1708625 (Refugee)

[2017] AATA 1503

1708625 (Refugee) [2017] AATA 1503 (8 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708625

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:C. Packer

DATE:8 August 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 08 August 2017 at 1:28pm

CATCHWORDS

Refugee – Protection visa – Bangladesh – Federal Circuit Court remittal – Religion – Muslim – Social group – Homosexual – Criminal conduct  – Credibility issues

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J, 5K-LA, 36, 65, 438, 499
Migration Regulations 1994, 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. The applicant is a man aged [age], born in Bangladesh and a citizen of Bangladesh.

2. The applicant arrived in Australia [in] April 2009, as a holder of a [Temporary 1] visa, and had travelled on a Bangladesh passport issued [in] 2008 and valid to [2018].

3. His application for another [Temporary 1] visa was refused [in] August 2010, but on 14 January 2013 the Migration Review Tribunal set aside the refusal. [In] February 2013 a [Temporary 1] visa was granted valid to [March] 2014. His next [Temporary 1] visa application made on [March] 2014 was refused [in] January 2015.

4. [In] July 2013 the applicant was charged in [State 1] with [criminal charges]. [In] July 2014 he was convicted of [criminal offences] and sentenced to a term of imprisonment for [number of] years commencing [in] June 2014, to be released after one year on a recognisance to be of good behaviour. He was released from prison [in] June 2015 and was then Immigration detained, and transferred to [IDC] [in] June 2015.

5. [In] June 2015 the applicant applied for a Protection (Class XA) visa.

6. [In] December 2015 the applicant attended an interview with a delegate of the Minister for Immigration.

7. [In] August 2016 the delegate refused the application under s.65 of the Migration Act.

8. On 23 August 2016 the applicant applied for review of the delegate’s decision.

9. On 7 October 2016 the applicant attended by video a Tribunal hearing (differently constituted and hereafter referred to as Member 1).

10. On 23 November 2016 the Tribunal differently constituted by Member 1 in case number 1613399 affirmed the delegate’s decision.

11. [In] April 2017 the Federal Circuit Court [remitted] by consent the Tribunal decision by Member 1 on the basis that the Tribunal failed to consider relevant material, namely the sentencing remarks of [the judge] in the District Court of [State 1] [in] July 2014.

12. On 19 July 2017 the applicant attended by video a Tribunal hearing.

13. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS

Background

1. The applicant’s protection visa application provided very little background information. He claimed he had been born in Noakhali in Bangladesh, but he also gave just one address since birth that was an address in [Dhaka]. He is a Muslim. He gave no details about family members and showed no employment. He indicated he had been issued a [Temporary 1] visa in March 2009 in Dhaka and had entered [Australia]. He indicated he had been convicted of [criminal offences] in Australia [in] July 2014. At my hearing the applicant said he had parents [and siblings] in Bangladesh. He said he continues to be a practising Muslim.

Summary of claims

1. The applicant claims:

   ·    His sexual orientation is homosexual. He fears that he will be harmed in Bangladesh as homosexuality is against the law.

   ·    Some people in Bangladesh know he is a homosexual. This is because when he last visited Bangladesh in February-March 2013 he went with a friend to a hotel in Noakhali where they had sex and they were caught in the act. Local people and Muslim fundamentalists became involved and attacked him in the hotel, injuring two toes and knocking him unconscious. After he regained consciousness in a hospital he returned to Dhaka.

   ·    He returned to the family home in Dhaka but after a couple of days he had to go into hiding to a friend’s place because Muslim fundamentalists searched for him and told the parents they wanted to kill him.

   ·    When he returned to Australia he went one time with a male friend to a gay bar [in] [City 1] and there he was promptly identified by a Bangladeshi and this got back to the parents.

   ·    He gave information about the criminal activities of [Mr A] to [Agency 1]. [Mr A] fled Australia and [in] January 2014 sent a threatening email to the applicant. The applicant fears [Mr A] will kill him if he returns to Bangladesh.

   ·    He is a convicted criminal and fears he will be arrested and questioned by the authorities on his return to Bangladesh.

Evidence

1. The evidence before the Tribunal includes the following material:

• The applicant’s Protection visa application form lodged [in] June 2015, which includes handwritten reasons for seeking protection in Australia, and a statement dated [November] 2015

• Passport pages

• The Protection visa decision record (‘delegate’s decision’) dated [August] 2016, which is the subject of this review

• The Release certificate from [State 1] Corrective Services that shows he had been in custody from [July] 2014 to  [June] 2015

• The application for review

• Copy of the [State 1] District Court [Judge]’s sentencing remarks [in] July 2014

• Two photos showing his toes; a document headed ‘Country information of B about Homosexual’; a Bachelor degree

• Copy of the email (untranslated) sent by [Mr A] (sender is identified as ‘[name]’) [in] January 2014

• The Tribunal decision by Member 1 dated 23 November 2016

1. The key points in [State 1] District Court [Judge]’s sentencing remarks [in] July 2014 concerning the applicant  are:

   1.He was the person at the end of the chain of illegal behaviour.

   2.No submissions had been put to the Judge about physical or mental conditions. “I can only assume there is nothing which I need to take into account”.

   3.He was not involved in the planning.

   4.He assisted the police and provided information in relation to [Mr A]. The Crown submitted the offer of assistance had been limited and is limited to that of intelligence.

   5.He has a nil criminal record here and in Bangladesh.

