1713567 (Refugee)

1713567 (Refugee) [2019] AATA 5953 (17 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1713567
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Angela Cranston
DATE:17 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.
Statement made on 17 June 2019 at 10:47am

CATCHWORDS

REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh National Party – public servant – fear of torture – political activities in Australia – false legal proceedings – land dispute – letters of support – monitoring activists overseas – inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 36, 48A, 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. 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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. This case has a long previous history.

3. The applicants who claim to be citizens of Bangladesh, applied for the visas on 6 December 2012 and the delegate refused to grant the visas on 12 June 2015.

4. The applicant arrived in Australia [in] February 2010, as the holder of a [temporary] visa, and the second-named applicant arrived [in] March 2010. The applicants lodged a Protection visa application on 5 March 2010, in which the applicant wife presented protection claims of her own and the applicant was included in the application as a member of her family unit who did not have his own protection claims.

5. The delegate of the Minister for Immigration refused the application in September 2010, and the (then) Refugee Review Tribunal affirmed that decision in February 2011. The applicants sought judicial review of the Tribunal's decision before the Federal Magistrates Court and the Full Federal Court, without success. The High Court dismissed an application for special leave to appeal in February 2012, and in October 2012, a request for Ministerial Intervention was finalised as 'not considered'. This matter is therefore finalised.

6. On 6 December 2012, the applicants lodged a second protection visa application, which is the subject of this review. The first-named applicant lodged this application on the basis of his own claims for protection, and the applicant wife was included as a member of his family unit who did not have her own protection claims. In that application, the first named applicant stated the following:

I was a [public servant] in Bangladesh. I was also a member and support of Bangladeshi National Party (BNP) when I was a student at college. I was a very active member in the student wing of BNP and maintained a close relationship with the central party leaders.
After finishing college I joined the [public service] as a [Occupation 1] with the help of my political relationships with members of BNP. I also had to sit for an examination for the position of [ Occupation 1]. At that time BNP was still in power. During my professional career as [ Occupation 1] I [met] many Awami league leaders and [produced negative] reports against them for [further investigation] by the order of the BNP political leaders. As a result many AL members became my enemy.
I arrived in Australia [in] February 2010. My wife arrived [in] March 2010. She also had her own problems and lodged a protection visa. On [a date in] August 2011 I was discharged as an [Occupation 1]. I now fear to return to Bangladesh because I will be targeted by the Awami League leaders who I [contacted] and other Awami league criminals and gangs and my political opponents.
I fear due to my political activities and my position as an [Occupation 1], I will be targeted my political opponents and Awami league criminal gangs. I fear I will face real risk of harm including torture, inhuman and degrading treatment if I return to Bangladesh. I fear I will not be able to get adequate state protection because of the authorities are corrupted. I fear even I moved to other parts of Bangladesh I will be targeted by my political opponents and the AL criminal gangs as they have present throughout the country.

7. Also on file was:

a.A document translated as discharge slip
b.Photos of the applicant [as an Occupation 1]
c.Submissions dated 18 June 2014
d.Document dated [in] November 2009 entitled complaint against [the applicant] in relation to alleged threats by the applicant land dispute
e.Translated article from [a newspaper] about the applicant’s alleged threats towards his step mother
f.Letter from the applicant to [police] about the alleged land complaint
g.Document marked Investigation Report about the alleged land dispute
h.Summon to the accused addressed to the applicant
i.Document variously dated identifying plaintiffs, witnesses and the accused
j.Document marked Complainant versus accused stating that the accused are acquitted.
k.Document marked schedule of disputed property
l.Document dated [in] March 2010 from [his agency] about the applicant’s employment
m.Document marked final order regarding the departmental complaint about the applicant exceeding leave
n.Bangladesh [work identification] for the applicant
o.Ministerial letter from the applicant dated 20 November 2011

8. The delegate initially assessed this second protection visa application as invalid under s.48A of the Migration Act (the Act). The applicants appealed that decision to the Federal Magistrates Court, and [in] May 2014, the Court issued consent orders remitting the matter to the Department for reconsideration, accepting the application as valid as a result of the Full Court of the Federal Court's decision in SZGIZ.

9. On 12 June 2015, the delegate refused the application for a Protection (Class XA) visa and the Tribunal affirmed the decision under review. The applicants sought judicial review of the Tribunal’s decision and the matter was remitted back to the Tribunal for reconsideration because the existence of a s.438(1)(b) certificate was not disclosed to the applicants in the course of the review.

