1711905 (Refugee)

1711905 (Refugee) [2020] AATA 5810 (10 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711905
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Nathan Goetz
DATE:10 December 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 December 2020 at 11:40am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – BNP member – threats from opposition party members – money laundering activities – health conditions – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
On 30 September 2015 the applicant was offshore and applied for a visitor visa. The applicant was granted this visa on 4 October 2015 and arrived in Australia [in] March 2016.
On 27 June 2016 the applicant applied for a protection visa. The applicant attended a delegate interview on 13 April 2017 to discuss his claims. On 12 May 2017 the delegate refused to grant the protection visa.
On 5 June 2017 the applicant applied to the Tribunal for a review of the refusal decision.
On 9 December 2020 the applicant appeared at the Tribunal to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Bengali languages. The applicant was not represented for the review application.
CRITERIA FOR A PROTECTION VISA
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.
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 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).
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.
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
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
Protection visa application form
The applicant identifies as [an age]-year-old male who was born in Chuadanga in Bangladesh. He lived there from [year] until 1997. After 1997 and until he arrived in Australia, he lived in Mirpur, Dhaka, Bangladesh.
He claims citizenship of Bangladesh and provided a copy of his Bangladesh passport. He can read and write English, and can speak, read and write Bengali. He identifies his ethnicity as ‘Bangladesh’, his religion as ‘Islam’ and his occupation as [deleted]with his most recent employment in Bangladesh being with a company [in] Dhaka. He worked there from 2007 until he departed for Australia. He married in July 2012 in Dhaka, Bangladesh. His father, mother, brother, wife and son remain in Bangladesh. He declared previous travel to [Country 1] and [Country 2] in 2011.
The protection form asked the applicant about criminal proceedings. The applicant declared that there were criminal charges pending in Bangladesh. He cited case [deleted] pursuant to the Bangladesh Criminal Code.
The applicant wrote that he was making his own claims for protection. He was seeking protection, so he did not have to return to Bangladesh. He indicated that he had experienced harm in Bangladesh, that he sought help within Bangladesh after the harm, and that he moved, or tried to move, to another part of Bangladesh to seek safety. He thought that he would be harmed or mistreated if he returned to Bangladesh and did not think that the authorities of Bangladesh could and would protect him. He did not think he would be able to relocate within Bangladesh. Regarding the details of this response, the applicant referred the reader to his written statement.
His friend [Mr A] was hacked to death by Awami League terrorists in 2009 after subdistrict elections. The applicant believed that this happened because [Mr A] was involved in the BNP. After this death, the BNP in Chaudanga was vandalised by the Awami League.
In March 2015 a friend named [Mr B] was beaten to death with sticks and rods by Awami League terrorists. [Mr B] had a neighbour who was actively involve in the Awami League and had a political dispute with his neighbour. He was then killed.
In July 2015 the applicant was attacked by members of the Awami League after refusing to pay money.
In August 2015 a political colleague named [Mr C] was killed during a bomb attack by the Awami League on a BNP procession. This colleague was the convening committee member of the BNP in Chuadanga. The applicant believed that this attack was politically motivated.
The applicant wrote that he had received further information that is relevant to his protection visa. He wrote that he was apply for a protection visa after more than two months in Australia on ‘reasonable grounds.’
At the ‘beginning of last week’ he called a political colleague named [Mr D] and asked him to find out why the police had been coming to his home after the applicant’s departure from Bangladesh. [Mr D] informed the applicant that this occurred because of a ‘false case’ which is pending at the Magistrates’ Court. The applicant attached a copy of a document which he identified at the delegate interview as a court document related to his criminal case.
The applicant wrote that around Tuesday or Wednesday, the applicant called [Mr D] and was told that he had been to [the] Police Station and discovered that there was a warrant out for the applicant’s arrest relating to criminal charges. He asked his friend to obtain more details. His friend went to the court and obtained documents about the charges. He emailed the applicant those documents.
The applicant wrote that this is a false charge and he believed it was brought against him due to his political opinion. He knew nothing about this.