   6.“He is the eldest of [his siblings] and it is mentioned at least twice in the pre-sentence report that the offender has not mentioned these proceedings to his family in Bangladesh.”

   7.When he first became involved he did not understand or fully appreciate the extent of his criminal conduct.

   8.The text of the email from [Mr A], translated into English, was quoted.

   9.He worked in [a certain] industry.

   10.He had good prospects of rehabilitation.

2. A hearing was scheduled for 12 July 2017 to be undertaken by video between Melbourne and [Immigration Detention Centre]. However, on 4 July 2017 the applicant requested a postponement of the hearing for at least two months for the reasons: he wished to get legal advice and help to prepare for the hearing; he was seeking pro bono assistance [and] this may take some time; he needed an opportunity to prepare written submissions and arguments; his English is not fluent. After careful consideration I did not agree to postpone the scheduled hearing and on 4 July 2017 the applicant was advised in part:

   The hearing will proceed as scheduled, with the assistance of a Bengali interpreter.

   The Member has considered the reasons you have given for asking for a postponement of at least 2 months. However, the Member considered the lengthy time you have been in detention, having been transferred to [IDC] [in] June 2015, and first sought review by the AAT on 23 August 2016, had a hearing on 7 October 2016, and the AAT (differently constituted) affirmed the refusal decision on 23 November 2016. The Federal Court remittal was then made [in] April 2017, now almost 3 months ago. The Member considers that at every stage in the process outlined, you have had a very long time to seek representation. In summary, in light of the length of time you have been detained ( 2 years), and the length of time since you lodged your AAT review (over 10 months), or since the Federal Court decision (3 months) – The Member decided not to postpone the scheduled hearing.

3. Then on 11 July 2017 an Appointment of Representative/Authorised Recipient form was received by the Tribunal that ostensibly appointed [Mr B] as representative and was signed by [Mr B] but not by the applicant. In the accompanying email [Ms C] stated:

   I am assisting [Mr B] with this matter via a referral from [the pro-bono assistance] to assist [the applicant] on a pro-bono basis. I have attached the Appointment of Representative form. Please note that as [the applicant] is in detention, we are unable to have him sign the form at short notice.

   I understand that this matter is listed for hearing at 10:30 am tomorrow 12 July 2017. However, as we received the referral just a few days ago, we would be extremely grateful if the Tribunal would grant an adjournment so that we can review the case and prepare for the hearing. Our first opportunity to interview [the applicant] was yesterday evening. We are now seeking a number of pieces of evidence from [the applicant] which may prove his homosexuality and will therefore be highly relevant to the hearing. Our preference would be for at least a 6 week adjournment.

4. After careful consideration of this request I agreed to adjourn the hearing for one week. This advice was sent to [Mr B] as authorised recipient. [Mr B] then advised by email on 11 July 2017 that: he and [Ms C] were “not presently engaged to represent” the applicant; their role was limited to interviewing him and then providing an opinion on merit to [the pro-bono organisation] and no more than that; the request for adjournment was to enable the applicant to follow up suggested lines of inquiry to prove his case and for him to advise the Tribunal as to what evidence he proposed to adduce. Following this advice, by letter dated 11 July 2017 the Tribunal gave the applicant details of the foregoing correspondence and advised:

   Based on [Mr B]’s strong advice that he and [Ms C] are “not presently engaged to represent” you, together with the fact that they sought to limit the ‘appointment’ to act for you just on 12 July 2017, and as you did not actually sign the Appointment form, the Tribunal has formed the view that [Mr B] had not been validly appointed by you as your representative and authorised recipient. That means they will no longer receive correspondence on your behalf.

5. The applicant appeared before me by video to give evidence and present arguments, on 19 July 2017. The hearing was conducted with the assistance of an accredited interpreter in the Bengali and English languages, who sat with me. The applicant stated he understood the interpreter, and during the hearing he did not tell me he had any difficulties with the interpretation. The quality of the video reception was very high throughout the hearing and the slight audio lag did not adversely affect the proceedings.

6. At the start of the hearing I asked whether he was well and able to talk about his story, and he stated he had been in detention a long time and was physically and mentally tired. He then confirmed that his mind was clear and he was able to talk about his story. During the hearing he appeared to fully understand questions and he gave coherent answers and explanations. I assess that he was competent to give evidence and had a full opportunity to put forward his story and arguments.

7. At the end of the hearing I asked the applicant whether [Mr B] was assisting him and he described the brief help given by [Mr B] and [Ms C]. He agreed that they were not his appointed representatives.

8. The Department had not issued a certificate under s438 of the Act.

Assessment of claims: credibility

1. The applicant claims to be a national of Bangladesh. Photocopies of a Bangladesh passport are on the Department’s file. All the available evidence, including the applicant’s oral evidence and familiarity with Bangladesh, supports his claim to be a Bangladesh national. Bangladesh is therefore the country of reference for the purpose of assessing the applicant’s protection claims, and the receiving country when assessing his claims against the complementary protection grounds.

2. While the applicant is convicted of [criminal offences], I did not consider this showed he was not a credible witness in the matter before the Tribunal. 