On the Tribunal files were the following:
·     Letter from [Mr A] Ex [Position 1] Bangladesh Nationalist Party BNP Australia on Bangladesh Jatiotabadi Dal Australia letterhead dated [in] October 2016 and photographs of the applicant
·     Letters from [Mr B] dated [in] April 2019 and [in] October 2017
·     Post hearing statement from applicant
·     Further letter from [Mr B] dated [in] May 2019
·     Letter from [Lawyer A] stating that the applicant was his client in relation to the dispute involving his relatives
The first named applicant (the applicant) appeared before the Tribunal on 2 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicants were represented in relation to the review by their registered migration agent.
The adviser stated the wife had returned to Bangladesh and the Tribunal put to the applicant that if she was not in Australia, she could not be granted a protection visa.
The applicant stated he came to Australia [in] February 2010 on a [temporary] visa that ceased within three months and they applied for a protection visa within 28 days. The Tribunal referred him to his further protection visa application in December 2012. The applicant stated that he had read his English application forms and they were correct. When asked about the letter sent to the Minister dated 20 November 2011, he stated he had read it, it was correct and did not want to add or change anything.
The applicant stated that before he came to Australia he lived in Dhaka and before that in Hobigong for one month. He was married in September 2005, studied a [course] [between specified years], was employed with the [agency] at the end of 2003 and finished that job after he came to Australia. When asked if he could be more specific, he stated he finished in mid-January 2010. He then stated he came to Australia and after one year was discharged. The Tribunal put to him that he said he came to Australia in February 2010 and his job finished after he came but also said that his job finished in January 2010 which was before he came to Australia. He stated when he came his job was still there but he was discharged after he came. When again asked for his discharge date he stated he could not remember, he thought it might have been in 2011 or 2010 and did not remember the month. When asked why he lost his job he stated they filed a false court case against him about land, he then came to Australia and they dismissed him. He said his step mother and her family members said he had abused his position, had threatened them and had then attacked them and they also complained to the [agency head].
The Tribunal put to him that in his wife’s protection visa she said he was unemployed when they married in 2005 but that was when he said he was in the [agency]. He stated he still had a job when he came but was worried the Australian government might think he was a spy. The Tribunal put to him that his wife’s protection visa said he was in private business and had started a [product] business. He stated a student friend had asked him to write this.
The applicant stated he was involved with the BNP student wing which he joined in [year] when he was 16 or 17 but not the BNP. The Tribunal put to him it had information that suggested you had to be over 18 to join the BNP student wing. He stated in Bangladesh when they enrolled in HSC they could be involved in politics.
The Tribunal put to the applicant that when he appeared before the RRT on 7 January 2011 the RRT stated that he confirmed that he had no separate protection claims. He stated he had been advised to say that by his friend. The Tribunal put to him that he had had an opportunity to tell the Australian government his fears but instead had said he had no claims. He stated he made a mistake.
When asked if he had been anywhere before he came to Australia he stated he had been to [specified countries] but did not have a visa for anywhere else. The Tribunal put to him that it understood he had obtained a [Country 1] visa for [Country 1]. He stated he applied for a visa but did not get it.
The applicant stated he came to Australia for protection and feared returning to Bangladesh because the Awami League Government would kill him since he had [reported] Awami League leaders. The applicant stated the Awami League came to power in November 2009. He stated there was a false case against him and that was how they killed [public servants]. The Tribunal put to him that the Awami league won the general election in December 2008. He agreed and stated he tried to arrange a [Country 1] visa at that stage. The Tribunal put to him that it understood that he got the [Country 1] visa in November 2008. He stated he did not get the visa. The Tribunal put to him that he may have applied for the visa in 2008 which was before the Awami League came to power. He stated the caretaker government was in power.
The Tribunal put to him that it understood the Awami League came to power in January 2009, he did not leave until February 2010 and was in his position all that time. He stated there were three or four departmental cases filed against him.
The applicant stated he was threatened three or four times before the Awami League came to power. He stated the first time he was threatened was in 2008, he was on his way home from work on a motor bike at around 2am in the morning when people attacked him, asked why he had [reported] them and threatened him. He stated a police van came and they ran away. He also stated that on another day in 2008 he was again attacked, the same thing happened, he had [reported] people, they then attacked him and said if we see anything happen after this we will kill you. When asked how they attacked him he stated he was on the street in a car, there were [police nearby] and he told them to go to one side and he and the driver went to another and that was when he was attacked by the Awami League. He stated they came with hockey sticks and knives. He told them he is not going to come back anymore and they left.
The applicant stated the third time was in September/October 2008 when he was on his motorbike when they pushed him and he fell but they did not hit him because others came out. He stated there was another attack in 2007 when he was enquiring about a [work matter] and was returning via a three wheeler car to the [workplace]. He stated they intended to kill him and he fell. He lost consciousness which he regained in hospital. His left shoulder broke and his leg still had a mark. When asked who he thought attacked him, he stated it was the Awami League because the Awami League had followed them and there was a writer with him who had informed him of this. When asked if there was any other way he knew it was the Awami League, he stated after he was cured community sources told him the Awami League wanted to kill him.
The Tribunal put to him that in his statement he said while he was in hospital he was threatened to stop [his work] and to stop listening to the BNP. He stated they did not threaten him in the hospital.
When asked if there were any other times that he was threatened before the Awami League came to power he stated no.
When asked about how many times he was threatened after the Awami League came to power he stated he [reported] [Leader A] and the Awami League (maybe 200) surrounded [his workplace]. He stated he was also threatened when [Leader A] was sent to jail. [Leader A] was also released from jail about one month later and he also threatened him. When asked what he threatened him with he stated they will kill him if he disturbed them. They offered bribes for him not to disturb them and asked him what he wanted each week. He stated he would come out and see people following him.
After the Awami League came to power he found money that belonged to the Awami League and was told if he gave it back, he would get some but he gave it to the government and never took any bribes. When asked if he received threats because he did not take bribes, he stated he was threatened with death. The Tribunal put to him that in his statement he said they threatened him with transfer to a remote area and that they would destroy his career. He stated that’s what they did if you did not cooperate.
When asked about the complaint against him in relation to land, he stated in 2009 he had a problem with his step mother and her family who were jealous of his government job. He stated they filed a false complaint against him because he belonged to the BNP and they belonged to the Awami league. He stated they attacked him in 2009 but was unsure of the date. He also stated he had filed a GD against them. The Tribunal put to him that it was not sure that it had read they attacked him. He stated they previously threatened him and he filed a GD against them. When asked what had happened to the dispute he stated he informed a Parliamentary member about the problem who did not take any action because he and the police were involved with the Awami League. He stated the situation remained the same and they still had a problem with him and his brother was in jail. When asked what the false case against him was, he stated they said he attacked and threatened them, they submitted another application to the [agency head] who had it investigated and it was found to be false. He stated they had also submitted a court application and a case was pending against him saying they had attacked him but he did not know what had happened. The Tribunal indicated that the accused was acquitted. He said he thought there were two cases. The Tribunal put to him that if he had assault charges against him wouldn’t he be interested especially given he’d filed something with the Tribunal that seemed to suggest the case had been acquitted. He stated there were two cases one where he had been acquitted and one which was active. The Tribunal asked why he had not said that previously and he stated his brother had spent time in jail because of that case.
The Tribunal put to him that there was a complaint because of him exceeding his leave and that a suspension order had been sent to his brother in August 2011 and that seemed to be the reason why he lost his job. He stated there were three or four files against him. The Tribunal also put to him that the ‘final order’ said his brother received a suspension order [in] August 2011 that gave him seven working days to respond and yet there was another document saying the applicant was dismissed [three days later]. He said he didn’t understand because they were departmental letters. The Tribunal also put to him there was a letter dated [in] March 2010 that stated he had 10 days leave and that unless he returned to work on [in] March 2010 punitive measures would be taken against him. He stated to save himself he came to Australia. The Tribunal put to him that it seemed logical that if he had not been turning up to work then he would lose his job. He stated in order to discharge him they made false cases against him. The Tribunal put to him that it had not seen any false cases related to his work. He stated he could not get those documents.
The Tribunal put to him that in his letter to the Minister he said that the local Awami League leaders in Australia informed the Awami League government about his presence in Australia and his wife’s protection visa application so the government terminated his job. He said that was true. The Tribunal asked how they knew that he had lodged an application for a protection visa. He stated they did not know and the Tribunal asked how they could then try to sack him because he had lodged his protection visa application. He stated he did not say that.
The applicant stated he was involved with the BNP in Australia since he came. When asked why that was not in his 2011 letter to the Minister he stated at that time he did not have a lawyer and did not realise he had to submit it. When asked what organisation he was a member of, he stated it was BNP Jatiotabadi Dal and it was named Jatiotabadi Dal. The Tribunal asked what the name on their letterhead was and he said Australian Nationalism Party. The Tribunal put to him the letterhead said the Bangladesh Jatiotabadi Dal Australia. The Tribunal asked who [Mr A] was and he stated he was ex [Position 1] of Australian BNP party. When asked what that meant and why he was signing letters as the ex-[Position 1] of the BNP Party on Banglasesh Jatiotabadi Dal Australian letterhead, he stated that there were two groups who were members of the Juba Dal. The Tribunal again asked and he said at that time he was their [Position 2] and the Tribunal asked why not sign it as [that position] and he stated he could not say. He also stated he did not have to pay money to join. When asked if it was a not for profit organisation, he stated they protested if anything happened in Bangladesh.
The Tribunal indicated that it had a issues with the letter, one being that from what it could understand it was an incorporated association whose registration was cancelled [in] 2002 and its quoted registration number ([quoted]) which had been the registration number of the Bangladesh Jatiotabadidhal (Bangladesh Natonalist/National Party BNP was cancelled [in] 1995. The Tribunal indicated it was concerned that the submitted letters were on letterhead that indicated the association was an incorporated association when the Tribunal searches suggested it was not. The Tribunal also indicated that there was another letter dated April 2019 from [Mr B] who said he was the Bangladesh Nationalist Party [Position 2] which was on Bangladesh Jatiotabadi Dal Australian letterhead, looked like it was part of a pro forma letter since one of the paragraphs in the letter referred to “insert-discuss what registration BNP Australia” and talked about a general election expected to be held in December 2018 which, given the letter was dated April 2019 referred to a past event and may be an old letter. The Tribunal indicated that if it accepted that he was a member of this organisation it did not really know what the organisation was, it may be a collection of like-minded people but his membership may not mean that he would be harmed if he returned to Bangladesh. The applicant stated he was involved here and had previous problems in Bangladesh because he had [reported] people. He also stated all of his family members were involved with the BNP in Bangladesh.