The applicant wrote that if he returned to Bangladesh he would be seriously harmed or killed by the Bangladesh authorities. This included the police and judicial system. The judicial system is corrupt and political leaders use the judicial system to target their opponents. He did not believe there was nowhere in Bangladesh that could be safe. He would be targeted throughout Bangladesh. If he was returned to Bangladesh, he feared that police would arrest him and he would be jailed where he would be kept in inhuman and degrading conditions. He may be subject to the death penalty and fears that he would be denied access to a fair trial.
He noted his communication difficulties. The period following his departure from Bangladesh has been unsettling for him and this has impacted his memory. While he was in Bangladesh the last few months (at the time he lodged his protection visa application form), he only had limited contact with his political colleague in Chuadanga which limited his access to information about what was happening in Chuadanga. He was distressed after the contact of [Mr D]. The applicant believes his life will not be safe anywhere in Bangladesh under the Awami League Government. He wrote that he did not feel able to discuss details of his experiences or the experiences of his political associates who were harmed and killed as a result of political beliefs.
If he returned to Bangladesh, the applicant said there exists the following measures in particular, besides ‘unforeseen events. The first is death at the hands of Awami League thugs. The second is his arrest by the Awami League Government police. He would remain in jail and be tortured without any trial. The third is that Bangladesh terrorists will kill him.
The applicant provided a document and an English translation of the document which identified the document as the ‘Convener Committee for the BNP in Chuadanga District,’ a document and an English translation of the document which identified the document as the applicant’s marriage certificate in Bangladesh, and a six page document that was not accompanied by an English translation which was identified as the ‘false case’.
A submission from [a migration firm] dated 12 April 2017 was provided to the Department. Included in the submission were a statement from the applicant, a list of Bangladesh National Party members, a letter of support from the Joint Convenor of the BNP and a number of medical documents. The statement, list of Bangladesh National Party members included in the submission was the same that the applicant included in his protection visa application form. The document identified as a letter of support was from a person [who] identified that the applicant was the organising secretary of the Bangladesh Jatiobadi Jubo Dal, which is a front organisation of the opposition BNP. The letter described the applicant as an educated, motivated and dynamic leader. The letter claimed that the applicant is a victim of the Awami League hooligans and that he left the country and was compelled to take shelter after being harassed and having several false cases lodged against him.
Contained on the Department file were medical documents. There was a document from [Hospital 1] dated 20 March 2017 disclosing that the applicant had [a medical condition] which was diagnosed in August 2016 and noting his other medical [problems]. There was an undated letter from [a doctor] from the same organisation and a letter from the same organisation requesting that the delegate interview scheduled for 20 January 2017 is rescheduled. The Tribunal notes that the delegate accommodated this request. There were other medical documents about the applicant’s treatment and medical conditions that were also provided. A letter from [Hospital 1] dated 25 May 2017 was sent to the Department after it made its decision which noted the applicant’s medical conditions.
FINDINGS AND REASONS
The issue in this case is whether the applicant is a ‘refugee’ or a person who meets the ‘complementary protection criteria’ or is a person who is a member of the same family unit as such a person.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
What is the country of reference?
The Tribunal is satisfied that the applicant is a citizen of Bangladesh with no right to enter and reside in a third country. The Tribunal makes this finding on the basis of the copy of the applicant’s Bangladesh passport that was provided with his protection visa application form, and the fact that there is no information to suggest that the applicant is a citizen of another country or able to enter and reside in a third country. Bangladesh is the country of reference for the purpose of the protection visa assessment.
Is the applicant a witness of truth?
The applicant signed a protection visa application form declaring that the information he supplied or caused to be supplied with his protection visa form as complete, correct and up to date. He declared that he did not have, nor previously had been, a member of a group or organisation that was involved in criminal conduct or related activities. At the delegate interview he said that there was nothing in his protection visa application form that was incorrect or that he wished to change. All the information was correct.
The applicant’s oral evidence to the Tribunal about (some) of his reasons for claiming protection was extremely different to what he has previously put forward. At the start of the Tribunal hearing, the applicant told the Tribunal that everything he put in his protection visa application form was correct. According to the protection visa application form, the applicant did not receive any assistance completing this form, and he is able to read and write English. The applicant told the Tribunal that what he had said at the delegate interview was the truth, but he believed that the delegate could not understand the applicant clearly. He was nervous at the time of the interview and had never faced that type of interview before. There were a few questions that the applicant was asked but the applicant could not understand the delegate clearly.