His claim to be a homosexual man

1. The applicant’s narrative is centred on his claim to be a homosexual man. In his application and at my hearing he used the term ‘gay’ when he spoke about his sexual orientation. He has spoken of his childhood when he realised he was homosexual. He has spoken of the time when he told his parents of his sexual orientation and their reaction. He says he had no active homosexual relationships before he came to Australia [in] 2009. The only gay sex he has spoken of is with a friend named [Mr D] when he returned to Bangladesh in 2013, and he says they were caught in the act and attacked. He says that when he returned to Australia he went with a male friend one time to a gay bar [in] [City 1] and there he was promptly identified by a Bangladeshi and this was reported back to the parents. However, I disbelieve his narrative and evidence about his sexual orientation and do not accept that he is a homosexual man. My discussion follows.

His early life in Bangladesh

1. At the hearing I asked when he realised he was different and he said at the age of [age] to [age] years. I asked what he was thinking at that time, and he said he went around with boys. When I pointed out that would have been usual in Bangladesh and indeed he went to a Boys school, he replied that he was interested in boys and not in girls, and his family came to know this. I asked how the family came to know and he said they wanted him to marry but he told them he did not want to marry as he was interested in boys. He said as a consequence in January 2009 he was sent to a mental health counsellor who advised it was not a disease and prescribed sleeping medicine. He at first said he had one or two consults but when I queried his vague evidence he confirmed he had two consults. At Member 1’s hearing the applicant also stated he had not been able to express his feelings for boys because his family were very conservative, and he explained that at the time in January 2009 his parents had told him no one should know about his attraction to men and he had to hide these things, and if he ever expressed these things they would kill him.

2. In light of his parents’ concern with his sexual orientation I asked why he had just the two consults with the counsellor and he said they could not afford it, although he did not remember the cost. But as I put to him, just months later the parents financed his expensive travel to [Australia] and this seems inconsistent with his evidence that they could not afford to continue his counselling. He replied that at the time he had no physical problem and he pressured the parents to send him to Australia and they acted on that. I then put to him my concerns that having just rejected their marriage plans and revealing he was interested in men, it is unlikely the parents then promptly agreed to send him away from the family to Australia. He replied he negotiated with the parents and he had also agreed to forget this thing.

3. In sum, the applicant’s evidence is that from the start of his teenage years he realised he was interested in boys and was gay, but he had not told anyone this until January 2009. Despite ample opportunity he has not claimed that he acted upon his realisation in any way or that he had any interaction of a gay nature before he departed Bangladesh [at] [age]. His evidence is also that the parents came to know about his sexual orientation when he rebuffed their plans to get him married and in January 2009 actually sent him to a mental health counsellor. However, I find unpersuasive his evidence that he was unable to attend any more than two consults because the family could not afford it, because as I pointed out, just a few months later he travelled to Australia [which] shows the family had financial resources. I also find unconvincing his narrative that a religious and conservative family, having had their plans to marry him rebuffed and being told by him that he is only interested in boys, would then immediately arrange for him to go to Australia. His explanation that they agreed to send him merely because he agreed to forget about being gay does not support his narrative of a deeply conservative family who had such serious concerns with the applicant’s sexual orientation that they even sent him to a mental health counsellor. As well, in the applicant’s narrative the counsellor did not undertake any treatment beyond prescribing sleeping tablets and advising that this sexual orientation was not a disease, and so ostensibly that scant counselling would not have allayed the parents’ serious concerns. In light of these circumstances I find unpersuasive his evidence that based on his mere undertaking to forget about his sexual orientation the parents then organised and paid for him to [travel] away from his family in a liberal Western country.

His life [in] Australia

1. The applicant arrived in Australia as a [age] year old [and] his application shows he lived at an address in [a suburb], [City 1]. Despite ample opportunity the applicant has not claimed that during this period he acted in any way upon his realisation that he was attracted to men or that he had any interaction of a gay nature in [City 1].

His liaison with [Mr D] in Bangladesh

1. In the applicant’s narrative, the only interaction of a gay nature he has ever had was back in conservative Bangladesh with a man named [Mr D] who lived in Dhaka. At my hearing he described how he met [Mr D] on [social media] in 2009. At first he said he could not remember how they started their contact on [social media] but as I examined his evidence he said they met through a mutual friend, and then they shared their feelings and came to know that the other was gay. However, the applicant’s evidence is that when he returned to Bangladesh for a month visit in July to August 2011 he did not seek to meet [Mr D]. When I queried why he had not, he explained he did not have a relationship with [Mr D] beyond saying hello on [social media]. However, this explanation was not consistent with his earlier description of them having shared their feelings and sexual orientation. When I queried why he had not sought to meet [Mr D] given that they had become friends through [social media], he then gave a different explanation that he had been angry with [Mr D] at that time and so did not want to see [Mr D] during the visit. But when I queried what had made him angry with [Mr D] he said he could not remember. At Member 1’s hearing he gave the explanation that [Mr D] lived far away from him in Dhaka, although at my hearing he said [Mr D] lived with parents in Shyampur that was half an hour from the applicant’s family home, which as I pointed out is not far away for Dhaka. In sum, I find unconvincing the applicant’s narrative that despite becoming friends on [social media] he chose not to contact [Mr D] when he visited Dhaka in 2011 for the changeable reasons as I examined his evidence, of not having a friendship beyond saying hello on [social media], or because he was angry with [Mr D].