The Tribunal put to him that DFAT had assessed that failed asylum seekers were unlikely to face adverse attention. The Tribunal also said DFAT had said the authorities may take an interest in high profile individuals who had engaged in political activities outside Bangladesh but the Tribunal may not be satisfied that was him. He stated because the Awami League was in power then all those involved with them were getting jobs. The Tribunal put to him he had a job for well over a year after the Awami League came into power. He agreed. The Tribunal put to him it didn’t seem that he had lost his job because the Awami League came into power and he stated he was facing the threats from other people and other cases.
The Tribunal put to him that there was a section 438 non-disclosure certificate however the Tribunal considered that if there was information that would be reason for affirming the Department’s decision then it would ask him to comment on that information. The Tribunal put to him that information in January 2016 suggested that he was a [public servant], took sick leave and came to Australia, that he had not resigned, that he had a business and he had a connection with Jamayate Islami and a family member was a member of that party. He stated his [specified relative] was a Parliament member who belonged to Jamayate. He also stated he came directly and could not resign and come because they would have arrested him.
The Tribunal indicated it if he had all of the claimed concerns when he left Bangladesh then he had an opportunity to talk about them when his wife submitted a protection visa application but he had not. The Tribunal also put to him that the detail in relation to what had allegedly happened to him in Bangladesh (with the exception of the 2007 incident) was not in his 2011 Ministerial letter and that in relation to the 2007 incident, he had said he was threatened in hospital. He stated they did not threaten him in hospital. He also said he went to two hospitals and then they threatened him.
The Tribunal also put to the applicant it was difficult to believe that the documents were genuine, that is the document dated [in] November 2009 stated that a complaint had been made against him by his stepmother but also said a case was filed against him [in] December 2009, that is the document said something had been lodged in the future. He stated if someone complained then he or she would send a document to the court and the court would send it back to the police station and then they would submit a report and file a case.
When asked, the applicant stated there were no other reasons why he could not return to Bangladesh.
The Tribunal put to the adviser that it needed to consider whether the applicant should be considered against the Refugee Convention and/or complimentary protection. The agent stated he thought complimentary protection needed to be considered.
The agent also stated the Member had mispronounced the letters from the Australian BNP and confused the interpreter and subsequently confused the applicant.
The interpreter then said he had misinterpreted the name (based on the Tribunal’s incorrect pronunciation).
The Tribunal indicated it would address that at hearing and the interpreter proceeded to correctly interpret the letterhead as Jatiotabadi Dal. The Tribunal indicated to the applicant it still had the same issues, that is why was [Mr A] signing the Jatiotabadi Dal letter as the ex-[Position 1] of the Bangladesh Nationalist Party, BNP Australia. The applicant stated at that time there was no one in charge. When asked why no one was in charge he stated since they came [Mr A] was in charge and later [Mr B] became [Position 2]. The Tribunal asked what was the organisation doing when no one was in charge. He stated there were two groups, one by [another leader] and the other was by [Mr A]. He stated he was part of [Mr A’s] group. When the Tribunal put him that didn’t really explain anything, he stated because he worked with them he knew him and gave him the letter as the ex-[Position 1]. The Tribunal put to him that it was wondering whether the letters were provided to support protection visa applications but really nothing was happening. The Tribunal also put to him that its investigations indicated that the organisation had been deregistered as an incorporated association a long time ago and one of the concerns was that it was still using a letterhead that suggested that it was an incorporated association. The Tribunal indicated it did not know what legal penalties applied for holding out to government agencies that it was an incorporated association when it was not, however there was a question mark over the organisation in the Tribunal’s mind. The applicant stated he didn’t know if it was registered or not but everyone knew they were involved with that party and participated in activities. The Tribunal put to him that he had not told the Minister that and the first time it had heard about it was in 2016 and yet he had been in Australia since 2010. He stated there were two groups, after 2014 there are been a dispute and in around 2017 he was involved with the group again.
The adviser stated the applicant had been confused and the applicant’s evidence was significantly affected. The Tribunal indicated the adviser needed to be more specific. The Tribunal asked the adviser if his submission was that because the Tribunal mispronounced the name and the interpreter got confused, then the applicant’s evidence in relation to that organisation was tainted. The agent stated the applicant was confused because he had not submitted documents from organisation that the Tribunal had initially alleged and stated the applicant was confused and his evidence significantly affected from that time. He also stated that it had evidence that [in] May 2009 on [the government website], [the number] was registered. He also stated that the Member saying it was illegal might have also confused the applicant.
Following the hearing, the Tribunal received a letter from the adviser stating that he was wrong and the evidence indicated that Bangladesh Jatiotabadidhal’s registration was cancelled and apologised for his inadvertent mistake.
Following the hearing, the Tribunal wrote to the applicant as follows and also attached searches from the [Government] Associations Register:

[The applicant and his wife]
[The applicant] arrived in Australia [in] February 2010, and lodged his first Protection visa application on 5 March 2010. He did so as the dependent of his wife. In his written application and in sworn evidence before the Refugee Review Tribunal on 7 January 2011, he confirmed that he did not wish to make separate claims for protection and there was no mention of his prior work as a [Occupation 1], and no mention of any political or similar claims.

This information is relevant to the review because (depending on any comments or response that you provide by way of explanation) it appears to indicate that [the applicant] does not genuinely fear harm in Bangladesh for any reason, including any reason associated with his prior work as a [Occupation 1], political affiliation, any family land dispute or any other matter.

In your first Protection visa application, you both stated that you came from a poor family; were unemployed when you got married, and that you later started a [product] business.

This information is relevant to the review because it appears to indicate that [the applicant] has given false and/or inconsistent information in relation to his alleged employment to the Department and to the Tribunal. This may cause the Tribunal to doubt his credibility; to (depending on its overall assessment to disbelieve some or all of your claims; and to not accept at face value the supporting evidence that you provide.

The particulars of the information are:
The Department received information that [in] November 2008 [the applicant] applied for a [Country 1] visa [from the Country 1 authorities] in Dhaka.

This information is relevant to the review because it may be inconsistent with [the applicant’s] statements at hearing on 2 May 2019 which was that he tried to obtain a visa for [Country 1] because the Awami League Government (AL) (which only came to power in January 2009) would kill him.

In a letter dated 20 November 2011 to the Minister for Immigration, [the applicant] stated that:
In December 2007 while he was returning from [a work visit] by tempo (a mini taxi) his car was involved in an accident and he was taken hospital but later on he understood that AL leaders caused the accident to kill him. While he was in the hospital he was threatened to stop [his work] and stop listing to the BNP leaders which he regretted.