The applicant’s role as an ‘illegal money launderer’ in Bangladesh
The Tribunal asked about the questions the applicant was referring to. The applicant then told the Tribunal that he worked as an ‘illegal money launder’ laundering money in Bangladesh and faced many troubles because of this. His family are facing troubles in Bangladesh now because of this. The Tribunal asked how this related to a lack of understanding at the delegate interview. The applicant said that he did not tell the delegate that he was involved in money laundering because he was worried that it may affect his protection visa application. He confirmed that the told the delegate interview that he was beaten because money had been demanded from him and that his wife now faced demands for money. The applicant said that the reason he was applying for protection was because of his money laundering activity. He was sent to Australia by the boss of the money laundering operation. It was his boss who organised everything and transferred property into the applicant’s name and a factory, so the applicant could have an interview with the Australian embassy so he could be issued a visa to come to Australia.
The applicant told the Tribunal that he worked for his boss from 2007 to 2016 until he came to Australia. He said that the money laundering was illegal. It was not associated with the business that the applicant was employed with during 2007 to 2016, which was also owned by the money laundering boss. The Tribunal notes that the applicant initially said that he did not do any other work between 2007 to 2016 but then said he worked at the [company]. The money laundering involved creating a fake project, securing a loan with a bank in Bangladesh, obtaining the money, giving the bank manager a cut of this money, and then sending the remainder of the money to [Country 2], where it could be sent to anywhere in the world.
The applicant was asked several times about the purpose of his trip to Australia. He repeated that he was involved in money laundering and people thought he had lots of money. His money laundering work involved people from both the Awami League and the Bangladesh Nationalist Party. Finally, the applicant said that the money laundering boss was grateful for the applicant’s work, and he organised the trip to Australia to save the applicant’s life. The applicant did not want to go to Australia, but the applicant’s boss said that the applicant should be safe for 6 months. The boss went to [Country 3] where he had properties. The applicant left Bangladesh because everyone knew about what the applicant did with money laundering. He noted that his duties in the money laundering business involved going to the bank and picking up the funds and then giving them to someone else. He gave examples of giving money to people involved in the Awami League and the Bangladesh Nationalist Party. The applicant said that he felt threatened and that he was hit and beaten because he was thought to be wealthy because he was involved in money laundering.
The applicant said it was not his intention to remain permanently in Australia. His intention was to return to Bangladesh. The Tribunal asked when his intention changed. The applicant said that he rang another person who was involved in the money laundering business named Jasim to find out about the situation in Bangladesh. He was told that his boss was sending the other employee to [Country 2] and the boss was going to [Country 3] and was taking a lot of money with him. This happened when the applicant was in Australia for about one month. The applicant was told that he was in the middle of something, and if he returned to Bangladesh his life would be threatened.
The Tribunal asked the applicant whether his role as a money launder the only reason he was claiming protection. He said because of his role as a money launder, no one would take responsibility and say that they knew him. This was further explored with the applicant by the Tribunal and the applicant said that no one would take responsibility if the applicant was killed because he was involved in money laundering. The Tribunal understands the applicant’s evidence to be that because of his involvement in laundering money for the Awami League and Bangladesh Nationalist Party, he would not be protected by either group or the Bangladesh authorities because no-one wants to admit that they were involved in money laundering. Initially, he did not answer the question directly, but later told the Tribunal that he would be arrested if he returned to Bangladesh because he was involved with the BNP and cited the deaths of people in 2015 who were similarly involved with the BNP as a reason he feared harm in Bangladesh. The Tribunal discusses the applicant’s political profile elsewhere in the decision.
The Tribunal is not satisfied that the applicant is a credible witness when it comes to his claims about his involvement in illegal money laundering. This conclusion is also based on the Tribunal’s findings when it comes to the delay in the applicant seeking protection, and the evidence about the ‘false case’ against the applicant discussed elsewhere in this decision. Separate from those findings, the Tribunal is confident that if the applicant was involved in any money laundering activity as he claimed in his oral evidence at the Tribunal hearing, he would have declared this involvement in his protection visa application form if it were true. The Tribunal does not accept that the applicant would have withheld this information and not detailed it in his written protection visa application form because it formed a basis of him seeking protection in Australia and if this was found out after he had been granted protection in Australia, his visa would have been liable to cancellation with the consequence being his removal from Australia.