1. In the applicant’s narrative during a second trip to Bangladesh between [February] and [March] 2013 he met with [Mr D]. At my hearing he said that within a couple of days of his arrival in Dhaka he picked [Mr D] up from [Mr D]’s home, they walked around the area, and then they went together to Noakhali. When I asked whether they had just walked around [Mr D]’s home area of Shyampur, he replied that they had gone to other areas and had a restaurant meal. When I queried where the restaurant was located he said he could not remember. When I pointed out he had previously said they met at a restaurant in Gulshan, he replied he and [Mr D] and other friends had gone to a Gulshan restaurant for his birthday celebration on [date] March which was the same day he flew out of Bangladesh, and he confirmed this evidence after I summarised it. After further questions the applicant stated he met [Mr D] [in] February; they had a meal in a normal restaurant not in Gulshan; after that they went to Noakhali; then they had celebrated his birthday on [date]  March in a restaurant situated in Gulshan; there had been two different restaurants. When I pointed out that in Member 1’s hearing he had said they met at the restaurant in Gulshan and this was different to what he said today, he did not comment. In sum, the applicant’s changeable evidence about where he and [Mr D] met and what they did together in Dhaka raises concerns with his story and evidence, particularly as in his narrative this was such a significant occurrence in his life just a few years ago.  

2. In the applicant’s narrative, after meeting [Mr D] for the first time they travelled by bus from Dhaka to have a tryst in a hotel in Noakhali. At my hearing he particularised three reasons for the travel to Noakhali for their tryst: because he had been born there; there was a cheap hotel there; and to hide the liaison from his family. However, elements of the applicant’s narrative and evidence about the trip to Noakhali raise concerns:

   ·When I queried wouldn’t people in Noakhali remember his family if the family originated from there as he claimed, he replied Noakhali is a big area and they stayed in the other part. However, his explanation that they stayed in the part of Noakhali where his family did not come from was not consistent with his stated reason that he returned to Noakhali where he had been born.

   ·At the hearing I discussed how Dhaka is one of the world’s mega cities and google maps[1] shows that Dhaka was a 3-4 hour drive from Noakhali.  When I indicated I had difficulty accepting they drove such a distance so that the family would not find out, he replied that the hotel they booked was very cheap and he used to know the people of that hotel and that is why they went there. I then pointed out that if he used to know the hotel people they would recognise him and so would be a reason he would not go to that hotel with [Mr D]. He then replied that actually he had told a friend to book a cheap hotel in Noakhali and the friend booked that hotel. In sum, as I pointed out to him his evidence changed in significant detail as I examined it.

   ·At the hearing I pointed out that a general google search shows a range of hotels and prices in Dhaka and while he says they went to Noakhali because the hotel was cheap, there are plenty of cheap hotels in Dhaka. As well, he said they went to Noakhali so that his family did not find out but he would have been unknown in most of Dhaka which was vast. He replied that they went from Dhaka to Noakhali for the cheap hotel and as he had been born there he knew the area. Nonetheless, his stated reasons for going to Noakhali for the tryst with [Mr D] are not persuasive: the chance of him being recognised in the former home district of Noakhali was greater than if he stayed in vast Dhaka where there would have been a choice of cheap hotels.

   [1] [>

   In the applicant’s narrative, he and [Mr D] were caught in the act in the hotel room by a housekeeper, who then told the manager, and the manager then called some Muslim fundamentalist people- who he said may have been Jamaat-e-Islami activists- who attacked them with hockey sticks and stones inside the hotel. However, elements of the applicant’s narrative about this attack in the hotel cause me concern. At the hearing I queried why the manager would tell such activists as they could have damaged the hotel and given it a bad reputation. He replied their thinking is different in Bangladesh and the manager just did that. I pointed out that I had sighted the photos of his toes and what they showed could have occurred from any number of ways. I queried that he did not have enough time to pack and leave the hotel before the activists had arrived, and he merely replied that up to 12 activists came to the hotel and he was knocked unconscious. In the applicant’s narrative, he regained consciousness in hospital, however, he gave no details of how this happened. When I queried who took him to hospital he replied he did not know as he was unconscious, and when I asked whether he asked the staff he merely replied they had said it was unidentified people. He then gave unconvincing evidence when I asked questions about [Mr D]. I queried what happened to [Mr D] and the applicant’s evidence was that he did not know anything about [Mr D] after that or his location; he did not know what happened to [Mr D]; he did not look for [Mr D]; [Mr D] did not look for him. When I asked why he did not phone [Mr D] from hospital he gave changeable evidence as I then pointed out: he at first replied because his phone was not working and then added someone had taken it, and when I queried why he did not use another phone he replied how could he phone as he was in a hospital bed, before saying he did phone once but could not reach [Mr D]. When I again queried whether he found out what happened to [Mr D] and why he just disappeared, the applicant then said that actually he found out [Mr D] was alright at the time, and this was through [social media] after the applicant had returned home in Dhaka. When I asked whether [Mr D] said why he did not go to the hospital to see the applicant, the applicant replied [Mr D] did not say other than saying he had also been injured. When I asked why he did not ask [Mr D], he said in fact he had asked but [Mr D] would not explain and so the applicant became angry and did not keep in touch with or contact [Mr D] again. When I asked whether he had any other contact with [Mr D] after that, he replied that he had no other contact with [Mr D] after that. But as I then put to the applicant- and he did not reply- earlier he had said for his birthday he had gone to a restaurant in Gulshan with [Mr D] and other friends and that this was the day he left Bangladesh and this inconsistent story might raise concerns in my mind with his credibility as a witness and with his story.

3. I note that in the application the applicant stated that he had been beaten by [Muslims] on several occasions, but at Member 1’s hearing stated this was incorrect and he had only been beaten the one time in Noakhali, and at my hearing he only spoke of one beating.