In 2009 he [reported] AL [Leader A] from capital city Dhaka and that times AL became his direct enemy and gave open threat to kill him when opportunity arrives. He made a general diary in 2009 against the threat given by ARL leaders In 2009 AL came into the power and gave him threat to kill him, they started departmental investigation against him, stopped his yearly increment and reduced his salary and threatened him to transfer to the remote area of the country and AL leaders brought false charges against him in 2009. Al influenced press and reported against him and influenced [an agency head] to take departmental action against him. Al present home minister offered him bribe through her supporter to speak out against BNP leaders which he denied and she gave him threat to destroy his career and her supporters gave him threat to kill him. She influenced [another agency head] to bring false charge against him.

This is relevant because when asked at hearing on 2 May 2019 how many times [the applicant] had been threatened before the Awami League came to power, he initially stated the first time he was threatened was in 2008 and then proceeded to describe a number of incidents that were not detailed in the letter to the Minister. When he then described the alleged attack in 2007, he stated that he found out that the Awami League was after him because a writer informed him and he later found that out from community sources but did not say that while he was in hospital he was threatened.

This is relevant because the Tribunal may find [the applicant] has not provided consistent evidence and is not credible. If the Tribunal finds [the applicant] is not credible then subject to your comments, it would affirm the decision under review.

Alleged Land complaint
You provided a document dated [in] November 2009 from [Mr C] and addressed to [an agency head] that states that a departmental case has been filed against [the applicant] with the [Court 1] dated [in December 2009].
You also provided a document identified as [a higher court] Form [number] identifying [the applicant] as the accused with an order number dated [in 2012] stating that the accused was acquitted.

This is relevant because the Tribunal may find that a document dated [in] November 2009 that states that a departmental case has been filed after that date is irregular and indicative of fraud. The Tribunal may also find that at hearing, [the applicant] was unable to talk about the alleged case against him with any certainty, that is he initially stated that a case was pending against him but when put to him that there was a document stating that the accused was acquitted, he suggested that there were two cases against him.

If the Tribunal finds [the applicant] and the documents are not credible then subject to your comments, it would affirm the decision under review.

Alleged work
A Document marked final order dated [in] August 2010 states [the applicant] exceeded leave and gives him 7 working days of receipt of the suspension order to respond and states that his brother received the suspension order [in] August 2011 however another document dated [later in] August 2011 states [the applicant] was dismissed from service on [date] (which is three days after his brother allegedly received the suspension order).
A further letter of file dated [in] March 2010 suggests that [the applicant] had 10 days leave and at the end of that leave on [a date in] February 2010 he did not return to work and that unless he appeared within 24 hours, punitive measures would be taken against him.
You state in your letter to the Minister dated 20 November 2011 that the local AL leaders in Australia informed the AL government about your presence in Australia and your protection visa application so the government terminated [the applicant] from his job

This is relevant because the Tribunal may find that it does not accept your submission to the Minister that [the applicant’s] job was terminated because the local AL in Australia told the AL government about your presence in Australia and that you had applied for a protection visa since the letter dated [in] March 2010 is before your protection visa application. In addition, at hearing on 2 May 2019 the Tribunal may find when asked when [the applicant] finished his job he initially stated he finished in mid-January 2010 which was before he came to Australia but then stated he was discharged after he came to Australia and thought it might have been in 2010 or 2011 but could not remember the month. The Tribunal may also find [the applicant] provided vague evidence in relation to when he allegedly finished his job. If the Tribunal finds this, it may not accept that [the applicant] is credible and subject to your comments, would affirm the decision under review.

[The applicant] and his involvement with organisations in Australia
The Tribunal raised at hearing on 2 May 2019 that at no stage prior to [October] 2016 did [the applicant] mention he was a member of the Bangladesh Jatiotabadi Dal Australia, although the Tribunal now accepts that at departmental interview on 24 June 2014 he stated that he was a member of the BNP Australia.

This is relevant because it may be inconsistent with [the applicant’s] evidence at hearing which was that he had been involved with the BNP Australia since his arrival in Australia.

In addition, even if the Tribunal accepts that [the applicant] has been involved with the Bangladesh Jatiotabadi Dal Australia, then based on [the government] Associations Register documents, the Tribunal may not accept that it is an incorporated association as identified in its letterhead or that it has been operating since it ceased to be incorporated.

In addition, even if it accepts that [the applicant] has been involved with this organisation, the Tribunal may not be satisfied that [the applicant] is high profile or that the Bangladesh authorities would be interested in his involvement given that the DFAT Country Information Report Bangladesh 2 February 2018 states that authorities may take an interest in high profile individuals who have engaged in political activities outside Bangladesh.

If the Tribunal finds this then subject to your comments, the Tribunal would affirm the decision under review.

[The applicant’s wife’s] movement records
The particulars of the information are:
[Her] movement records suggest that she has not been in Australia since [a date in] August 2016, and that her Bridging visa ceased on that date.

The Migration Act requires that an applicant for a protection visa must be a non-citizen in Australia to whom Australia has protection obligations. This means that a protection visa can only be granted if the applicant is in Australia. This information is relevant to the review because if the information is true, she cannot be granted a protection visa.

The Tribunal received the following response:

Concern 1 and 2
I did not make separate claim and did not mention that I was a [Occuaption 1] in Bangladesh for the following reasons:

My wife and I were desperate to leave Bangladesh because of the life threats we were receiving.
When we arrived in Australia we met a guy from Bangladesh named [Mr D] and we told our situation with him. He told us that if we mention that I have degree and worked as [a Occupation 1], the Immigration would send me back home. I feared for my safety because I did not want to return. That is the reason we did not mention above things.
Secondly my English was really poor when I arrived here. So I had that language barrier and couldn’t really understand it all. I wasn’t familiar with all these and was desperate to seek refugee here in Australia.

However when I applied for a protection visa under the complimentary protection ground I provided all true and correct information. I came with total clean hands.

Concern three
I request the Tribunal to provide following details which I submit very relevant in my case to provide my comment on or respond.

· When did the Department or Tribunal receive such information?
· What information provided by the [Country 1 authorities] in Dhaka. Did they provide my biodata details including my DOB and passport details?

It should be noted that though the Awami League came to power in January 2019 based on the election in December 2018 attacks and killing against the BNP members started in 2018.

Concern 4
I request the Tribunal consider the passage of time when the incidents occurred and my mental health issues. I am suffering from significant mental health issues which affects my evidence. It is unreasonable to expect the refugee applicant who lives between a life and a possible death to recollect the precise information of the incidents and targeted attacks. I submit that the Tribunal needs to consider overall credibility which I submit that I admitted my mistakes and provided consistence evidence in relation to my complimentary protection visa.

Concern five
It was a typo error and I believe it should not put against my credibility

Concern six
I think the Tribunal confused between suspension and dismissal. According to Collins English dictionary suspension means the suspension of something is the act of delaying or stopping it for a while or until a decision is made about it.
So it is temporary measure. However dismissal means permanent. It is correct the suspension order was received [in] August 2011 and the dismissal order was made [three days later] after the suspension order. I could not see any problem with that and I could not see any justifiable reasons to question the authenticity of the documents.
Yes it is true that I applied for leave and failed to return to work and due to that they have take punitive measure and due to that I was initially suspended and later dismissed. I could not see any justification to form a credibility concern.
It is true that when the local Awami Leaders informed (dob in) the government that I am in Australia, the government decided to dismissed me and informed by a letter dated [in] August 2011. When a person needs to be dismissed from the service, there is some procedure needs to be followed and that was the reason it took time for the government issue the dismissal letter.