However, even if the Tribunal was to accept the applicant’s argument that he did not disclose this aspect of his claims in his protection visa application form, the Tribunal then struggles to understand why the applicant did not seek to correct his claims at the delegate interview. He was asked whether there was anything in his claims that he wished to change, and he said he did not. Further, the applicant’s initial attempt at the Tribunal hearing to characterise this information being omitted because he did not understand the delegate, or the delegate did not understand him, was not persuasive. There was clearly no misunderstanding or a failure by the delegate or the applicant to understand this claim. It was not raised by the applicant despite him being provided a perfect opportunity to do so. Later, the applicant told the Tribunal that he did not want to raise this because he did not want it to affect his protection visa application. The Tribunal is satisfied that this shift from misunderstanding to a deliberate decision to withhold this information was done by the applicant to obvious concern raised by the Tribunal about how the failure to detail this information could have been considered a misunderstanding.
The Tribunal raised with the applicant that he had not detailed the harm he would face because he was involved in illegal money laundering. The failure to do so (if the Tribunal accepted those claims to be true) suggested that the applicant was prepared to tell or not tell whatever evidence he thought would assist him and the Tribunal may not give any weight to his claims because of this. The applicant repeated that he was blind and told the truth. He had made a promise on the Bible and only God knows the truth. He made an odd comment that a blind person can never lie. This reiterated his earlier comment that he believed that he had gone blind because he had not been truthful at the delegate interview. The Tribunal does not accept the applicant’s proposition that a person with vison problems in incapable of telling a lie.
The Tribunal is not satisfied that the applicant was involved in money-laundering in Bangladesh, that he or his family in Bangladesh were ever harmed due to this claimed involvement, or that the applicant departed Bangladesh and has not returned to Bangladesh because he fears harm in the future because of his claimed profile as a money launderer. The Tribunal is satisfied that the applicant created this narrative to bolster his protection claims.
The ‘false case’ against the applicant
As made clear from the applicant’s written statement, he sought to account for the delay lodging a protection visa by declaring that he became aware of a criminal case that had been filed against him. As detailed in the migration history, the applicant lodged his protection visa close to the expiration of his visitor visa. His statement about the delay was quite detailed. He explained how he was planning to return to Bangladesh but spoke to a political colleague to ask why police had been coming to his house after his departure from Bangladesh. The applicant was informed that this was because of a ‘false case’ that was pending in the Magistrates’ Court which was attached to the protection visa application form. The applicant followed this up with a further conversation with his political colleague and he was told that there was a warrant against him. He explained to the delegate that the allegation was that he was holding explosives for a bus attack.
However, the applicant’s oral evidence to the Tribunal about this was very different. To the Tribunal, the applicant said that the reason he lodged the protection visa application was not due to this case, but because he was ‘in the middle of something’ and was known to be involved in money laundering. In fact, the applicant told the Tribunal that he was charged with a criminal case at the beginning, but his mother had money and ‘cleared it up’ with the help of [an official]. [The official] represented the [a certain] constituency in the national parliament. His mother asked this politician to get rid of the case and with payment of money to the police, it went away.
The Tribunal asked the applicant why the criminal case did not stop him leaving Bangladesh. He said that the people he worked for were ‘heavy leaders’ and can manage everything. The Tribunal asked the applicant when he was charged with the criminal case and when it went away. He said he could not tell. Most of the time he was thinking about going blind and cannot think about anything else. He forgets things. The Tribunal asked how he felt when he found out he was being charged with the false case. He said he rang his leader and ran away. His mother knew he was charged at the beginning. The Tribunal asked why his mother paid the money to make the case go away and the applicant said he could not face doing this, and he was in Dhaka at the time. The Tribunal asked how the applicant felt when his mother told him that the case went away. The applicant said he had trouble believing it because he could not trust Bangladesh police or authorities. The Tribunal asked the applicant if he was able to depart Bangladesh because the money was paid, and the case disappeared. He said yes, and the other reason was because his boss helped him leave Bangladesh. Later in the hearing, he detailed that his boss had arranged for an Awami League member to pick the applicant up from his house and drive him to the airport. The applicant was given a code ‘008’ to quote to the authorities if police stopped him. This was done because the applicant ‘knew everything,’ (presumably about the money laundering) and the Awami League said it would be better for the applicant to no longer be in Bangladesh.
The Tribunal has problems with the applicant’s evidence about all the above.
First, the applicant’s evidence about the ‘false case’ against him was entirely confused. confused. In the protection visa application form, the narrative is detailed comprehensively. However, the oral evidence at the Tribunal hearing is completely different. The Tribunal is not satisfied that there would be inconsistency about the chronology of the ‘false case’ if the applicant was telling the truth. Further, given the applicant claimed to have discovered this ‘false case’ while he was in Australia, and sought to use this discovery to explain why he delayed applying for a protection visa until 27 June 2016 when he had been in Australia since [March] 2016 (yet according to his oral evidence that case was cleared prior to his departure from Bangladesh) it suggests to the Tribunal that the claimed ‘false case’ was fabricated by the applicant to bolster his protection claims. The Tribunal put this inconsistency to the applicant because it suggested that the applicant was not a witness of truth and that his claims were a fabrication. The applicant responded to the concern that his mother rang him and said that she had paid to clear the case, and that he did not know whether his name was withdrawn from the case or not. The Tribunal does not accept the applicant’s characterisation of his oral evidence. His explanation does address the Tribunal’s concerns about this inconsistent evidence. Given all of the above, the Tribunal is satisfied that the inconsistencies about this are a result of the claim being fabricated. The Tribunal is not satisfied that the document that the applicant put forward is genuine.
Second, the Tribunal notes that the applicant never detailed in his written statement what was involved in allowing his successful departure from Bangladesh, such as clearing the criminal case through the payment of a bribe, his money laundering boss being involved in arranging his transportation to the airport, or arranging for a code to be provided to the police so the applicant would be allowed to depart the airport. The Tribunal put to the applicant the fact that none of this detail was included in his statement, which may suggest that he is not a credible witness. The applicant said that he is now blind and telling the truth. That did not address why the applicant did not detail this in his protection visa application form. The Tribunal is satisfied that this information was not detailed in the protection visa application form because it was fabricated.
The applicant’s involvement in the Bangladesh Nationalist Party in both Bangladesh and Australia
The Tribunal took the unusual step at the Tribunal hearing of calling the author of the letter for the Bangladesh Nationalist Party in Australia because it was concerned, given all of the above, that the applicant’s protection visa claims were a complete fabrication. The Tribunal spoke to a person who identified himself as [Mr E] and he said that he was the author of the letter. He told the Tribunal that he did not know the applicant prior to his arrival in Australia, but that he had been told about the applicant by [Mr F]. [Mr E] knew [Mr F] from their student days in Bangladesh. [Mr E] confirmed that he spoke to [Mr F] and that [Mr F] told him about the applicant. [Mr E] had known the applicant from around 2016 or 2017. He became a member of the BNP in Australia.
While the Tribunal has concerns about the credibility of the applicant for the reasons outlined, the Tribunal cannot discount what [Mr E] has told it. There is not enough information related to [Mr E] to suggest that he is not a witness of truth. Further, [Mr E] told the Tribunal that he had seen [Mr F]’s letter and confirmed that he had spoken with [Mr F] about the applicant. [Mr E], who the applicant put forward as a witness through the provision of the letter, told the Tribunal that he was told that the applicant was in trouble and that his family was in trouble. [Mr E] told the Tribunal of his understanding that the applicant was a student leader in the applicant’s area.
This would accord with the material that the applicant provided in support of his claims, namely a ‘Bangladesh Nationalist Party Chuadanga Committee’ list that records the applicant’s name as a member of that committee. The applicant told the Tribunal hearing that he was a member of that committee in 1998 when he fell out and had an argument. He ceased to be a member of that committee at that time. It would also accord with the fact that the applicant was able to tell the Tribunal who the BNP Member of Parliament was from 1996 (this was the same person who helped the ‘false case’ disappear) but was not able to tell the Tribunal when this Member of Parliament ceased holding his constituency seat.