4. In sum, I find unconvincing the applicant’s narrative and evidence about his friendship with [Mr D] and the tryst they had in Noakhali. It is difficult to accept that having been attacked with [Mr D] in the hotel he regained consciousness in hospital but has no idea how he got there beyond the explanation that unidentified people brought him. In the applicant’s narrative [Mr D] just disappeared after the hotel attack, and it was only as I queried what had happened to [Mr D] that the applicant gave changeable evidence about whether he tried to phone [Mr D] and he then said in fact he did know that [Mr D] had been injured. As well, his evidence concerning whether he saw [Mr D] again after Noakhali (earlier in the hearing saying [Mr D] went to his birthday celebration but later saying he had no personal contact) is a significant inconsistency that raises strong concerns with his narrative and evidence. 

5. In light of my foregoing discussion and findings I disbelieve the applicant’s entire story about having a friendship with a homosexual man in Dhaka named [Mr D]. I do not accept they formed a friendship on [social media]. I do not accept that they met in Dhaka on [date] February 2013 and then travelled by bus together to Noakhali, or that they had a tryst in a hotel there, or that they were caught in the act by a hotel worker. I do not accept that the applicant had toes injured and was beaten unconscious by anyone including Muslim fundamentalists, Jamaat-e-Islami activists, Chhatra Shibir activists, or their agents. I do not accept he was taken to hospital. Nor do I accept any of the claims that flowed from this narrative: that a few days later Islamic activists visited the family home and threatened to kill the applicant; and so the father told him to leave home; and he then stayed with friends. I do not accept the applicant came to the adverse attention of anyone in Bangladesh for the reasons he claims including people in Noakhali, Muslim fundamentalists, Jamaat-e-Islami activists, Chhatra Shibir activists, or their agents. I do not accept that his family rejected him at this time. I consider the applicant did not seek to leave Bangladesh earlier than his birthday on [date] March, and then had a birthday celebration at a restaurant, because he was not in fear of anyone. I find that the applicant fabricated his narrative and evidence concerning [Mr D] for the purposes of this refugee matter and that he is not a witness of truth.

His activities after he returned to Australia

1. In the applicant’s narrative, he had a non-sexual friendship with a man named [Mr E], and they went one time in November/December 2013 to the gay [hotel/bar] on [location], but he was identified and his parents found out and this was a significant reason for the family stopping all contact. At my hearing he stated he had previously visited [the location] but just as a tourist and had not been to [the] hotel before. At my hearing he also claimed that a former Bengali flatmate who worked [there] saw him and informed the flatmate’s parents who then told the applicant’s parents. But as I pointed out, that is quite different to what he said at Member 1’s hearing where he did not mention a former flatmate and indeed had speculated Muslim fundamentalist or Hindu [workers] at the hotel had identified him. As I pointed out, Member 1 had indicated it was unlikely that he had been recognised by someone who knew him and his family in Bangladesh and that a report got back to the family; and his new claim may explain that but does not explain why he did not mention it before. The applicant replied that the [worker] saw him and he had not wanted to mention the [worker]’s name to Member 1. But as I pointed out he had told me the story about the former flatmate without giving a name, and so I reject his explanation for the lateness of the claim.

2. In sum, I find unconvincing the applicant’s story about being identified by a Bangladeshi when he once visited a gay bar in [City 1]. I disbelieve that a Bangladeshi who worked [at] the gay bar happened to recognise the applicant, and then reported this back to parents who knew the applicant’s family and so were able to report the visit to the applicant’s parents. I do not accept the applicant’s new claim that in fact a former flatmate recognised him at the bar and this late embellishment raises further strong concerns with his evidence. I find that the applicant fabricated his narrative and evidence concerning a visit to a gay bar with a man named [Mr E] and this reinforces my finding that the applicant is not a witness of truth.

Other evidence that might show the applicant’s sexual orientation

1. At my hearing I pointed out that he claimed the occurrences we had discussed at the hearing showed he was a homosexual man, but if I did not accept these claims or claimed occurrences, it may make me have concerns with his main claim to be a homosexual. I asked whether there was anything else he wanted to say that would be evidence he is homosexual. However, he stated he did not have any other proof or evidence. Despite ample opportunity he did not mention [Mr E] or say whether he was still in contact with [Mr E].

2. Nonetheless, I made further enquiries with him. In answer to my queries he indicated he did not know if the detention centre knew about his claim as they had not asked him anything about that; and he did not consult a counsellor at the centre. Although in his application he said [Mr F] was a friend in Australia, when I asked whether he still knew [Mr F] the applicant replied that he had no contact with [Mr F] at all.

3. When I asked whether he still had a [social media] account he said he did. But when I asked whether there was anything on his [social media] account that might suggest he is homosexual, he said that there used to be, but actually his account had been blocked after he had been released from jail. I then pointed out he had just said he had a [social media] account, and he replied he opened a new account. When I asked whether there was anything on the new account that might suggest he is homosexual he at first spoke of the centre having strict rules and blocking sites. When I indicated I was not asking about sexual sites but as an example whether there were any comments with friends talking about being gay, he said no. When I asked if he had any photos or photos of him with [Mr D] not necessarily of a sexual nature that might show they had more than a friendship, he said he did not.