I could not see any inconsistency in my evidence.

Concern seven
It is true that there are at least three BNP groups operate in Australia and I associate myself with one of the BNP groups in Australia. I request a strain BNP to provide a letter regarding my activities and they provided. I also obtain additional letter explaining the issues from the BNP Australia.
In my case I am active in Australia with the BNP is true which is an identifiable feature in my case. The Awami League continue to monitor overseas BNP members. Further there is a strong Awami League group in Australia and they monitor the BNP activities in Australia and pass messages to Bangladesh. I hold a position in Australia BNP which is significant and submit that I am not an ordinary member of the BNP as suggested by the Tribunal. Further even if the person does not actively involved in political activities if his persecutors perceive that he involved in political activities he would be targeted and harmed based on current country situation in Bangladesh. In my case I hold a political opinion against the Awami League. Further my family returned Bangladesh in the local Awami League knew that I may return to Bangladesh in a near foreseeable future and therefore I would be targeted if I return to Bangladesh.

Concern seven
I accept that my wife returned Bangladesh and I from the Tribunal as well during hearing.
I fear I returned I would be targeted as a person who left the [agency] without permission and would face serious harm. In addition there is a possibility I would be targeted for extorting money because I would be considered as a returned from Australia and a wealthy person.

Further during the hearing my evidence was misinterpreted which caused me to confused and I develop anxiety and stress without my fault. The member said I provided the documents from Chatrabadi Dal and the interpreter interpreted exactly what the member said as Chatrabadi Dal which is a student organisation of the BNP. On the other hand I provided a letter from Jatiotabadi Dal and not from Chatrabadi Dal. The interpreter also confirmed that he interpreted as student wing (Chatrabadi Dal) because he said that’s how the member mention. It was clear mistake and made me to confuse from that time. From that onwards I could not think anything clearly because I continue to think that I never provided documentary Bangladesh Jatiotabadi Chatra Dal which is a student organisation. As a result of the interpretation issue or the mistake of clearly identify the organisation my evidence to the Tribunal was significantly affected which might have caused in the eye of the Tribunal that I have provided inconsistent evidence. The confusions which significantly affected my evidence due to the misinterpretation on the part of the Tribunal should not any way affect my credibility and jeopardise my success in my case.

Also provided was an affidavit from [Lawyer A] stamped 16 May 2009, and a letter from [Mr B] dated [in] May 2019.

Country Information

According to DFAT:

According to an earlier DFAT Country Information Report Bangladesh 5 July 2016 , p.14 'senior BNP members appoint JCD members, who must be over the age of 18'. (Jatiotabadi Chatra Dal also known as J.C.D, is the student wing of the Bangladesh Nationalist Party (BNP).

When the Awami League came to power and caretaker government

According to Global Security Zia, head of the Bangladesh Nationalist Party (BNP), stepped down as prime minister on 27 October 2006 when her five-year term of office expired, and she transferred power to a caretaker government that would prepare for general elections scheduled for 22 January 2007.
The 13th Amendment to the constitution required the president to offer the position of the Chief Adviser to the immediate past Chief Justice of the Supreme Court, Justice K.M. Hasan, once the previous parliamentary session expired on October 28, 2006. The AL opposed Justice Hasan, alleging that he belonged to the ruling BNP in the past and that the BNP government in 2004 amended the constitution to extend the retirement age for the Supreme Court judges to ensure Justice Hasan became the Chief Adviser to help BNP win the elections. Justice Hasan declined the position, and after 2 days of violent protests, President Iajuddin Ahmed also assumed the role of Chief Adviser to the caretaker government.
On January 3, 2007, the Awami League announced it would boycott the January 22 parliamentary elections. The Awami League planned a series of country-wide general strikes and transportation blockades.
On January 11, the head of state and head of the caretaker government, President Iajuddin Ahmed resigned as Chief Adviser, and declared a state of emergency in response to political violence and allegations of flaws in the preparation for national elections scheduled for January 22. Under emergency provisions, the government suspended certain fundamental rights guaranteed by the constitution and detained a large number of politicians and others on suspicion of involvement in corruption and other crimes.
With military support, President Iajuddin Ahmed appointed Fakhruddin Ahmed, a former central bank governor, as Chief Adviser to head a new caretaker government. On January 12, 2007, former Bangladesh Bank governor Fakhruddin Ahmed was sworn in as the new Chief Adviser, and ten new advisers (ministers) were appointed. The caretaker government postponed the elections, and in February, new Election Commissioners were appointed. Their mandate was to initiate electoral reform, and specifically prepare a new, unbiased voter registry. Registration for the new voter list progressed in the last half of the year, with the effort running ahead of schedule.
The Emergency Powers Rules of 2007 (EPR), imposed by the government in January 2007, suspended many fundamental rights, including freedom of press, freedom of association, and the right to bail. The anticorruption drive initiated by the government, while greeted with popular support, gave rise to concerns about due process. For most of the year the government banned political activities, although this policy was enforced unevenly. While there was a significant drop in the number of extrajudicial killings by security forces, they were accused of serious abuses, including custodial deaths, arbitrary arrest and detention, and harassment of journalists.
The Emergency Power Rules [EPR] restricted freedom of assembly, freedom of association, and prohibited indoor and outdoor political activities. In September the government eased bans on indoor political gatherings in Dhaka but limited the number of people who could attend and required parties to seek permission from the home ministry to hold meetings.
The government implemented the ban unevenly. For example, in April and May 2007 Ferdous Ahmed Quareshi publicly had meetings in support of a new progovernment party, the Progressive Democratic Party (PDP). Despite considerable press coverage of these events and media editorials questioning their legality under the state of emergency, the government did nothing to stop them. After the easing of the ban on indoor politics, police prevented the pro-Khaleda Zia (and antigovernment) faction of the BNP from reopening the BNP's main Dhaka office. The government permitted other parties, including the AL, to open offices in the capital.
The military-backed government made it clear that it wanted new leadership for both of the country's two main political parties. In early 2007, the administration tried to force both former Prime Minister Sheikh Hasina and her arch-rival, former Prime Minister Khaleda Zia of the Bangladesh Nationalist Party, out of politics. In April, the government tried to exile Ms. Hasina by barring her return from a vacation in the United States. It also tried to persuade Ms. Zia to leave the country voluntarily. The government later backed down, however: Khaleda Zia remained in the country, and Sheikh Hasina returned to a big welcome by her party workers.
Throughout the year 2007, security forces detained approximately 200 high-profile graft suspects. Among those detained were former prime ministers Sheikh Hasina and Khaleda Zia, both of whom were charged in bribery cases dating to their government tenures. Using the Special Powers Act that allows preventive detention, the government detained prominent business leaders. The majority of those persons were then tried under existing anticorruption legislation. Most high-profile cases were handled under the Emergency Power Rules and therefore denied suspects both the right to bail and the right to appeal their cases during the course of the trial.
On July 16, 2007 the government arrested Awami League president Sheikh Hasina on charges of extortion during her tenure as Prime Minister. Hasina was released on parole in June 2008 and allowed to travel to the United States for medical treatment. The cases against her continued. On September 3, 2007, the government arrested BNP chairperson and former Prime Minister Khaleda Zia on charges of corruption. Sheikh Hasina returned from abroad and Khaleda Zia was released from prison to lead their respective parties in the parliamentary election campaign in the fall of 2008.
In January 2008, a reshuffle of the caretaker government took place, which included the appointment of special assistants to help oversee the functioning of the administration.
Municipal elections were held in 13 city corporations and municipalities on August 4, 2008. These elections were judged free and fair by international and domestic observers. The Election Commission registered over 80 million voters in preparation for parliamentary elections, which were held December 29, 2008. The Awami League swept to a landslide victory in what domestic and international observers declared a free, fair and credible election. The caretaker government ended on January 6, 2009 when Awami League President Sheikh Hasina became Prime Minister.