To that end, the Tribunal accepts that the applicant was a member of the ‘convener committee’ of the Chuadanga branch of the Bangladesh Nationalist Party in 1998, and that he was involved in the Bangladesh Nationalist Party (whether that be its youth or student wings, or adult branch) from around 1995 to 1998. That would accord with the letter of the Joint Convenor of the Chuadnga branch of the Bangladesh Nationalist Party who noted in 2016 about the applicant’s role with the Jatiyatabadi Jubo Dal, which is the ‘youth wing’ of the Bangladesh Nationalist Party. However, the Tribunal is not satisfied that the applicant was involved in any political activity after 1998, and that any information provided by [Mr F] to [Mr E] about the applicant’s political profile is historic in nature, and based on the reporting of either the applicant or his brother (who the applicant told the Tribunal assisted in obtaining the letter from [Mr F]). The Tribunal is not satisfied that any of the reporting to [Mr F] by the applicant’s brother is genuine about the harm the applicant has claimed to have suffered in Bangladesh is true, and that any of the allegations told to [Mr F] were provided to secure a protection visa in Australia.
As the Tribunal put to the applicant, the Tribunal needed to consider the contents of the Department of Foreign Affairs and Trade Report on Bangladesh when considering his claims. The Tribunal noted that the report suggested that ordinary BNP members have been prevented from leaving Bangladesh by the authorities (paragraph 5.25 of report), but that it was DFAT’s assessment that senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges and travel bans (paragraph 3.70). The Tribunal put to the applicant the fact that the applicant was able to leave Bangladesh may suggest that he was of no interest to the Bangladesh authorities. The applicant was invited to comment about this observation, and the applicant said that a Bangladesh Nationalist Party foreign minister was involved in money laundering and was able to depart Bangladesh on a charter fight. Anything can be achieved with money. The Tribunal asked the applicant to address its concern. The applicant responded that his money laundering boss organised his travel out of Bangladesh. As discussed earlier, and for the reasons provided, the Tribunal does not accept that there is any such money laundering boss and therefore, the Tribunal is not satisfied that this person arranged the applicant’s departure from Bangladesh.
The Tribunal turns its mind to whether the applicant, who the Tribunal is not satisfied was involved in any political activity after 1998, and has never been harmed previously in Bangladesh on account of his political opinion or involvement in any claimed political activity, will be harmed if he is returned to Bangladesh. The Tribunal is not satisfied that he will be harmed for the reasons discussed above.
Materials not related to protection claims submitted by the applicant
It is not the task of the Tribunal to make the applicant’s case for him. However, given the material that had been submitted that was not related to the applicant’s claimed profile as a money-launderer or Bangladesh Nationalist Party member (and without it being addressed in a written statement or in the submissions provided), the Tribunal identified various documents and asked the applicant to tell the Tribunal how they were relevant to his protection claims.
The Tribunal asked the applicant how the letter from [Dr B]was relevant to his protection claims. The applicant started to talk about the surgery he had undertaken and was directed to answer the question. The applicant said that anywhere he goes, he tries to learn English. He noted that he was unwell and trying to learn.
The Tribunal asked the applicant how the drawing from his son related to his protection claims. The applicant said that because he is going blind, his son is telling him to come back. The applicant said that he submitted this drawing to let the Tribunal know his feelings.
The Tribunal asked the applicant how the two letters from [Reverend C] were relevant to his protection claims. He said they were important because they teach him the Bible. He visits them every Sunday and this helps his eyes get well. The Tribunal again asked how this was relevant to the applicant’s protection claims. The applicant responded that this is what he is trying to do and from the inside, he does not feel blind.
The Tribunal asked the applicant how the various medical reports were relevant to this claim. He said he was unwell and now legally blind. The Tribunal asked how that related to his protection claims. The applicant said that in 2016 he was admitted to hospital and that is the reason that his delegate interview was rescheduled and he provided that material.