4. When I asked whether he had received any emails from his [family members] discussing his sexuality, he said that sometimes he contacts his mother but when this topic arises the mother hangs up. He confirmed that he has contact with the mother as she contacts him secretly. When I pointed out that at the start of the hearing he had said he had had no contact with his family for 3 to 4 years, he replied actually he calls the mother just to hear her voice. I find that the applicant’s changeable evidence about whether he had any contact with his family raises strong concerns with his evidence and credibility as a witness.

5. Despite arriving in Australia [in] April 2009, and having returned here after visits to Bangladesh in 2011 and 2013, and despite his prison term from 2014 to 2015, he first claimed he was a homosexual man in the Protection visa application form lodged [in] June 2015. As I pointed out at my hearing, it was a very long time before he said he was homosexual and this happened after he was detained by Immigration, but he did not comment. At Member 1’s hearing he said he had not needed a Protection visa any earlier because he planned to apply for permanent [residence], and as well, it was only after he came to the IDC that he came to know he could apply for a Protection visa. Also at my hearing I indicated the [State 1] Court sentencing notes of [July] 2014 showed no submissions had been put to the Judge about the applicant’s physical or mental conditions and the Judge said “I can only assume there is nothing which I need to take into account”. I put to the applicant that it seemed no claims were made to the Judge that he was homosexual, and he agreed. In sum, there is no evidence that the applicant had mentioned his sexual orientation in any of his dealings with Australian authorities/Courts from 2009 until [June] 2015.

Conclusion- his claim to be a homosexual man

1. A main claim of the applicant is that he is a man who is attracted to men and as he said, is gay. He claims that a few occurrences show he is a gay man, and these are the friendship and tryst with [Mr D] in February 2013 and the time he once visited a gay bar with a friend named [Mr E] and this got back to his family. However, as my foregoing discussion shows, I disbelieve all of this. I disbelieve the applicant’s entire story about having a friendship with a homosexual man in Dhaka named [Mr D]. I do not accept that they met in Dhaka [in] February 2013 and then travelled by bus together to Noakhali, or that they had a tryst in a hotel there and were discovered, or that any of the other events that flowed from this narrative took place. As well, I find unconvincing and reject the applicant’s story about being identified by a Bangladeshi when he once visited a gay bar in [City 1]. I do not accept that he visited the gay bar as he claims.

2. At Member 1’s hearing the applicant stated he lacked the courage to go to a gay club in [City 1] before November/December 2013. Other than this claim to have gone one time to a gay bar which I do not accept, he has not claimed to have explored his sexuality despite living in Australia, a liberal country, and living well away from the family for a number of years. I note his explanation that the parents agreed to send him to Australia in April 2009 merely because he agreed to forget about being gay, however, as my foregoing discussion shows I find this explanation unpersuasive. In addition, his narrative about organising a gay tryst when he returned to Bangladesh in February 2013 does not support any contention that he was suppressing his sexuality for reasons including shame or social stigma or his claimed undertaking to the father to forget about being gay.

3. Other than the claimed occurrences that I do not accept, there is no information or material before the Tribunal that supports the applicant’s claim that he is a man who is attracted to men and is gay. As my foregoing discussion shows, I find the applicant is not a witness of truth. In sum, I am not satisfied that the applicant is or will be perceived to be a homosexual/gay man. I do not accept that his family or anyone in Bangladesh perceives him to be a homosexual. I consider he has fabricated this claim for the purposes of his protection visa application.

4. Having considered the claims and evidence, I do not accept his claims that:

   ·His sexual orientation is homosexual. He fears that he will be harmed in Bangladesh as homosexuality is against the law.

   ·Some people in Bangladesh know he is a homosexual. This is because when he last visited Bangladesh in February-March 2013 he went with a friend to a hotel in Noakhali to have sex and they were caught in the act. Local people and Muslim fundamentalists became involved and attacked him in the hotel, injuring two toes and knocking him unconscious. After he regained consciousness in a hospital he returned to Dhaka.

   ·He returned to the family home in Dhaka but after a couple of days he had to go into hiding to a friend’s place because Muslim fundamentalists searched for him and told the parents they wanted to kill him.

   ·When he returned to Australia he went one time with a male friend to a gay bar on [a] Street in [City 1] and there he was promptly identified by a Bangladeshi and this got back to the parents.

5. I do not accept that he is a member of a particular social group of homosexuals in Bangladesh. I do not accept that he faces persecution for reason of actual or perceived membership of the particular social group of homosexuals in Bangladesh now and in the reasonably foreseeable future.

The threat by [Mr A]

1. As well, the applicant claims to fear fatal retribution from [Mr A] if he returns to Bangladesh. The applicant’s claimed fear arises from the criminal proceedings in [State 1] in which he gave information about the criminal activities of [Mr A] to [Agency 1]. The applicant was arrested [in] July 2013, charged with [criminal offences] [in] July 2013, and shortly thereafter [Mr A] fled Australia. At my hearing the applicant said he had been released on bail and [in] January 2014 he received the threatening email sent by [Mr A]. After my hearing the applicant produced to the Tribunal the email sent by [Mr A] [in] January 2014. A translation of the two line email is shown in [State 1] District Court [Judge]’s sentencing remarks on [date]July 2014:

   What statement you give to police brother [name] says to me you say my name and his name. I can’t come back in Australia because of you. Change the police statement otherwise if you back to Bangladesh bad things wait for you.

1. At my hearing I discussed the Court sentencing remarks of [July] 2014 and the key points I had noted and asked the applicant what remarks of the Judge he wanted me to have particular regard to. He replied that he did not wish to mention anything about the report, except that he got a threat through an email and [Mr A] will kill him in Bangladesh.

2. I accept that the claimed threat by [Mr A] is corroborated by the email the applicant produced and, as discussed in the sentencing notes, by the conduct of the applicant in assisting the police after his arrest. I accept the applicant assisted the police by providing information in relation to [Mr A], albeit the Crown submitted the offer of assistance had been limited. I accept that a warrant for [Mr A]’s arrest was sworn and so he was implicated in the crimes but he had departed Australia and so was never arrested. I accept that the Court considered the applicant was at the end of the chain of the illegal behaviour and that [Mr A] was allegedly at the top of the chain. I also accept that the applicant received in January 2014 an email sent by [Mr A] ostensibly from Bangladesh that said “bad things” wait for him in Bangladesh. I note that [name] was a reference to [Mr G], but the applicant has not claimed that he fears harm at the hands of [Mr G] and at my hearing said he has no contact with that person. In sum, I cannot discount the possibility, as the applicant claims, that [Mr A] blamed the applicant for giving evidence to the police about the criminal scheme and about [Mr A]’s part in the scheme, and so sought to get the applicant to change his evidence by making the threat.

3. At my hearing when I asked the applicant whether he had heard any more from [Mr A], he first gave confusing evidence about [Mr A] going to the family home in 2012. When I asked whether [Mr A] went to the family home after his arrest ([July] 2013), he gave vague evidence that he was not sure but had heard from family and friends that [Mr A] was looking for him, and he added this was after the email. He said he is still in contact with a friend in [Dhaka], and (as he said later in the hearing) the mother, but has not claimed they have told him that [Mr A] has looked for him. In sum, I find unpersuasive his vague evidence about how [Mr A] was searching for him and how family and friends knew this.

4. When I put to him that [Mr A]’s lack of further efforts to look for him may show [Mr A] has no current interest in him after so long, he replied he does not have any contact with family or friends in Bangladesh and implied therefore he does not know if [Mr A] has looked for him in his home area. However, this evidence was contradicted by his admission at the end of the hearing that he is in ongoing phone contact with his mother. I consider that he tailored his evidence as I put to him my concerns. In light of the contact he has with the mother, I do not accept his contention that he cannot know whether [Mr A] has approached the family in recent years. In sum, in light of the applicant’s vague and untruthful evidence about [Mr A], I do not accept that [Mr A] had looked for the applicant or approached the family at any time after the email of [January] 2014.

5. The single vague threat [Mr A] made in an email has not been repeated in over three and a half years. [Mr A] had the applicant’s email address and so could have sent more email threats but he has not. Nor has the applicant claimed, despite ample opportunity, that [Mr A] has sent threats or warnings to the family in Dhaka.

6. At my hearing the applicant’s evidence was that [Mr A] was wealthy and had good political connections but when I asked what political party he said he did not know. Later he suggested the political connections might be with the Awami League but he added he is not sure. I consider that the applicant does not have a lack of knowledge of Bangladesh politics as he later spoke of the Jamaat-e-Islami party and previously of their student wing Chhatra Shibir, and so his vague evidence about what party [Mr A] has connections with raises concerns.

7. When I queried how he knew [Mr A] and family had political connections and contact with the police he merely repeated that [Mr A] was wealthy and has such connections and would bribe police. The applicant’s scant reasons for why he believed [Mr A] had influential political connections lead me to consider there was no basis to his view and it was mere speculation. He claimed [Mr A] with his good political connections would then pay police to search for him anywhere in Bangladesh, but as I pointed out that is just speculation. I consider his vague evidence does not support his claim that [Mr A] had good political connections, and I do not accept the applicant’s speculation that [Mr A] will know when he returns to Bangladesh or will be able to locate him anywhere in the country through police bribery or any other way.

8. He claimed [Mr A] would murder him, but as I pointed out, people may threaten someone but don’t have the personality to actually murder. I considered the Court sentencing notes of [July] 2014, however they show the criminal acts undertaken by the applicant and [Mr A] were of [a certain crime] and not of a violent nature. When I asked why he believed [Mr A] would take such an extreme action he did not give a reason other than repeating how he reported [Mr A] to the police. Despite ample opportunity, the applicant did not mention any characteristic or any past actions of [Mr A] he was aware of that led him to believe [Mr A] would actually go beyond a mere written threat and undertake violence and/or murder.  

9. Having considered the claims and evidence, I accept that:

   ·He gave information about the criminal activities of [Mr A] to [Agency 1]. [Mr A] fled Australia and [in] January 2014 sent a threatening email to the applicant.

10. But I do not accept the applicant’s speculation that the single threat by [Mr A] made several years ago means that [Mr A] will seek him in Bangladesh and seek to harm him. I find on the material before the Tribunal that there is no more than a remote chance that the applicant faces serious harm in Bangladesh because of [Mr A].

Conclusion

1. Having considered the claims and evidence I find that the applicant is a Bangladesh national. He is a man in his [age] from Dhaka, one of the world’s mega-cities. I find he is unmarried and that he has parents and siblings and other relatives who continue to live in Dhaka. I find that the applicant came to Australia [in] April 2009 and returned to Bangladesh for quick visits in July-August 2011 and February-March 2013. I find that in July 2013 he was charged with[offences] and subsequently convicted and sentenced to imprisonment that he served from [June] 2014 to [June] 2015. When he was released he was Immigration detained and he has been in [IDC] since [June] 2015. He has now been in Australia for more than 8 years.

2. But in light of the foregoing credibility findings I do not accept any part of the applicant’s narrative concerning why he feared to remain in Bangladesh and why he fears to return. I do not accept that he is a member of a particular social group of homosexuals in Bangladesh. I do not accept that he faces persecution for reason of actual or perceived membership of the particular social group of homosexuals in Bangladesh now and in the reasonably foreseeable future. I do not accept the applicant’s speculation that the single threat by [Mr A] made several years ago means that [Mr A] will seek him in Bangladesh and seek to harm him. I find on the material before the Tribunal that there is no more than a remote chance that the applicant faces serious harm in Bangladesh because of [Mr A].

3. As I discussed at the hearing, he is a Bangladesh national who departed Bangladesh legally with a valid Bangladesh passport valid to [2018] and so will be able to return to Bangladesh without difficulty. Even if his passport expires before his travel, he is a Bangladesh national with documentary evidence and so will have no great difficulties getting a travel document to return. The applicant claims that as a convicted criminal he fears he will be arrested and questioned by the authorities on his return to Bangladesh. I acknowledge that if he returns to Bangladesh as an involuntary returnee he will come to the attention of the Bangladesh authorities at the airport for that reason. But as I discussed at the hearing, key points of the DFAT report[2] show this will not cause him to face adverse attention. My discussion encompassed the following advice:

   5.21 Bangladesh accepts both voluntary and involuntary returnees. IOM’s Assisted Voluntary Returns and Repatriation (AVRR) program provides assistance to Bangladeshi returnees in cooperation with the returning country and the Government of Bangladesh. DFAT understands that recent returnees from the United Kingdom have not been subjected to any adverse attention by the authorities or others. Although Bangladesh agreed to accept a number of Rohingya returnees during the Andaman Sea crisis in May 2015, Bangladeshi authorities have generally insisted on verifying the identity and Bangladeshi citizenship of returnees (including Rohingyas) before authorising their return.

   5.22 DFAT assesses that most returnees, including asylum seekers, are not subjected to adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia.

   [2] Department of Foreign Affairs and Trade, DFAT Country Information Report Bangladesh 5 July 2016

4. As I pointed out, the report spoke of high profile individuals who had engaged in political activities outside Bangladesh but that was not his situation. As well, there is not more than a remote chance that the Bangladesh authorities would become aware of the applicant’s criminal conviction and sentence but rather, would only be aware that he had overstayed in Australia and was being deported. Regardless, the country information does not lead me to consider that the Bangladesh authorities would have any adverse interest in the applicant because of a [conviction] in Australia that concerned an offence in Australia. In sum, I find that on his return to Bangladesh he will likely be questioned at the airport, but otherwise, the Bangladesh authorities will not have an adverse interest in him for the single reason or cumulative reasons of his involuntary return as a failed asylum seeker who had overstayed in Australia and who had served a prison sentence for a [conviction].

5. When I consider all of the applicant’s personal circumstances together and all of my findings about his narrative and evidence together, I find unconvincing and do not accept his claims that in Bangladesh he faces harm from the community, Muslim fundamentalists, Jamaat-e-Islami activists or Chhatra Shibir activists or political agents, the authorities, or any other agents. As I do not accept that he is homosexual I do not accept he is estranged from his family for that reason. As well, in light of my findings that the applicant is not a witness of truth, I am not satisfied that he is estranged from his family because of his criminal conduct in Australia. Regardless, he has not claimed despite ample opportunity that he has been threatened by the family because of his conduct in Australia and any estrangement he may face is not serious harm amounting to persecution for a reason set out in s.5J(1). Having considered the claims and evidence I find there is not a real chance of serious harm amounting to persecution to him now and in the reasonably foreseeable future in residing in Dhaka or anywhere else in Bangladesh for any reason set out in s.5J(1) either when looked at individually or cumulatively.

Refugee criterion

1. In light of the above assessment, the Tribunal finds that in Bangladesh the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for the reasons he claims. The Tribunal finds that in Bangladesh the applicant does not face a real chance of serious harm amounting to persecution now and in the reasonably foreseeable future, for one or more of the five reasons set out in s.5J(1) of the Act either when looked at individually or cumulatively.

2. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary protection

1. I considered whether on the evidence before me, 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.

2. I accept the applicant will need to re-adjust to Bangladesh on return. However, on the material before the Tribunal I find that he will most likely return to the family home in Dhaka where his family continue to reside. I find that he does not face significant harm from anyone in Bangladesh for the reasons he claims. I do not accept that there is a real risk the authorities will have an adverse interest in him for any reason on his return. I do not accept the applicant’s speculation that the single threat by [Mr A] made several years ago means that [Mr A] will seek him in Bangladesh and seek to harm him. I find on the material before the Tribunal that there is not a real risk that the applicant will suffer significant harm in Bangladesh because of [Mr A]. In sum, I find there is no real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. Nor am I satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. I am not satisfied the applicant will be subject to significant harm for any reason if he is removed/returns to Bangladesh.

Conclusion

1. 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).

2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). However, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

DECISION

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

C. Packer
Member

ATTACHMENT A – RELEVANT LAW

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.

Refugee

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

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.

Complementary protection

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 a protection 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 the applicant 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’).

‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Mandatory considerations

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