’s conduct in Bangladesh was not consistent with his claims. The records of the Department indicate that he was granted a Visitor visa on 2 November 2016. However, he did not arrive in Australia until [December] 2016. This was more than one month after he was granted the Visitor visa. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that his delay in arriving in Australia after he was granted the Visitor visa was not consistent with his claims that he was in hiding in Bangladesh and in fear for his life. The Tribunal noted that, if that was true, it would expect him to have left Bangladesh as soon as possible after he was granted the Visitor visa. The Tribunal noted that his conduct raised concerns in relation to his credibility and the veracity of his claims.

20. The applicant responded that he is from a middle class family and it took him time to raise the money. The Tribunal does not accept this explanation as it is of the view that if his life was at risk, as he claims, his brother would have sent him the money from [Country 1] or his father would have borrowed the money and got him out of Bangladesh soon after he obtained the Visitor visa.

21. Fourteenth, the Tribunal asked the applicant whether he had participated in any BNP related activities since he came to Australia. He responded that he had. He stated that, since coming to Australia in 2016, he has been a member of a committee. He pointed to his migration agent, Mr [A], and stated that Mr [A] is the [Office Bearer 4] of the BNP committee that he is a member of. There are two committees in [location]. One is called [Organisation 1] and he cannot recall the name of the other.

22. The Tribunal asked the applicant about the purpose of the committee. He responded that it is similar to what they do in Bangladesh. There is a $10.00 membership fee. They collect money and send it to Bangladesh. When asked who the money is sent to in Bangladesh, he responded that it is sent to Bangladesh but they do not know who receives the money. When asked whether he was giving money and did not know who it went to, he responded that it went to the BNP in Bangladesh.

23. The Tribunal asked the applicant whether the committee did anything else. He responded that it was similar to Bangladesh. There are meetings and sometimes they attend protests, rallies and demonstrations. When asked whether he had attended protests, rallies and demonstrations in Australia, he responded yes. He stated that Sheik Hasina came to Australia in 2014 and there was a protest. When the Tribunal pointed out that he was not in Australia in 2014, he responded that it was around 2017 and he attended the protest that was in a hotel close to the harbour. She came here to receive an award and they protested against that. When asked whether he had attended any other protests, rallies or demonstrations in Australia, he responded no. He just attended regular meetings.

24. At the end of the hearing, the applicant’s migration agent made oral submissions including that he is not the [Office Bearer 4] of the BNP Committee in Australia as stated by the applicant. He stated that the “committee” is [Organisation 2], he is the [Office Bearer 3] of that [organisation] which is open to all Bangladeshi expatriates.

25. Whilst the applicant’s migration agent’s submission is technically not evidence before the Tribunal, the Tribunal is not bound by the rules of evidence. The Tribunal accepts Mr [A]’s submission that the BNP Committee in Australia that the applicant claims to be a member of is, in fact, [Organisation 2]. This leaves the Tribunal with two alternatives; either the applicant deliberately sought to mislead the Tribunal in relation to his political activities in Australia or he did not understand the difference between a community organisation and a political organisation and thought that social gatherings were political meetings. If the Tribunal gives him the benefit of the doubt and accepts the latter, it raises concerns about his understanding of politics and the extent of his involvement in politics in Bangladesh.

26. Fifteenth, the applicant provided the Tribunal with a supporting letter dated 29 April 2021 from ]Mr B], [Office Bearer 3], [Upazila 1], Bangladesh Jatiotabadi Jubo Dal. The Tribunal asked the applicant a number of questions in relation to how he obtained this letter, the author of the letter and the contents of the letter. He stated that the person who was the [Office Bearer 4] at the time he was in Bangladesh obtained the letter for him from the current [Office Bearer 4]. He then stated that he was not aware of the whereabouts of the person who was the [Office Bearer 4] at the time he was in Bangladesh and he obtained the letter (directly) from the author of the letter.