According to DFAT Country Information Report Bangladesh 2 February 2018:

DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

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.
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).
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.
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’).
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

PRELIMINARY ISSUE

As a preliminary matter, the Tribunal notes that there is a certificate purportedly issued under section 438(1)(a) of the Migration Act at folio 12 of the Tribunal's file 1508439. The certificate stated that information was provided in confidence.
The Tribunal put to the applicant at hearing that information in January 2016 suggested that he was a [Occupation 1], took sick leave and came to Australia, that he had not resigned, had a business and had a connection with Jamayate Islami and a family member was a member of that party.

THE SECONDARY APPLICANT

Movement records indicate that the second named applicant is not in Australia. She departed Australia [in] August 2016. The Tribunal invited the applicants to comment on the fact that movement records indicated the second named applicant is not in Australia and, therefore, cannot be granted a protection visa. The applicant responded stating he accepted that was the case.
The Tribunal is satisfied on the evidence before it that the second named applicant is not in Australia. Therefore, she does not satisfy s.36(2) of the Act and cannot be granted a protection visa.

SUBSTANTIVE ISSUE

The issue in this case is whether the applicants have a well-founded fear of being persecuted for a Refugee Convention reason and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh, there is a real risk that they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In his protection visa application dated 6 December 2012, the applicant stated that he was a member and supporter of the BNP and active member in the student wing of the BNP, that he joined [specified agency] and during his professional career [reported] many Awami League leaders and that due to his political activities and his position as [Occupation 1], he feared returning to Bangladesh. At hearing on 2 May 2019, in addition to these claims, he described how he was repeatedly attacked and also stated that there was a complaint lodged against him in relation to land by his relatives and that he had also been involved with the BNP in Australia since he came. After the hearing, he stated that there was a possibility he would be targeted for extortion because he would be considered as returning from Australia and a wealthy person.

Active member in the student wing of BNP

Firstly, and as put to the applicant at the hearing, the applicant stated in his visa application that he joined the Chhatral Dal (student wing) in [year] when he was 16 or 17 however country information suggests that a person must be 18 years or above to become a member of the BNP student wing. When this was put to the applicant at hearing, he stated that he was involved with the student wing and that when you enrolled in HSC you could be involved in politics, however his earlier evidence in his protection visa application was that he was a member. He also stated that the Awami League came to power in November 2009 and only agreed that the Awami League won the general election in December 2008 when this was put to him. He also stated that he tried to arrange a [Country 1] visa as the result of the Awami League winning the general election however information on the Department’s file indicates that the applicant applied for a [Country 1] visa [from the Country 1 authorities] in Dhaka [in] November 2008 which is inconsistent with this claim. Although the applicant subsequently provided a somewhat vague suggestion that attacks and killing against BNP members started in 2008, that does not overcome the concerns with his initial evidence which was that he tried to arrange a [Country 1] visa as the result of the Awami League winning the general election.
In reaching these conclusions, the Tribunal has also considered that the applicant arrived in Australia [in] February 2010, and lodged his first protection visa application on 5 March 2010 as a dependent of his wife. In addition, in his written application and in sworn evidence before the Refugee Review Tribunal on 7 January 2011, he confirmed that he did not wish to make separate claims for protection and there was no mention of any political or similar claims. The Tribunal finds that in a letter dated 20 November 2011 to the Minister for Immigration, [the applicant] stated that in December 2007 while returning from [a work visit] his mini taxi was involved in an accident and he was taken hospital, threatened in hospital to stop [his work] and stop listing to the BNP leaders. He also stated in 2009 he [reported] AL [Leader A] from Dhaka and that AL became his direct enemy and gave open threat to kill him, they started departmental investigations against him, stopped his yearly increment and reduced his salary and threatened to transfer him to a remote area and AL leaders brought false charges against him in 2009, influenced the press and reported him to the [agency head]. He also stated that the AL present home minister offered him bribes through her supporters and threatened to destroy his career, her supporters threatened to kill him and she influenced [another agency head] to bring false charges against him. However, at hearing on 2 May 2019 when asked how many times the applicant had been threatened before the Awami League came to power, he initially stated the first time he was threatened was in 2008 and then proceeded to describe a number of violent incidents that were not detailed in his letter to the Minister. When he some time later at hearing described the alleged attack in 2007, he stated that he found out that the Awami League was after him because a writer informed him and later community sources told him that. He also stated he did not say that while he was in hospital he was threatened even though his letter to the Minister states that he was.
The Tribunal finds the applicant omitted to provide details of the attacks described at hearing in his letter to the Minister and has provided inconsistent evidence in relation to the alleged attack he sustained in 2007.
In addition, in his protection visa application dated 6 December 2012, the applicant stated that because he had [reported] many Awami League leaders, he became their enemy however at hearing, his evidence in relation to when he was in the [agency] was vague and unconvincing, that is he stated he was employed with the [agency] at the end of 2003 and finished his job after he came to Australia but then said he finished in mid-January 2010 which was before he came to Australia. When asked for clarification, he said he was discharged after he came to Australia but was then unable to remember when he was allegedly discharged, stating it might have been in 2010 or 2011. His evidence as to why he lost his job has also been vague and unconvincing, that is he stated that false cases relating to land and work had been filed against him, and that his step mother and her family members said he had abused his position, had threatened them and then attacked them and they had also complained to the [agency head].
A Document marked final order dated [in] August 2010 (and signed [in] August 2011) states the applicant exceeded leave and gives him 7 working days of receipt of the suspension order to respond and states that his brother received the suspension order [in] August 2011 however another document dated [later in] August 2011 states the applicant was dismissed from service on [date] (which is three days and not seven days after his brother allegedly received the suspension order). A further letter on file dated [in] March 2010 suggests that the applicant had 10 days leave and at the end of that leave on [a date in] February 2010 he did not return to work and that unless he appeared within 24 hours, punitive measures would be taken against him. However, in his letter to the Minister dated 20 November 2011 he stated that the local AL leaders in Australia informed the AL government about his presence in Australia and his protection visa application so the government terminated his job. When asked at hearing about this statement, he said he did not say that however the letter to the Minister is evidence that he did and indeed, his post hearing submission agrees that it is true that the local Awami Leaders informed the government that he was in Australia.

The Tribunal is also of the view that the applicant’s answers in relation to why he allegedly lost his job have continued to change. The Tribunal is also of the view that if the applicant had lost his job, then he would have been able to consistently identify when, why and what happened. In reaching this conclusion, the Tribunal has considered the applicant’s post hearing submission that stated suspension and dismissal are not the same thing however that does not alter the Tribunal’s view that the applicant’s evidence has continued to change.
In relation to the alleged land complaint, he provided a document dated [in] November 2009 from [Mr C] and addressed to [an agency head] that states that a departmental case has been filed against the applicant with the [Court 1] dated [in December 2009]. He also provided a document identified as [a higher court] Form [number] identifying the applicant as the accused with an order number dated [in 2012] stating that the accused was acquitted.
The Tribunal finds that a document dated [in] November 2009 states that a departmental case has been filed with the court [in] December 2009. After hearing, the applicant submitted that it was a typo error however he has not provided any evidence to support that claim. When this was put to the applicant at hearing, he stated that if someone complained then he or she would send a document to the court, the court would send it back to the police station then they would submit a report and file a case but the Tribunal finds that a nonsense and that a document dated [in] November 2009 that refers to a case that has been supposedly filed after the date a document is written is irregular and indicative of fraud. The Tribunal also finds that at hearing, the applicant was unable to talk about the alleged case against him with any certainty, that is he initially stated that a case was pending against him but when put to him that there was a document stating that he, the accused was acquitted, he suggested there were two cases against him.
The Tribunal's overall impression of the applicant's evidence in relation to this alleged land complaint is that he has been making up his evidence as he goes along and that whether he was acquitted or not meant little to him because he was not recalling events that had actually occurred. In reaching this conclusion, the Tribunal has also considered his initial statement at hearing which was that his step mother’s family attacked him in 2009 however there was nothing in his prior evidence including in the GD he allegedly lodged with the [police] to suggest this and when put to him that the Tribunal had not read they had previously attacked him, he changed his evidence and stated they previously threatened him.
In reaching this conclusion, the Tribunal has also considered that in his written application and in sworn evidence before the Refugee Review Tribunal on 7 January 2011, there was no mention of his prior work [in the agency], any family land dispute or any other matter. In addition, in his first protection visa application, he and the second named applicant both stated that he came from a poor family; was unemployed when he got married, and that he later started a [product] business.
In reaching these conclusions, the Tribunal has also considered the various documents that have been submitted in support of the alleged land complaint that include not only alleged court documents but also a translated article from the [a newspaper] and a letter from [Lawyer A] stating he was the applicant’s lawyer however given the Tribunal’s articulated concerns with some of those documents and its concerns with the applicant’s evidence, the Tribunal does not accept those documents are genuine.
While the applicant has accepted that in his previous protection visa application he gave false information about his alleged employment, he said that it was because he was worried the Australian government might think he was a spy and that a student friend had told him to write that he was in private business and had started a [product] business. After hearing he stated that he and his wife were desperate to leave Bangladesh because of the life threats they were receiving, that they met a guy named [Mr D] who told them if he mentioned he worked [as an Occupation 1], he would have been sent back and that his English was very poor and he was not familiar with everything. The Tribunal has considered this however given the applicant’s educational background, level of intelligence as displayed throughout the course of these proceedings as well as his propensity to say whatever is convenient to his claims regardless of the truth, his suggestion that he had a language barrier, did not really understand and accepted advice from a student friend does not ring true.
While the Tribunal has given the applicant the benefit of the doubt and accepts that he was a [Occupation 1], the Tribunal does not accept that the applicant lost his job because of the Awami League or that he genuinely fears harm in Bangladesh for any reason, including any reason associated with his prior work as a [Occupation 1], political affiliation, any family land dispute or any other matter. Neither does the Tribunal accept that he left the [agency] without permission and would face serious harm on return. In reaching this conclusion, the Tribunal has considered the applicant’s documents allegedly in support of his claims that he was dismissed however given the Tribunal’s articulated concerns with some of those documents and its concerns with the applicant’s evidence, the Tribunal does not accept those documents are genuine.
Neither does the Tribunal accept that he will be unable to find work if he returns. This is not only based on the finding that the Tribunal does not accept that the applicant suffered harm in the past, but that the applicant’s own evidence suggests his job continued long after the Awami League came to power. It is also based on the applicant’s ability to overcome many obstacles and adapt to a totally new environment, Australia with what the Tribunal perceives to be intelligence and resourcefulness.
In reaching these conclusions, the Tribunal has considered the information identified in the 438 certificate that suggested the applicant was a [Occupation 1] who had not resigned and that he had a business however this remains allegation only and is not determinative of the applicant’s past or indeed present employment and when the applicant was however asked to comment, he said he had not resigned in Bangladesh because they would have arrested him.
Finally, even though the information identified in the 438 certificate suggested the applicant had a connection with Jamat Islami and a family member was a member of that party and the applicant stated his [specified relative] was a parliament member who belonged to Jamat, the applicant has never claimed this is a reason why he fears returning to Bangladesh.
In summary, the Tribunal does not accept the applicant is credible and does not accept that he was a supporter or involved or a member of the BNP student wing or that he was political in Bangladesh or that he was from a political family. In reaching these conclusions the Tribunal has considered a letter dated [in] April 2019 from [Mr B] on Bangladesh Jatiotabadi Dal Australia letterhead that states the applicant was ex-jcd leader of Bangladesh Nationalist party student wing Jcd [at a specified] college branch 2004-2006 however given that [Mr B] did not know the applicant in Bangladesh and the Tribunal's articulated concerns with the applicant's evidence, the Tribunal is not persuaded to give this letter any weight. The Tribunal has also considered the post hearing submission that stated that the passage of time and the applicant’s mental health issues have affected his evidence, however no medical evidence was provided in support of this submission and the applicant’s alleged mental health issues remain unspecified and undocumented. While the Tribunal accepts that it is plausible that a person may be unable to remember a detailed account of what has happened to them, the applicant omitted to even mention in his letter to the Minister most of the alleged violent attacks described at hearing. In these circumstances, and given the plethora of concerns with the applicant’s evidence, the Tribunal does not accept that the applicant is credible. Neither does the Tribunal accept that the applicant has been attacked in 2007/2008 as claimed or at any other time.

Activity in Australia

At hearing, the applicant stated that he had been involved with the BNP in Australia since he came to Australia however that was not mentioned by him prior to departmental interview on 24 June 2014. When this was put to him at hearing, he stated that he did not have a lawyer and did not realise he had to submit it however the given the applicant’s education and intelligence as displayed throughout the course of these proceedings this does not ring true if in fact the applicant was involved with the BNP in Australia since he came to Australia. The Tribunal has also considered three letters in relation to the applicant's alleged political activities in Australia. The first letter is from [Mr A] Ex [Position 1] of the Bangladesh Nationalist Party BNP Australia on Bangladesh Jatiotabadi Dal Australia letterhead, Inc [registration number], is dated [in] October 2016 and states the applicant is a dedicated activist of the Bangladesh Nationalist Party (BNP) Australia and actively participates in the various party occasions and meetings of BNP Australia and other community events.
Another letter on Bangladesh Jatiotabadi Dal Australia letterhead, Inc [registration number] dated [in] April 2019, signed by [Mr B] as [Position 2] of the Bangladesh Nationalist Party Australia and states that they operate a non-profit organisation, that the applicant is and became a member of BNP Australia in 2010 and is currently [in a position] of Bangladesh Nationalist Party Australia since 2017 till now. A further letter states the applicant was appointed to this position [in] October 2017.
A further letter [in] May 2019 on untranslated letterhead signed by [Mr B] as [Position 2] of the Bangladesh Nationalist Party (BNP) Australia. This states that the applicant was involved with BNP Australia since he arrived in Australia.
The Tribunal has a number of concerns with these letters. Firstly, the applicant arrived in Australia in February 2010 and even though the letter dated [in] April 2019 states he became a member of BNP Australia in 2010, that was not mentioned by him prior to departmental interview on 24 June 2014. When the applicant's delay in mentioning he was a member of this group was put at hearing, he stated that when he wrote to the Minister he did not have a lawyer and did not realise he had to submit it but given the applicant’s education and intelligence, the Tribunal does not believe that.
Secondly, the Tribunal has concerns about this organisation. Firstly its first letter signed by [Mr A] was signed by an ex [Position 1] of the Bangladesh Nationalist Party BNP Australia. When the applicant was asked about this at hearing, he stated that [Mr A] he signed the document as ex [Position 1] because no one was in charge of the group. Evidence also suggests the organisation was and is deregistered with the [Government] Associations Register, even though its letterhead suggests that it is registered.
The Tribunal has concerns about the credibility of an organisation that purports to be registered when evidence suggests it is not. When this was put to the applicant, he stated that he didn’t know if it was registered or not but that everyone knew he was involved.
On the basis of the [Associations Register] that states the organisation's registration was deregistered, the Tribunal has concerns that the organisation has attempted to mislead it in relation to its legal status. While the Tribunal has considered the somewhat garbled explanation from [Mr B] in his letter dated [in] May 2019 which said that before he was elected as [Position 2] the organisation’s registration with fair trading had expired, this does not alter the Tribunal’s view that the organisation has attempted to mislead the Tribunal in relation to its legal status.
The Tribunal also has concerns about the applicant's alleged interaction with this group, that is the initial letter dated [in] October 2016 states that he is a political colleague and a dedicated activist however the letter dated [in] April 2019 states that he was [in a position] of Bangladesh Nationalist youth party (Jubodal Australia) in July 2011-14 and was [in another position] of Bangladesh Nationalist Party Australia since 2017. He also stated at hearing that they would protest if anything happened in Bangladesh.
The Tribunal finds that if the applicant was a member of this organisation since he arrived in Australia and if he had been protesting when anything happened in Bangladesh since that time, then he would have indicated that at departmental interview on 24 June 2014.
After hearing, the applicant submitted that the Awami League continue to monitor overseas BNP members, that there is a strong Awami League group in Australia, that they monitor the BNP activities in Australia and pass messages to Bangladesh and that he holds a position in Australia BNP which is significant and he is not an ordinary member. The Tribunal's overall impression of this group is that although it is (at best) a social group, it is not officially affiliated with the BNP Bangladesh. In addition, the Tribunal's overall impression of the applicant's actual interaction with this group given that he never mentioned it prior to the departmental interview on 24 June 2014 has been minimal. While the Tribunal accepts that he holds a position in this group, the Tribunal does not accept that means much and certainly does not accept that he is now a high profile individual. Taking into account the photos provided with the letter dated [in] October 2016, the applicant may have even demonstrated on one or two occasions but that this has occurred at some stage after the applicant lodged his protection visa application. However, given that the Tribunal does not accept that the applicant was a BNP member in Bangladesh, the Tribunal does not consider his engagement in this group is the result of his political opinion and is not satisfied that he has engaged in this conduct other than for the purposes of strengthening his refugee claim. This also leads the Tribunal to disregard the applicant's engagement in this group in determining whether he has a well-founded fear of being persecuted for one or more of the five Convention reasons in accordance with subsection 91R(3) of the Migration Act since it is not satisfied that he has engaged in this conduct other than for the purposes of strengthening his refugee claim.
In reaching this conclusion, the Tribunal has considered whether the applicant understood at hearing that the Tribunal had raised concerns about Bangladesh Jatiotabadi Dal Australia. The Tribunal accepts that it initially incorrectly stated the organization’s name and as a result, the interpreter also mistranslated the name also. However, the Tribunal is satisfied that the error was detected at hearing, the correct name was put to the applicant and all of the Tribunal’s concerns were again put to the applicant for his considered comments at hearing and in writing after hearing. Indeed, the applicant’s responses both at hearing and after hearing were long and articulate and conveyed to the Tribunal that he understood the issues. In these circumstances, and given the careful backtracking that the Tribunal undertook at hearing, the Tribunal does not accept the adviser’s submission at hearing or the applicant’s post written claims that the applicant was confused or his evidence was significantly affected once the correct name of the organisation and the Tribunal’s consequential concerns were put.

Other claims

The applicant also submitted after hearing that there was a possibility that he would be targeted for extorting money because he would be considered as returned from Australia and a wealthy person however this claim was only made after the hearing and after the applicant had been specifically asked at the end of the hearing if there were any other reasons why he could not return to Bangladesh. At that stage, he did not nominate any other reasons. The Tribunal has already found it does not accept that the applicant has the enemies or issues he has described. In addition, given the many previous opportunities including at hearing that the applicant could have raised his concerns, and given the applicant's lack of credibility, the Tribunal is not satisfied that the applicant is now telling the truth when he states that he fears returning to Bangladesh because there is a possibility he would be targeted for extortion or because he would be perceived to be a wealthy person.
For the reasons given above the Tribunal does not accept that, if the applicant returns to Bangladesh now or in the reasonably foreseeable future, there is a real chance that he will be persecuted for any of the Convention reasons or imputed Convention reasons if he returns to Bangladesh now or in the reasonably foreseeable future. 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).
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 has rejected all of the applicant’s claims in regards to past harm. While the Tribunal accepts that he has participated in a group in Australia, the Tribunal's overall impression of this group is that although it is (at best) a social group, it is not officially affiliated with the BNP Bangladesh. In addition, the Tribunal's overall impression of the applicant's actual interaction with this group given that he never mentioned it prior to the departmental interview on 24 June 2014 has been minimal. While the Tribunal accepts that he holds a position in this group, and may have even demonstrated on one or two occasions, the Tribunal does not accept that means much and certainly does not accept that he is now a high profile individual. Neither does the Tribunal accept that applicant's minimal participation in this group means that the Bangladesh authorities are aware of his engagement. Even if they are aware, and taking into account the DFAT report, the Tribunal is not satisfied that the applicant was political in Bangladesh, is a high profile individual or that he will somehow be imputed with an adverse political opinion or that the authorities will now take an interest in him on his return. Accordingly, the Tribunal is not satisfied that there is a real risk that he will suffer any harm, let alone significant harm as defined in ss.36(2A) and 5(1) of the Act, in the future. Therefore the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk that he will suffer significant harm.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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

The Tribunal affirms the decision not to grant the applicants Protection visas.

Angela Cranston
Member

[2019] AATA 5953

17 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction