1711895 (Refugee)

[2019] AATA 5964

1711895 (Refugee) [2019] AATA 5964 (12 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711895

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Christopher Smolicz

DATE:12 August 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 12 August 2019 at 12:40pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh National Party – Chhatra Dal – Jatiyatabadi Jubo Dal – fears harm from Awami League – credibility issues – lack of knowledge about the BNP – inconsistent evidence – bogus documents – delay in protection visa application – complementary protection – personal conflict with an individual – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection 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, applied for the visa on 12 June 2014, and the delegate refused to grant the visa on 26 May 2017.

3. The applicant appeared before the Tribunal on 17 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Dr [A].

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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, the applicant 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.

6. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. 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’).

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT Country Information Report Bangladesh, 2 February 2018) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

10. The issue in this case is whether the applicant meets the refugee criteria or comes within Australia’s complementary protection obligations because of his political opinion.  

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

    Background

12. The applicant is a [age] year old single male. He was born in Chittagong City, Bangladesh. He is a Sunni Muslim. He attended [named school] ([year]-[year]). He completed a [qualification] at [University 1] ([year]-[year]). He subsequently worked full time as [Occupation 1] in Chittagong City. He arrived in Australia [in] June 2013 as the holder of a temporary [visa].

13. Since arriving in Australia the applicant has married an Australian permanent resident. He has a [sibling] who lives in Australia ([name]) and is an Australian permanent resident. His [sibling] did not attend the hearing to give evidence.

14. The Tribunal finds the applicant is a citizen of Bangladesh. The Tribunal has assessed the applicant’s claims against Bangladesh as the country of reference/receiving country.

    Summary of substantive claims

15. The applicant describes himself as a Bangladesh National Party (BNP) activist and supporter.

16. The applicant claims his father is a [Occupation 2] and his family were not involved in politics in Bangladesh. However when he was at university his friends inspired him to get involved in politics.  

17. During the 2008 national elections he became involved with Chhatra Dal (student wing) of the BNP, and in 2011 he joined the Jatiyatabadi Jubo Dal (youth wing) of the BNP. He claims his political views ostracised him from many of his university friends.

18. He claims to have participated in anti-government campaigns organised by the BNP.

19. He took part in the following political activities: [specified].

20. His political activities have brought him to the attention of the Awami League (AL) leaders, its supporters and also the authorities. He also fears vengeance from a former university friend ([Mr B]) who was an AL activist.

21. He claims false allegations were made against him claiming that he was involved with the activities of Islami Chhatra Shibir (Shibir) because he had some friends who were members at his Islamic secondary school. The allegations put his life in danger.

22. He has been the target of the physical attacks set out below because of his political activities.

23. [In] August 2012 he participated in a [BNP] demonstration in [Thana 1]. A group of AL supporters attacked the BNP supports and he was severely injured and taken to a local clinic. He was treated for a few days and released.

24. In support of the evidence the applicant provided:

    ·     A letter from [Medical Clinic 1] dated 5 February 2015 stating that he was admitted to the clinic [in] August 2011 [to] September 2012 due to injury caused by a physical assault and “[t]he injury was superficial with no other major physical disability or deformities.”

    ·     Treatment notes and a discharge certificate.

    ·     X-ray report , biochemical profile, haematological report and an electrolytes analysis.

25. [In] October 2012 he was coming home work when a group of Awami activists (including [Mr B]) stopped him and started to assault him. He shouted for help and local people came to his aid and saved him. He was unable to attend work for more than one week following the assault. He provided medical notes from [Medical Clinic 2] in support.

26. [In] February 2013 he was travelling home at night [after] attending a meeting in the town centre when unidentified people threw a petrol bomb towards him. The bomb did not hit him and he was able to escape unharmed. He believes that AL activists were responsible although he did not see the attackers and nothing was said to him.

27. He has also received threats on his mobile telephone.

28. Due to the threats he had to flee Bangladesh and travel to Australia in 2013. His family have told him that the threats have continued since he has travelled to Australia.

29. Law and order has deteriorated significantly in Bangladesh. Robbery, extortion, terrorism, rapes and killings are become more frequent. Citizens are deprived of their civil rights and democracy does not prevail. Corruption in government interferes with every sphere of administration.

30. The authorities always act against the Jamat-e-Islami, Shibir and BNP activists. When AL is the ruling party, many BNP leaders and activists are killed by Rapid Action Battalions. The judiciary is biased and justice is remote in Bangladesh. BNP and Shibir activists are never protected by the authorities and therefore because of his political profile he will not be able to seek protection from the authorities in Bangladesh.

31. He provided the following documents in support of his application:

    ·     Undated copy of a letter purporting to be issued by the [Senior Official] of the BNP claiming the applicant was an “active member of the Chattra Do [Chhatra Dal (students wing)] since January 2008 and later joined the Jbo Dol Pahartali [Jubo Dal (youth wing)] in August 2011”.

    ·     Affidavit from [(the applicant’s father)] dated 10 June 2014.

    Delegate’s decision

32. The delegate was not satisfied that the applicant’s claims and evidence were credible. The applicant provided the Tribunal with submissions addressing the delegate’s concerns about his evidence. 

33. The applicant took part in a protection interview with the Departmental delegate on 2 September 2015. He provided the Tribunal with a copy of the delegate’s decision, which provides a summary of the evidence he gave during the interview.

34. In particular the Tribunal notes that during his protection interview he was questioned about being a victim of targeted attacks in 2012 by members of the AL.

35. In relation to [the] August 2012 incident he stated that about [number of] AL men attacked a group of BNP supporters consisting of approximately the same number. He did not physically fight back. He stated that he was just one among many people who were injured in the brawl.

36. The applicant said that after he was released from hospital he became worried about his safety and he decided to quit his association with the BNP and stopped attending any political activities. Subsequently, after further questioning, the applicant claimed that he only stopped his association with the BNP for two months and then continued his association again because they promised to protect him.

37. During the interview the applicant said that he has problems with [Mr B]. He claimed [Mr B] belonged to the Student League Chhattra Dal. The applicant said that he had a dispute with [Mr B] involving a female student and [Mr B] was vindictive and his problems with [Mr B] were personal.

38. He said that he was an ordinary member of the BNP and he had never held any position in the party.

    Tribunal hearing

39. The Tribunal did not find the applicant to be a credible witness. The Tribunal finds his evidence was vague, lacking in detail and inconsistent.  The Tribunal’s reasons are detailed below.  

40. The Tribunal questioned the applicant about his role and position in the BNP. The Tribunal found the applicant’s answers vague and evasive. The Tribunal did not find the applicant’s evidence consistent with the applicant’s statement of claim where he described himself as an active supporter who has been involved with the party since his university studies.  For example, the Tribunal asked the applicant if he knew what political parties the BNP was in political alliance with during the 2008 elections. The applicant could not answer the question. He did not know how many seats the BNP won in Chittagong, the applicant’s electorate. The Tribunal found the applicant’s lack of knowledge about the BNP concerning in light of the applicant’s claims that he was actively involved in politics during this time. Reports confirm that the BNP were part of a four-party alliance and lost the election that the AL convincingly won.[1]

    [1] >

    The Tribunal noted that the applicant has now been in Australia for six years and was not in Bangladesh during the 2014 or 2018 general elections. The Tribunal asked the applicant why he thought he would face harm if he was to return to Bangladesh in the reasonably foreseeable future. The applicant claimed that people in Bangladesh thought he was the “head of everything” and was controlling everything behind the scenes. The Tribunal finds the applicant’s evidence inconsistent with the evidence he gave during his protection interview, detailed in the delegate’s decision, where he said he was an ordinary member and did not have an active profile, did not take part in any violence and had never held any position within the BNP. The Tribunal notes that according to information in his protection visa application he worked as a full time [Occupation 1] after he finished his studies in 2011 and held no elected or official position within the BNP. In response to the Tribunal’s concerns, the applicant said that unlike elected members of parliament he worked in the field and that’s why he was targeted.

41. The Tribunal questioned the applicant about the injuries he claims to have sustained during the attack [in] August 2012. The applicant said he was severely beaten [and] was knocked unconscious for about three to four hours and woke up in hospital. He could not explain to the Tribunal the precise nature of his injuries but said he was hit on his legs, hands, face, head and all over the body and had a fever. He was given “pain killers and ointment”. When asked what the treating doctor told him about his injuries the applicant said he was asleep for most of the time and did not speak to the doctor. When asked if he spoke to the doctor when he gained consciousness the applicant said the doctor only spoke to his father and said he had a possible brain haemorrhage.

42. The Tribunal told the applicant his evidence about his injuries was inconsistent with the letter dated 5 February 2015 which said his injuries were “superficial”.

43. The Tribunal questioned the applicant about the provenance of the letter dated 5 February 2015. The applicant maintained the letter was the original and that his father obtained the letter and it was delivered to him in Australia by his [sibling]. 

44. The Tribunal was able to inspect the letter during the hearing and noted that it was a colour photocopy and the signature was a copy but the dates at the top of the letter appeared to have been written in black ink on the copy. The applicant was unable to provide an explanation for the anomalies appearing on the letter and maintained it was an original. The Tribunal is concerned about the anomalies appearing in the letter and the inconsistent evidence regarding the applicant’s injuries. The Tribunal does not accept the letter and the medical records are genuine. The Tribunal finds that the applicant did not sustain injuries during a politically motivated attack [in] August 2012.

45. The applicant requested that the Tribunal take evidence from Bangladesh by telephone from Dr [A] (his [sibling]) and a friend called [Mr C]. The Tribunal explained to the applicant that it had some concerns about taking evidence from witnesses in circumstances where he had not provided any proof of their identity or signed statutory declarations.

46. The applicant said that the witness [Mr C] was no longer available to give evidence but asked that the Tribunal speak to his [sibling] Dr [A]. The Tribunal dialled the telephoned number provided by the applicant during the hearing. In an attempt to establish the witness’s identity the Tribunal asked the witness a number of questions. The witness claimed he was born on [date]. The witness did not know the review applicant’s date of birth and thought he was born either in [year 1] or [year 2]. He was not sure when the review applicant travelled to Australia and thought it was towards the end of 2012. The Tribunal notes the applicant was born on [date in year 3] and arrived in Australia [in] June 2013. The Tribunal told the applicant that it was concerned about discrepancies in the evidence and it was not satisfied about the identity of the witness. When asked to provide the address of the applicant’s family home in Bangladesh, the witness provided a different address than the address provided by the applicant in his birth certificate and in a number of other documents, including the hearing response. The Tribunal finds it very concerning that the witness who claims to be the applicant’s [sibling] did not know the applicant’s home address, date of birth or when he travelled to Australia. The Tribunal did not find the witness to be credible.

47. The applicant referred the Tribunal to three Bangladesh telephone numbers, which he claims belong to political leaders from the AL who threatened him before he came to Australia. The applicant claimed this evidence would prove that he has been threatened and his life is in danger. The applicant requested that the Tribunal should access the “call history (recordings)” of the numbers and this was his strongest evidence of the threats he experienced in Bangladesh. The Tribunal notes that the applicant provided no details about the calls, what was spoken, when the calls were made or who made the calls. The Tribunal explained to the applicant that it was not possible to access the recordings of telephone calls made in Bangladesh unless he had some reason to believe there were warrants issued to the police or other investigative agencies relating to the numbers. The applicant was unable to respond to the Tribunal’s concerns and claimed that he came from a backward country and did not appreciate what was possible in Australia.

48. In assessing the applicant’s claims for protection the Tribunals is also concerned about the time it took the applicant to apply for a protection visa since he arrived in Australia. The Tribunal observed that the applicant arrived in Australia in June 2013 and waited 12 months before he applied for the protection visa. The applicant said he did not consider himself to be a person who needed to apply for protection because he was educated and came from a good family in Bangladesh. He was optimistic that the 2014 elections would bring about positive change and he could return to Bangladesh. The Tribunal notes that the AL won the 2014 elections, which were held in January 2014. The elections were reported to be extremely violent with many reported deaths associated with political violence.[2] The Tribunal would have expected the applicant to have sought asylum at the earliest possible opportunity after the outcome of the 2014 elections if he held a genuine subjective fear of harm because of his political opinion.

    Well-founded fear of persecution

    [2] DFAT reports that the January 2014 elections were the most violent in Bangladesh’s history, with months of politically motivated violence leaving hundreds of people dead and thousands injured: DFAT Country Information Report Bangladesh, 2 February 2018 [3.59], >

    For the reasons detailed above the Tribunal does not find the applicant’s evidence about his political activity in Bangladesh to be credible. His evidence was vague, lacking in detail and inconsistent. The Tribunal finds the applicant significantly embellished and exaggerated his evidence regarding his political activism in Bangladesh.

1. The Tribunal finds the applicant completed [studies] in the period 2006 to 2011 and obtained a [qualification]. He subsequently worked as a full time [Occupation 1] in Bangladesh. He travelled to Australia in May 2013 to visit his [sibling] who was already studying in Australia at the time. The Tribunal does not accept the applicant’s claims that he travelled to Australia because he experienced persecution in Bangladesh because of his political opinion.

2. The Tribunal does however accept that the applicant was an ordinary supporter of the BNP, which is the main opposition party to the ruling AL.

3. In assessing the applicant’s political profile in Bangladesh the Tribunal has had regard to DFAT’s country information report which provides the following information about political motivated violence in Bangladesh:

   DFAT assesses that under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges and travel bans. Active members of opposition political parties and auxiliary organisations … who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. This risk is elevated around times of heightened political tension, including elections. Ordinary members of opposition political parties and auxiliary organisations who do not engage in political activities and demonstrations face a low risk of arrest, although this may vary according to location and timing. [3]

   [3] DFAT Country Information Report Bangladesh 2 February 2018 [3.55]

4. The Tribunal does not accept the applicant’s evidence that he worked for the elections held in 2008 or 2012 or was involved in anti-government activities, [specified]. The Tribunal does not accept the applicant’s claims that “he would encourage local people to support us [BNP]” or that “People would get inspired by me as I was always against the wrong things done by the govt. As a result I became a well known person to my local area, university and also to Awami thugs.”[4]

   [4] Applicant’s written submission in response to the delegate’s finings provided to the Tribunal (p.3)

5. Having regard to the applicant’s profile as an ordinary member, the Tribunal does not accept the applicant was specifically targeted by AL thugs or authorities in Bangladesh. The Tribunal does not accept that his opponents were looking for him in March 2014. Specifically, the Tribunal does not accept the applicant’s claims that he was attacked and injured by AL supporters [in] August 2012 or [later in] October 2012. The Tribunal does not accept the applicant received threatening phone calls in Bangladesh. For the reasons detailed above, the Tribunal finds that the medical reports provided in support of this evidence are not genuine and the applicant’s evidence about his injuries was inconsistent. The Tribunal does not accept the applicant’s claim that he was the target of a petrol bomb on [in] February 2013 when he left a BNP meeting. The applicant said he did not see the attackers and nothing was said. Further, it seems inconsistent that the applicant would be attending a BNP meeting in circumstances where he previously claimed he ceased his political involvement after the August 2012 incident. To be clear, the Tribunal does not accept the incident occurred and finds the applicant has manufactured this evidence.

6. The Tribunal has also considered the affidavit provided by the applicant’s father in support of the claims for protection. The Tribunal finds the letter repeats the applicant’s claims and is self-serving and lacks objectivity. The Tribunal has also had regard to country information about the prevalence of fraudulent documents from Bangladesh.[5] Having regard to the country information and the Tribunal’s credibility findings detailed above, the Tribunal finds that the undated reference letter issued by the BNP is not genuine.  The Tribunal has given the letter no weight in light of the Tribunal’s findings above.

   [5] UK Home Office Country Policy and Information Note Bangladesh: Background information, including actors of protection and internal relocation January 2018 [13.2] >

   The Tribunal accepts that the applicant may have had a personal conflict with a person called [Mr B] at university. As detailed in the delegate’s decision, the applicant has provided inconsistent evidence about [Mr B]’s political background. He claims [Mr B] had powerful connections within the ruling party through his father who was with the AL. This evidence is inconsistent with the applicant’s earlier evidence that [Mr B]’s father was a communist and not an AL member. The Tribunal does not accept that [Mr B] targeted the applicant because of his political opinion or for any other reason as defined in Article 1 of the Convention. Looking to the reasonably foreseeable future, the Tribunal finds there is no real chance that [Mr B] would seek to harm the applicant because of an incident involving a female university student or his political opinion or any other reason. The Tribunal has further considered the applicant’s fear of [Mr B] under the complementary protection criterion.

7. In conclusion, the Tribunal does not accept the applicant was an active member of the Chhatra Dal since January 2008 or that he joined the Jubo Dal Pahartali in August 2011. The Tribunal does not accept that the applicant was a BNP activist and that he participated in anti-government campaigns organised by the BNP.  As a consequence, the Tribunal does not accept the applicant’s political activities brought him to the attention of the AL leaders, its supporters and also the authorities.

8. The Tribunal finds that the applicant departed Bangladesh six years ago. He has had no involvement in politics since he departed Bangladesh in May 2013. He did not take part in the 2014 and 2018 elections.  He is not a person of interest to the AL. Having regard to the country information and the Tribunal’s finding that the applicant is an ordinary supporter of the BNP who has not previously come to the adverse attention of AL thugs or the authorities, the Tribunal does not accept that there is a real chance the applicant will face serious harm if he returns to Bangladesh in the reasonably foreseeable future because of his political opinion. The Tribunal finds that the applicant’s fear of harm because of his political opinion is not well-founded.

   Complementary protection

9. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa), that being, whether, on the evidence, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh.

10. ‘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.

11. As detailed above, the Tribunal accepts the applicant may have had a friend at university called [Mr B]. The Tribunal accepts that their friendship ended because [Mr B] suspected that the applicant was seeking to befriend a female student that he liked. As detailed above, the Tribunal does not accept that [Mr B] was an AL activist and wanted to harm the applicant because of his political opinion. The Tribunal finds that the applicant’s dispute with [Mr B] dates back to the time they were in university in Bangladesh. The Tribunal finds that [Mr B] has not had any communication with the applicant since he departed Bangladesh. Looking to the reasonably foreseeable future, the Tribunal does not accept there is a real risk the applicant would face significant harm from [Mr B] if he was to return to Bangladesh.

12. Looking at the applicant’s claims individually and cumulatively, for the reasons that are detailed above, the Tribunal does not accept that the applicant faces a real risk of significant harm as a consequence of being removed from Australia to Bangladesh.

13. The Tribunal accepts the applicant’s concern that he will face some hardship returning to Bangladesh because of his long absence, the poor economic circumstances of Bangladesh and the general disregard for law and order. However, the Tribunal finds that these circumstances are circumstances faced by the population of the country generally and not faced by the applicant personally. As such, in accordance with s.36(2B)(c), there is taken not to be a real risk that the applicant will suffer significant harm on his return to Bangladesh.

14. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

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

16. 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 criteria in s.36(2).

    DECISION

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

    Christopher Smolicz
    Member