27. The applicant gave evidence that he knows the person who is the current [Office Bearer 4] and that person knows him. When asked the name of the current [Office Bearer 4], he hesitated and then stated that he knows him by the name [Mr C]. He spoke to him over the telephone before he prepared the letter and described his situation to him. He told him what he should put in the letter. The letter states that the applicant is known to him, has been involved with various activities of the Bangladesh Nationalist Jubo Dal since 2003 and served as the Senior [Office Bearer 1] of [Branch 1] of the Bangladesh Nationalist Jubo Dal. He is an honest and ideological political activist. “Local ruling party cadres attacked him more than one time to kill him” and he is aware that “the conspirators have filed multiple false charges against him”. Fearing for his life, he was forced to leave the country and if he returns, his life would be at risk.

28. Despite having many opportunities to do so, the applicant has never claimed that he was attacked on more than one occasion or that multiple false charges were laid against him. The Tribunal raised these issues with him and it’s concerns in relation to the authenticity of this letter. The Tribunal also discussed with him country information in relation to the widespread use of fraudulent documents in Bangladesh.[2] He responded that the letter is a “true letter” and in recent years you cannot “make fake documents in Bangladesh”.

    [2] DFAT Country Information Report on Bangladesh, 22 August 2019.

29. In view of the applicant’s evidence that he told [Mr C] what to say in the letter and the inconsistencies between the applicant’s own evidence and some of the contents of the letter, the Tribunal places no weight on this letter.

30. The Tribunal has considered the submissions made by the applicant’s migration agent.

    Other considerations

31. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the DFAT Country Information Report on Bangladesh and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

    Findings

32. Having considered all of the applicant’s claims, all the evidence and submissions, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he has fabricated his material claims for the purpose of obtaining a Protection visa.

33. The Tribunal accepts that the applicant was born on [date] in Munshiganj district in Bangladesh. The Tribunal accepts that he has an older brother and [number] sisters. The Tribunal accepts that he was married [in] June 2012 and has a [age] year old son. The Tribunal accepts that his parents, wife, son and sisters live in Bangladesh and his brother lives and works in [Country 1].

34. The Tribunal accepts that the applicant completed his HSC in [year] and commenced full time work in his father’s [shop] in [year]. The Tribunal accepts that his father became ill in 2009 and closed down his shop in mid-2009. The Tribunal accepts that he was thereafter unable to secure regular employment in Bangladesh. The Tribunal accepts that he and his family were financially supported by his brother. The Tribunal accepts that he hoped that his brother would be able to arrange for him to go overseas but that did not eventuate. The Tribunal accepts that he subsequently made arrangements to come to Australia.

35. The Tribunal accepts that the applicant’s father supported the BNP and this influenced the applicant to also support the BNP. The Tribunal accepts that when he was at College, he became involved in politics in the Chhatra Dal and participated in protests. The Tribunal accepts that after leaving College, he became involved in politics in the Jubo Dal at [Branch 1]. The Tribunal accepts that he may have been given a title but does not accept that he held any position of authority or leadership or prominence. The Tribunal accepts that he participated in rallies and protests organised by the Jubo Dal.

36. The Tribunal is not satisfied, on the evidence before it, that he initiated or organised any meetings, protests, rallies, demonstrations, campaigns or other political activities or made any important decisions in this regard. The Tribunal is of the view that his involvement in the Jubo Dal extended to following instructions from the leaders at the local level. The Tribunal does not accept that the Police tried to arrest him after the 2008 elections, or alternatively, the 2009 elections. It follows that the Tribunal does not accept any of his claims that flow from that including that they went to his house or his workplace looking for him. The Tribunal does not accept that the Police and AL supporters chased him in 2008.

37. The Tribunal does not accept that AL members or supporters tried to capture and assault the applicant and the people in his village and the next village. The Tribunal accepts that he was not assaulted by anyone. The Tribunal does not accept that he received a number of verbal threats from neighbours. The Tribunal does not accept that the AL wanted to kill him after the 2014 election due to his strong anti-vote campaign, his participation in protests and rallies or any other reason. It follows that the Tribunal does not accept any of his claims that flow from that.

1. The Tribunal does not accept that the Police went to the applicant’s house or his workplace after the 2014 elections to arrest him. It follows that the Tribunal does not accept any of his claims that flow from that including that he did not live at his home after the 2014 election, was in hiding and was unable to look after his business or his father’s business. The Tribunal accepts that he lived at his family home from January 2000 to December 2016 when he left Bangladesh to travel to Australia. The Tribunal accepts that he worked in his father’s business ([specified] shop) until mid-2009 when his father closed down his business due to his ill-health and that he had no regular employment thereafter. The Tribunal does not accept that he had his own business. 

2. The Tribunal does not accept that the AL kidnapped several JJD and JSD leaders from the applicant’s [Upazila 1] after the 2014 election and their bodies have not yet been found. It follows that the Tribunal does not accept any of his claims that flow from that.

3. The Tribunal does not accept that, before he travelled to Australia, the applicant made several attempts to flee to Europe, but failed. The Tribunal accepts that he has not applied for a visa to travel to any country other than Australia. The Tribunal does not accept that he, or someone else on his behalf, bribed Bangladeshi authorities so that he could leave Bangladesh without a problem. The Tribunal does not accept that, after he came to Australia, people from the AL went to his house twice between 2017 and 2018. The Tribunal accepts that he attended a protest in Australia in 2017 against Sheikh Hasina being granted an award. The Tribunal does not accept that he has participated in any other BNP related activities since he came to Australia.

4. The Tribunal places no weight on the supporting letter dated 29 April 2021 from [Mr B], [Office Bearer 3], [Upazila 1], Bangladesh Jatiotabadi Jubo Dal, for a number of reasons. Firstly, despite claiming that he knew Mr [B] and Mr [B] knew him and he had spoken to Mr [B] before he wrote the letter, the applicant did not know his name and referred to him as [Mr C]. Secondly, the applicant’s evidence is that he contacted Mr [B], told him about his situation and told him what to write in the letter. This letter is therefore self-serving. Thirdly, the Tribunal did not have the opportunity to test Mr [B]’s evidence. Fourthly, some of the evidence given by Mr [B] is inconsistent with the applicant’s own evidence.

5. The Tribunal does not accept that the applicant was or is of adverse interest to the Police or any other Bangladeshi authority. The Tribunal does not accept that he was a senior or high profile BNP office holder at a local level who was and/or is of adverse interest to AL members or supporters for this reason.

6. The Tribunal does not accept that the applicant left Bangladesh for any of the reasons claimed or that he fears returning to Bangladesh for any of the reasons claimed. The Tribunal accepts that he does not wish to return to Bangladesh and would prefer to live and work in Australia and to financially support his family.

7. The Tribunal has considered whether there is a real chance of serious harm or a real risk of significant harm to the applicant, because of his support of the BNP, his membership of the Chhatra Dal as a student, his subsequent membership of the Jubo Dal and any title or position he held in the Jubo Dal, if he returns to Bangladesh now or in the foreseeable future. It has been 4 ½ years since he left Bangladesh in 2016. The Tribunal has found that he has not been involved in any BNP related activities in Australia since his arrival here other than attending a protest in 2017 against Sheikh Hasina being given an award in Australia.

8. The applicant was not able to distinguish between a community organisation to support Bangladeshi expatriates in Australia and a BNP committee in Australia. These factors raise serious doubts about his commitment to the BNP and the likelihood of him being involved in any BNP related activities on his return to Bangladesh.

9. DFAT assesses that, “under the current AL government, senior members of the opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges and travel bans. Active members of opposition political parties and auxillary organisations who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. This risk is elevated around times of heightened political tension, including elections. Those who are members of opposition political parties and auxillary 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.’[3]

   [3] Ibid.

10. Having considered all the evidence, the Tribunal is not satisfied that there is a real chance of serious harm or a real risk of significant harm to the applicant for any of the reasons claimed if he returns to Bangladesh now or in the reasonably foreseeable future. 

    Does Australia have protection obligations to the applicant under the refugee criterion?

11. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for reason of his actual or imputed political opinion or any other reason set out in s.5J(1)(a) of the Act if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

    Does Australia have protection obligations to the applicant under the complementary protection criterion?

12. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

13. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Bangladesh now or in the reasonably foreseeable future. 

14. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act. 

    CONCLUSION

15. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.

16. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criterion in s.36(2) of the Act.

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons
         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.

…