It is not the task of the Tribunal to make the applicant’s case for him. It is a matter for the applicant to provide the Tribunal with as much detail as possible to enable it to make relevant findings of fact. The applicant was asked directly about the relevance of all this material. In contrast to the claims raised on account of his profile as an illegal money launderer or his profile as a Bangladesh Nationalist Party member, the applicant at no point at the Tribunal hearing raised that he would be harmed in Bangladesh because he was learning English with the assistance of [Dr B], or that the drawing by his son had any relevance to his protection claims, or that he would be harmed because he attended [Reverend C]’s church or was learning the Bible, or that he would be harmed on account of his various medical conditions.
The Tribunal accepts that the applicant suffers [medical conditions], that he has depression which is being treated with an anti-depressant and provided with regular psycho-therapy as outlined in the medical material. However, the Tribunal does not accept that any of his health problems can be attributed to his claimed past harm or fear of harm in Bangladesh for the reasons previously discussed. The Tribunal asked the applicant about how his medical conditions related to his protection claims and was told nothing more than he is sick which the Tribunal accepts is the case.
The Tribunal does not accept that there is a risk of harm to the applicant on account of his medical conditions because if that was the case, the applicant would have told the Tribunal that this was the case. The Tribunal does not accept the suggestion in the report of [a named doctor] that ‘there is a high risk of the PTSD and stress related symptoms exacerbating if he returns to Bangladesh’ because that suggestion is based on the premise that the applicant has suffered trauma in the past as he claimed. The Tribunal is not satisfied that this has occurred for the reasons discussed. Again, it is not the task of the Tribunal to make the applicant’s case for him. There is no basis for the Tribunal to conclude that the applicant would be denied any health care that would be available to any other citizen of Bangladesh who suffered with the applicant’s conditions.
CONCLUSION
The Tribunal concludes that the applicant is not a credible witness about his claimed profile as an ‘illegal money launder,’ and that he has fabricated his claims of past harm and risk of future harm in Bangladesh. The applicant does not face any risk in Bangladesh because of this claimed profile. Everything arising out of this claim is rejected in its entirety.
The Tribunal concludes that the applicant has embellished his profile as a member of the Bangladesh Nationalist Party. The Tribunal does not accept that the applicant has had any political involvement with the Bangladesh Nationalist Party in Bangladesh after 1998, apart from arranging his brother to obtain documentation that the Tribunal is satisfied relates to his historic involvement in that organisation, and that any claims of harm contained in those documents are based on the reporting of the applicant’s brother. While the applicant may attend the Bangladesh Nationalist Party in Australia, as claimed by [Mr E], the applicant did not say that his involvement in an Australian branch puts him in harm at Bangladesh. The Tribunal is satisfied that the applicant joined the Australian branch of the Bangladesh Nationalist Party to lend credibility to his claim that he continues to be supportive of that political party. As advised to the applicant at the start of the hearing, the Tribunal must disregard any conduct that the applicant engaged in during his time in Australia unless the applicant satisfies the Tribunal that he did this other than for the sole purpose of strengthening his protection claims. Given the evidence as a whole, and noting the Tribunal’s findings, the Tribunal concludes that the applicant has become involved with the Bangladesh Nationalist Party in Australia solely for the purpose of claiming protection in Australia, and not because of any genuine belief or support for the Bangladesh Nationalist Party, because his support for that party ended in 1998 when he had disagreements which lead to him no longer being a member of the Convener Committee. To that end, if the applicant was to return to Bangladesh, the Tribunal is satisfied that he would not engage any political activity at all in Bangladesh, because he has not done so since 1998. Further, there is nothing for the Tribunal to be satisfied that as a result of the applicant being a member of the Australian branch of the Bangladesh Nationalist Party (which the Tribunal reiterates was not done for reasons other than applying for a protection visa, and will cease once the applicant returns to Bangladesh), that this places him at risk of harm in Bangladesh.
Refugee

The Tribunal needs to consider whether the applicant faces a real chance of serious harm in Bangladesh due to his race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is not satisfied that there is a real risk for the reasons given above.
Accordingly, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to Bangladesh, there is a real risk of significant harm. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk of the applicant facing significant harm.
Accordingly, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
There is no evidence to demonstrate that the applicant is 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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 5810

10 December 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction