1715382 (Refugee)

[2019] AATA 4382

1715382 (Refugee) [2019] AATA 4382 (8 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1715382

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:James Silva

DATE:8 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 08 February 2019 at 6:21pm

CATCHWORDS

REFUGEE – protection visa – Bangladesh – political opinion – Jamaat-e-Islami supporter – forced marriage – disappearance of former girlfriend – false legal proceedings – arson and vandalism – fear of killing – fear of Rapid Action Battalion – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 438
Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
MZAFZ v MIBP [2016] FCA 1081
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a man in his [age range] from Bangladesh.

2. The applicant claims to have left Bangladesh in February 2013. He arrived in Australia [in] March 2013, by boat and without authorisation. He applied for a Protection (Class XA) visa on 20 June 2013.

3. On 8 December 2014, a delegate of the Minister for Immigration refused the applicant pursuant to s.65 of the Migration Act 1958 (the Act). This is an application for review of that decision, lodged on 22 December 2014.

4. On 30 May 2016, the Tribunal (differently constituted, ‘the first Tribunal’) affirmed the decision not to grant the application a Protection visa. The applicant sought judicial review of the Tribunal’s decision. [In] July 2017, the Federal Circuit Court issued an order by consent, requiring the Tribunal to reconsider and re-determine the application for review according to law, on the basis that the first Tribunal had failed to disclose to the applicant the existence of a non-disclosure certificate under s.438 of the Act. The matter is now before the Tribunal pursuant to the order of the Full Federal Court.

5. The applicant attended a hearing before the current Tribunal on 31 October 2018.     

6. For the following reasons, the Tribunal affirms the decision not to grant the applicant a Protection visa.

   Criteria for a protection visa

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

   CLAIMS AND EVIDENCE

   Claims

8. The applicant claims to fear harm arising from a relationship that he had with a local woman. Her family supported the ruling Awami League (AL) party and opposed his longstanding relationship with her, in part because the applicant’s father supports the Islamist Jamaat-e-Islami (JeI) party. The woman’s family forced her to marry a local man, and she then disappeared. Her family blamed the applicant, and lodged a false case against him and his father. The police and paramilitary Rapid Action Batallion (RAB) are now looking for the applicant. The girlfriend’s family also burned down the applicant’s family home, vandalised and destroyed his shop, and have threatened to kill him. They have also threatened the applicant’s family, whom he claims have been missing since 2013; and threatened some close friends.

9. The applicant fears that the woman’s family, her husband, AL activists and/or the Bangladesh authorities will harm or kill him if he returns to Bangladesh, because of their opposition to their relationship, the false charges and his imputed support for the JeI.

10. The applicant also claimed to fear harm as a failed asylum seeker who departed Bangladesh unlawfully.

    Background

11. The applicant is [an age] year old man from [Village 1], [named area in] Jhikargacha[1] Upazila, Jessore District, Khulna Division. The electoral constituency is Jessore-2. He lived in the village until January 2013. The applicant described his village as large, with an estimated 5,000 or so voters.

    [1] [Deleted.] These are varying transliterations or approximations of the same Bengali place name.

12. The applicant speaks and is literate in Bengali, and has some English. He gives his religion as Sunni Islam.

13. The applicant claims to have attended government schools in his home village for about [number] years. The duration of his education and level attained are not entirely clearly.

    §  He wrote on his protection visa application form that he completed Grade [number] in [specified year] (hence, when he was about [age] years old).

    §  He told the first Tribunal that he completed Year [number], but did not sit for the [examination] that year, because he had been working in his father’s shop. In a subsequent exchange, he said that he was [higher age] years old when he completed Year [number] and started [the next Year]. (If correct, this means that he attended school until [specified] or later.)

    §  At the most recent hearing, the applicant said that he completed Year [number]; the [achievement] is at home in Bangladesh. He estimated that he was [age range] years old when he obtained this. (If correct, this means that he completed his [schooling] in [year range].)

    §  The applicant’s exact periods of study are not critical to this decision. However, they form a useful point of reference in assessing the claimed relationship that forms the basis for his protection claims, and subsequent events. Country information[2] indicates that Year 10 is the final year for secondary education in most schools, completed at about the age of 15-16. For the purpose of this decision, the Tribunal finds that the applicant studied Year [number], when he was about [age range] years old (in [year range]). As noted elsewhere in this decision, it is of concern that the applicant failed to provide clear or consistent information, even in relation to some basic aspects of his life.  

    [2] See, for example - Scholaro.pro: Education System in Bangladesh: and a Bangladesh education system chart found in Wikipedia (used with caution).

14. After completing school, the applicant helped his father in his [shop] in a local market. In about 2002, his father stopped working and the applicant took over the business, running it until January 2013. During the period from 2003 to 2009, he also worked for a [relative], about once a week (on Fridays), [in occupation 1] in local villages. At the most recent hearing, the applicant mentioned that his father also helped him set up his own small [occupation 1] business. The applicant stated that his father owned the [shop], and also used to derive some income from farmland near the family home. In the meantime, however, the applicant’s ex-girlfriend’s relatives have seized this land.

15. The applicant is unmarried. His father is from the village of [Village 1], and his mother from a village some 3-4 km away. He told the Tribunal that he last saw his parents about six months before he departed for Australia (hence, around August 2012). He met them at a cousin’s house one night (the applicant implied that he had been in hiding at the time). He also claimed that his parents have been missing since around 2013 (when he finally left the village and after the family home was burnt down). The alleged disappearance of the applicant’s family is central to his protection claims, and the Tribunal assesses this claim below.

16. The applicant claims to have one [brother], who is likewise missing. He nominated as his contact person a cousin in the village, [Cousin A]; but he did not provide any telephone or email contact details.

17. The applicant presented a copy of his Bangladesh national ID card. He claims to have never held a Bangladesh passport.

18. The applicant claims to have departed Bangladesh [in] February 2013, travelling by boat and without documents to [specified countries], departing there around [date range in] March 2013 for Australia.

    Evidence

19. The Tribunal has before it a range of material, including, relevantly:

    §  Notes from the applicant’s Irregular Maritime Arrival Entry Interview in [Australia] on 16 April 2013.

    §  The applicant’s protection visa application form completed and signed on 11 June 2013, accompanied by a statutory declaration dated 11 June 2013.

    §  The applicant provided a copy of his Bangladesh national ID card, as his only identification from Bangladesh. He submitted to the first Tribunal a copy of his Australian Government Evidence of Immigration Status card.

    §  Protection visa interview (‘Department interview’) held on 27 November 2014, a recording of which is held on the Department file.

    §  The protection visa decision record (‘delegate’s decision record’) of 8 December 2014.

    §  The application for review, lodged on 22 December 2014, has attached to it a copy of the delegate’s decision record.

    §  The applicant attended a hearing before the first Tribunal on 4 May 2016.

    -   The current Tribunal has before it the recording of the hearing, the first Tribunal’s decision and country information (the results of the 2008 national elections) that the first Tribunal drew on at the hearing.

    Hearing before the current Tribunal

20. The Tribunal wrote to the applicant on 8 August 2018 inviting him to appear before it at a hearing on 10 September 2018. On 29 August 2018, he confirmed his attendance. However, on 6 September 2018, he telephoned to advise that he was unfit to attend due to a mental health condition. The Tribunal received copies of several documents dated [in] September 2018, namely a prescription for an anti-depressant, a referral from a GP and a completed GP Mental Health Treatment Plan form. The Tribunal rescheduled the hearing for 24 September 2018.

21. On 20 September 2018, the applicant again advised that he would be unable to attend a hearing, and sent an undated letter from a psychologist stating that he has symptoms that may affect his ability to respond to questions at hearing, and recommending that he be given an opportunity to continue psychological counselling. The Tribunal declined to reschedule the hearing again, for reasons stated in its correspondence. The applicant failed to attend, and the Tribunal dismissed the matter under. S.42A(1A)(b) of the Act.

22. The applicant advised the Tribunal by telephone that he wished to have the application reinstated, and sent the Tribunal two letters, from a doctor and psychologist, opining that he has ‘[a specified condition]’. The Tribunal agreed to reinstate the matter, allowing time for the applicant to continue counselling sessions and medication.

23. The applicant attended a Tribunal hearing on 31 October 2018. It was conducted with the assistance of an interpreter in the Bengali (Bangla) and English languages. The applicant is unrepresented in this matter.

    Non-disclosure certificate under s.438 of the Act

24. The Department issued a certificate under s.438 of the Act, certifying that the information in folios 91-92 of the Department file [number] was subject to paragraph 438(1)(a), as disclosure of it would be contrary to the public interest. The certificate identified the public interest as being that the folios ‘contain information which would reveal internal departmental processes’. In light of the Federal Court decision in MZAFZ v MIBP[3], which considered a s.438 certificate with similar wording, the Tribunal finds that the certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity.

    [3] MZAFZ v MIBP [2016] FCA 1081, Federal Court of Australia, Beach J, VID 461 of 2016

25. The folios consist of two completed Department pro formas.

    §  One contains the applicant’s Boat ID number, and the name, relationship and contact telephone number for a close relative. The form includes corresponding details for another ten persons, all identified only by their Boat ID numbers.

    §  The second form contains the applicant’s Boat ID number, and a telephone number with a Bangladesh country code, with a tick that appears to show that an officer called the number. Details appear for another seven persons, also identified only by their Boat ID numbers.

26. The Tribunal is of the view that this information is not relevant to the review, as the applicant’s contact telephone numbers in Bangladesh have no part in its assessment of his protection claims, and nor do the contact details of other passengers on the boat code-named [name].

27. The Tribunal advised the applicant of the existence of the certificate; its view that the certificate was invalid; and its view that the information was in any event not relevant to the review. The applicant noted this without comment. In these circumstances, the Tribunal has decided to take no further action. It notes that, in any event, the Privacy Act 1988 and Australian Privacy Principle 6 governing ‘personal information’ may apply in the present case to prevent the Tribunal from disclosing the other persons’ contact details to the applicant, as they could be reasonably identifiable to him by their Boat IDs.

    Country of reference / receiving country

28. The applicant claims to be a national of Bangladesh. He claims not to have a Bangladeshi passport[4], but he provided his national ID card showing his name and date of birth. He speaks Bengali, and is familiar with Bangladesh. On the available evidence, and in the absence of any contrary information, the Tribunal finds that he is a national of Bangladesh. Bangladesh is therefore the country of reference for the purpose of his assessing the applicant’s refugee claims, and the receiving country when assessing his eligibility for complementary protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    [4] The Tribunal assesses this claim below.

    Assessment of claims: credibility

29. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This, in turn, requires the Tribunal to assess whether the applicant’s claims are credible. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[5]  However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[6]

    [5] MIMA v Rajalingam (1999) 93 FCR 220

    [6] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547

30. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. As noted in the Guidelines, the Tribunal must consider the overall consistency and coherence of an applicant’s account. A Tribunal may reach an adverse view of an applicant’s credibility, having regard to the evidence as a whole, and whether any contradictions, inconsistencies and omissions are material to the claims. In the present case, the Tribunal takes into account that the applicant arrived in Australia almost six years ago (at the date of this decision); he has participated in several interviews over a period of time; and he may be understandably anxious about the outcome of this review and, ultimately, the resolution of his migration status in Australia.

31. The Tribunal has broad concerns about the applicant’s credibility:

    §  The applicant said he was unable to recall many aspects of his personal and family circumstances, and his protection claims. Throughout the review, to both the first and current Tribunals, he was uncertain about key aspects of his claims and, in some instances, did not appear to have turned his mind to basic questions (such as how to enquire about the whereabouts of his missing family, or his claimed persecutors’ political and business interests). 

    §  In his original statutory declaration, the applicant stated that he is not good with dates, and that he had tried his best to provide the correct sequence of events.

    -   The Tribunal attempted to gain some sense of a timeline, by cross-checking various alleged incidents, with reference to the applicant’s age, his school year, the intervals between events and his recollection of what year they occurred. The Tribunal’s goal was to form a view on the claimed sequence of events and causality, rather than a precise chronology.

    -   Even allowing for this, the applicant’s estimates of when key events occurred were vague and changeable, and he had difficulty relating individual claims to one another. For instance, his estimates of when his ex-girlfriend’s family discovered their relationship spanned a period of some five years. The Tribunal is not satisfied that the applicant’s uncertainty is attributable to any memory problems or difficulties with broad concepts of time. Rather, it reflects poorly on his credibility. His account was so muddled that the Tribunal is not prepared to accept at face value that he was in fact speaking from personal experience.

    §  The Tribunal is also concerned that the applicant sometimes avoided giving direct answers, but instead recounted aspects of his protection claims in a discursive manner. It recognises that such evidence may reflect an applicant’s nervousness at hearing, a lack of strong presentational skills and/or an eagerness to highlight one’s case. However, in the present instance, the Tribunal considers that he was seeking to evade questions aimed at testing the veracity of his claims. 

32. The applicant’s claims rely in large part on information that two persons allegedly gave him: (a) his cousin, [Cousin A], who remains living in the village; and (b) [Ms A], his ex-girlfriend’s ([Ms B’s]) close friend. For instance, he claimed that [Ms A] acted as a go-between for him and [Ms B]. [Ms A] used to keep in touch with the applicant by telephone, and she gave him information critical to his protection claims, such as: (a) an account of the discussions between [Ms B] and her new husband; (b) the fact that [Ms B’s] parents had lodged a General Diary against him and his father, including the terms of the complaint; and (c) advance notice of [Ms B’s] relatives’ plans to burn his family home while the whole family was in it, and also to kill the applicant.

33. In a similar vein, the applicant told the Tribunal that his cousin [Cousin A] told him [Ms B] has now returned to her family home, living there in secret; and that her family are now planning to kill him ([Cousin A], as well as the applicant). Furthermore, he claimed that [Cousin A] has confirmed to the applicant that his family remains missing (since 2013), and that he ([Cousin A]) will contact the applicant if there is any news.

34. Given [Cousin A’s] and [Ms A’s] central role in the applicant’s protection claims, as his source of critical information, the Tribunal asked for details of any ongoing contacts with them. The applicant replied that he is afraid to initiate contact with them, and in the case of [Ms A], he has now lost her contact details. The Tribunal found the applicant’s responses to be brief and uninterested. Also, he shed little light on how [Cousin A] and [Ms A] were privy to the information they relayed to him (such as [Ms B’s] parents’ plan to burn down the family home). In the Tribunal’s view, the applicant’s claimed reliance on information from his friends is contrived. It does not accept uncritically any of the information that the applicant claims to have received from these sources.   

    Mental health issues

1. As noted above, the applicant has flagged memory problems, but more recently suggested that there are underlying mental health issues.

   §  The statutory declaration of 11 June 2013 refers to his limited ‘ability to recall dates’, and his focus on presenting his claims in chronological order. He does not refer to any broader memory or mental health problems.

   §  At the Department interview on 27 November 2014, the representative drew attention to general principles of assessing credibility, but did not allude to any mental health issues.

   §  Before the first Tribunal, the applicant said on multiple occasions that he could not remember aspects of his past experiences in Bangladesh. He did not present any medical evidence to suggest that he had poor memory function as a result of any mental health issues. 

2. As noted above, the applicant presented to the current Tribunal several letters from a GP and psychologist. A brief summary of these follows:

   §  [In] September 2018, a GP referred the applicant to a psychologist, [Psychologist], requesting an opinion and management of [a specified condition]. On the same day, the applicant received a prescription for an anti-depressant, and his GP completed a Mental Health Treatment Plan for him.

   §  The applicant attended consultations with [Psychologist A] on 8 and 15 September 2018. A psychological test[7] resulted in scores showing that the applicant had the ‘extremely severe range of [specified] symptoms’ in the first week of September 2018. [Psychologist A] noted that his symptoms had an adverse effect on his memory and attention, which in turn ‘may impact his ability to respond to questions [at a hearing] in a coherent manner’.

   §  [Psychologist A] wrote further letters on 2 October and 8 October 2018. She noted the applicant had not sought medical assistance prior to [September] 2018, and that he had since attended a total of four consultations. The applicant continued to take the anti-depressant as well as a medication for [medical] problems. She linked his [condition] with ‘events while he was overseas’, and wrote that his further suffering (presumably his uncertain migration status or separation from his family) has caused [other conditions]. She described various symptoms, such as [specified symptoms]. She added: ‘He is afraid to return to his home country as it is still not safe for him to return.’ She wrote that the applicant has been socially withdrawn for several months; that he had been unable to work (from 20 September to 8 October 2018); and that, on the day of his first scheduled Tribunal hearing, he was anxious, distressed and unable to leave his bed or home. She recommended that he obtain further counselling, as well as specialist advice from a legal representative (for his protection visa application) and a psychiatrist.

   [7] DASS 21 is a self-administered quantitative measure of distress, assessing depression, anxiety and stress. It requires a person to answer 21 questions, using a four-point rating scale. It is not a tool for clinical diagnoses.

3. The main focus of these medical reports appears to have been to support the applicant’s wish to have the Tribunal hearing dates rescheduled and, following the Tribunal’s initial dismissal of his application for non-appearance, to have it reinstated. An important second point was to underscore that he has memory problems. Going further, [Psychologist A] suggests that these are linked with past events and, as she briefly stated on 2 October 2018, [a specific condition].

4. The Tribunal accepts the professional opinions of the applicant’s GP and his psychologist that the applicant presented with a number of self-reported symptoms, and that they found these symptoms to be consistent with [his specified conditions]. The Tribunal takes into account, however, that the applicant did not seek assistance until more than five years after first arriving in Australia and then, just days before he was due to appear at the Tribunal. [Psychologist A] indicated a link between the symptoms and the applicant’s (claimed) past experiences in Bangladesh, and his future fears. The Tribunal accepts that the applicant related at least some aspects of his protection claims to [Psychologist A], in a professional setting. However, there is no evidence to indicate that she explored or critically assessed the claimed past events in Bangladesh, or indeed that she has relevant expertise to do so. In these circumstances, the Tribunal places little weight on her additional comments when assessing the veracity of the applicant’s protection claims.

5. At hearing on 31 October 2018, the applicant advised that he was feeling fine, and was happy to proceed with the discussion. The Tribunal invited him to ask for a break if he needed one. The applicant said that he is receiving ongoing medical treatment, adding that he sometimes finds it hard to remember things. The Tribunal is satisfied, based on the applicant’s oral evidence, the written reports and its observation of him at hearing, that he was able to present his claims and evidence effectively.

   Relationship with [Ms B] and its consequences

   Relationship

6. The applicant has consistently stated that his protection claims arise from a relationship with a girl named [Ms B], from a nearby village. He provided some background and information in his statutory declaration, at the Department interview and at the Tribunal hearings.

   §  The applicant claimed that he and [Ms B] grew up together, as they went to the same school in [Village 1] village. [Ms B] was about three years younger than the applicant.

   §  The applicant wrote that [Ms B] is from the nearby village of [name], some 4½ km from his village. She went to school in [Village 1]. Her family arranged for a driver to bring her to school, and collect her afterwards.

   §  They started a relationship in school. At first they started spending more time with each other; later they developed romantic feelings. The applicant’s guess of when the relationship started fluctuated widely. He wrote that it began in about Grade [number] (if correct, this would have been when he was around [age] years of age, hence in around [specified year]).[8] He told the first Tribunal that it was around the time he started secondary education, in around Grade [number range] (hence when he was around [age range], in around [year range], when he was about [age range]). Before the current Tribunal, he said that it started when he was perhaps [age range] years old (which he linked with Grade [range], although this does not appear to be correct).

   §  The Tribunal found the applicant’s evidence about when the relationship started to be confused, but he appears to have settled on the age of about [age range] (hence, in around [year range]). If so, [Ms B] would have been about [young age range] at the time.

   [8] See Scholaro.pro: Education System in Bangladesh: >

   The applicant described his relationship with [Ms B]. He told the Tribunal that they used to spend time together during breaks and after school.

   §  [Ms A] often visited his family home. She used to tell her driver that she was visiting a friend; she would then return to the school to be picked up. He guessed that she had been to his home hundreds of occasions (perhaps 500-600 times). His mother was fond of [Ms B].

   §  The applicant said that he also used to visit [Ms B] at her home, at least before they were in a ‘relationship’. Sometimes he accompanied [Ms B] home from school, and sometimes he used to make the trip by bicycle to see her. He met her parents and had conversations with them, usually her mother. He occasionally saw her father at home, although he also saw him at the market sometimes.

   -   The applicant emphasised that [Ms B’s] family is rich and influential. He named her father, and said he is involved in the Awami League and some business. The applicant did not know what kind of business this was (despite the claimed duration of his relationship with [Ms B]). When pressed, he said that that it could be in [two industries], but he was not sure. The Tribunal flagged its serious concerns about the applicant’s vagueness about [Ms B’s] father, given the claimed duration of the relationship and the father’s significance as his claimed persecutor.

   -   The applicant said that [Ms B] has [number] brothers. He met two of them and knows them by their first names, but he had no further details.

   §  The Tribunal wondered how it was that he, as an unrelated male three years older than [Ms B], was invited into [Ms B’s] home, from when she was just [young ages]; and how it was that her parents and brothers did not discover the romantic attraction earlier. He replied that they were ‘classmates’, despite the age gap, and that this provided cover for him to come by her home. The Tribunal was unable to obtain any further insights into this arrangement, apart from the applicant’s later comments that her father disapproved of the visits.

7. Throughout his primary application and review application, the applicant has revealed only the barest of information about [Ms B]; about the conduct of the relationship; and about surrounding circumstances, such as her father’s work, or details of her brothers. Although the applicant told the Tribunal that [Ms B] ‘proposed’ to him when he was young, he gave no persuasive evidence that he or [Ms B] had made plans for the future.  

8. The Tribunal appreciates that the applicant’s and [Ms B’s] relative youth, the passage of time and the applicant’s (claimed) separation from her over the past ten years may have affected his recall. However, it considers it telling that, even after a claimed relationship of some four to six years, during which they visited each other’s homes, and met each other’s families hundreds of times, the applicant had so little to say about her father and his occupation, and her brothers (of whom he named only two). This is of particular concern given the applicant’s claim that these people are his alleged persecutors in Bangladesh.

9. These concerns lead the Tribunal to doubt that the applicant was ever in a relationship, as claimed. (The Tribunal’s findings on this issue are below.)

   Discovery of the relationship by the parents

10. The applicant told the Tribunal that his parents realised that the couple was in a relationship (and not merely classmates) after [Ms B’s] parents told them. In response, his father proposed that the couple marry, but [Ms B’s] parents did not agree to that.

11. The applicant’s account of when [Ms B’s] parents discovered the relationship was vague. He thought it was about four, five or even six years after he and [Ms B] had been going out. He was in Year [range] at the time, and aged perhaps [age range] (hence in [specified years]). Again, the applicant’s indication of when the relationship began, how long it lasted (before the couple were forced to stop seeing each other), what school year the applicant was in when that happened, and how old he was, do not match up. Moreover, the Tribunal finds it surprising that the applicant could not recall when [Ms B’s] parents discovered the relationship with some clarity, whether by reference to his age at the time, or what school year he was in; or by anchoring it to some other events happening in his life.  

12. When asked when he last saw [Ms B] in person, the applicant said this was in about 2008/2009. In other evidence, however, he said that her brothers threatened to kill him in about [earlier years], after finding out. In other words, the applicant estimated that [Ms B’s] family discovered the relationship sometime between [specified years] (according to his earlier evidence) and the period [later years] (when he was some [wider age range] years old). The applicant’s inability to be more precise adds to the Tribunal’s already strong doubts about the claimed relationship.

13. The applicant claims to have visited [Ms B’s] home on many occasions, ostensibly as her ‘classmate’, over a period of four or more years. The Tribunal wondered what alerted her parents to finally discover the relationship. He replied obliquely that her father used to look at him (the applicant) in an unfriendly, even aggressive manner, and he told [Ms B’s] mother to stop the applicant’s visits. [Ms B’s] mother used to explain that they went to the same school (implying that it was an innocent friendship). The applicant said that they gradually came to realise what was going on, by noticing the way that he and [Ms B] were interacting.

14. The applicant conveyed no sense that he was recalling (or trying to recall) any moments or developments that finally led [Ms B’s] parents to figure out that he and [Ms B] were in a relationship; that there was any discussion following on from this, with [Ms B] or himself; or that there were any other surrounding events. In the Tribunal’s view, the applicant’s claim that [Ms B’s] family discovered the relationship lacks credible context and supporting detail. The Tribunal is not satisfied that the applicant was drawing on personal experience at all.

    Ongoing relationship

15. The applicant said that, in any event, the relationship continued until about 2012, as their mutual friend [Ms A] acted as a go-between. She used to pass messages between the two, by telephone. Not surprisingly in the circumstances, the applicant was unable to provide any corroboration or further details of this claim.

16. Given the extent of its concerns about [Ms B’s] identity and her family circumstances, the conduct of the relationship and its later discovery, the Tribunal finds that there was in fact no such relationship.

    [Ms B’s] forced marriage and disappearance in September 2012

17. The applicant claimed that in 2012, [Ms B’s] parents forced her to marry a man named [Mr B].

    §  In his statutory declaration, he wrote that [Ms B’s] parents forced her to marry in September 2012, as they disapproved of her relationship with the applicant. He attributed this to the family’s different political allegiances. [Ms B’s] family are strong supporters of the ruling Awami League (AL), whereas the applicant’s father is known to be a supporter of the Islamist party Jamaat-e Islami (JeI).

    §  At the most recent hearing, the applicant said that [Ms B’s] parents had discovered the relationship some years earlier (he estimated some five to seven years),

18. The Tribunal accepts that arranged, and sometimes, forced marriages occur in Bangladesh. The applicant suggested that in this case, [Ms B’s] parents had been aware of their relationship; and felt frustrated by her refusal to marry a man other than the applicant. Finally, they forced her to marry [Mr B]. However, the Tribunal does not accept at face value, or on the basis of information that the applicant allegedly has from [Ms A], that her parents were motivated to force her into a marriage because of a relationship that had effectively ended some five or more years earlier (even if they suspected that [Ms B] was still attached to the applicant).

19. According to his evidence, [Ms A] told him that [Mr B] found out about the applicant’s relationship with [Ms A], and confronted her about it.

    §  The applicant wrote that [Mr B] probably found out the relationship through neighbours of the applicant’s and [Ms B’s] families taking about it, in other words, through word-of-mouth.

    §  According to [Ms A], [Mr B] asked [Ms B] if the stories were true, and she replied with words to the effect: ‘I still love [the applicant]. As long as I live, I will love [him] and I will be unable to live without him’.

20. The applicant claimed that [Ms B] disappeared around the time of her reported argument with her husband.

    [Ms B’s] recent return home

21. At hearing, the applicant told the Tribunal that his cousin [Cousin A] informed him that [Ms B] has now returned to her village, and is living with her parents. Her family does not want anyone to know that she is there, and she is confined to their compound. She is still married to [Cousin A], but they are separated. She reportedly refuses to live with anyone else (implicitly, anyone apart from the applicant).

22. The applicant stressed that [Ms B’s] parents are powerful, and can act with impunity. In other words, he suggested that [Ms B’s] reappearance has no impact on the criminal allegations made against the applicant that he is responsible for her disappearance.

23. The Tribunal has significant problems with this claim, as presented. Even if it were to accept that the applicant was in a relationship with [Ms B], that she disappeared in 2012 and that her family held the applicant responsible (none of which it accepts), the Tribunal does not believe that the applicant’s [Cousin A] has inside knowledge of what is going on inside her family home, and her relatives’ plans to continue pursuing the applicant. The Tribunal finds this to be contrived, and rejects this claim.

24. The Tribunal’s rejection above of the applicant’s claimed relationship with [Ms B], and its adverse view of his credibility, lead it to also reject his claims that they were stopped from seeing each other; that her family forced her to marry another man (to finally put an end to her strong devotion to the applicant); that her new husband argued with her; and that she disappeared following these arguments. The Tribunal also does not accept that [Ms B] returned in recent years, that her family is isolating her, and that the applicant is anguished that they remain apart.

    The applicant’s political profile

25. The applicant claims that [Ms B’s] family are strong supporters of the ruling AL, and wealthy and influential. His father, on the other hand, is a supporter of the JeI.

26. The applicant’s main protection claim arises from the circumstances of the (now-rejected) relationship with [Ms B], her family’s opposition to it; and their pursuit of him and his family. His evidence hinted at various reasons for their disapproval, such as a wealth discrepancy, social standing and personal factors ([Ms B’s] father did not look at the applicant in a friendly way, even before he knew of the relationship).

27. However, from the time of his first statutory declaration in June 2013, the applicant said that political factors loomed large. [Ms B’s] family opposed their daughter/sister being together with a JeI supporter, and their political connections meant they had real power. As such, they had a lasting animosity towards the applicant and his family. They had the political clout and influence to garner support from the Bangladesh authorities (such as the police and RAB), and to act with impunity (for instance, in threatening to kill the applicant).

28. The applicant has given differing accounts of his and his family’s political interests, at various points since his arrival in Australia.

29. At his Entry Interview, in April 2014, he is recorded as having stated that neither he nor any family members have an association with any political group or association.[9] At the most recent hearing, the applicant acknowledged that he had said that and that he had only mentioned political factors later. He has given various reasons for this early omission.

    §  At one point, he stated that he did indeed mention his father’s political allegiance at that first interview, but the interpreter, who was an ethnic Rohingya, may have failed to convey that point. The applicant has not provided any further examples of language problems at that interview, and the Tribunal is therefore sceptical about this comment.  

    §  The applicant also claimed that he deliberately omitted this information because he was scared. This obviously contradicts his previous comment. While the Tribunal understands that JeI supporter or family members might be circumspect about this, both domestically and when visiting Western countries, it does not accept at face value that the applicant censored his statements at the Entry Interview.

    §  The Tribunal notes the need for some caution in relying on this interview, given that it occurred not long after the applicant’s arrival in Australia. Even so, it is unimpressed by the applicant’s inconsistent evidence as to whether or not he mentioned politics (given that he is now emphasising it), and the reasons that he provided. The Tribunal is concerned that he added a political dimension to his statement in mid-2013 simply to bolster his protection claims.

    [9] The Tribunal refers to the delegate’s decision record, a copy of which the applicant provided with his review application.

1. The applicant has provided some information about his father’s claimed JeI allegiance, and his family’s association with it through his father, in successive statements, the Department interview and the first Tribunal hearing.

   §  He claims his father supports JeI, and [Ms B’s] family (and by implication, other locals) know this.

   -   The applicant told the delegate that his father had been a member of JeI and had been involved in activities such as meetings and programs. He told the first Tribunal member that his father went to local JeI meetings and processions.

   §  The applicant wrote that he personally knows nothing about politics and holds no political affiliation.

   §  The applicant claimed that his father has never discussed JeI politics with him, but he encouraged the applicant to attend JeI rallies. The applicant knows and disapproves of JeI’s reputation for violence, and therefore refused to go along with his father’s requests.

   -   At the Department interview, the applicant said that he nonetheless used to support JeI ‘behind the scenes’, by voting for them (but not attending public meetings or the like). He had also participated in some political discussions at home. He told the first Tribunal that he voted for the JeI in the 2008 parliamentary elections. However, he did not know that the JeI had held his local seat prior to that election.

   §  The applicant claims that, irrespective of his actual involvement in JeI, [Ms B’s] family (and by implication, other locals) perceive him and all family members as being JeI supporters, because of his father’s profile.

2. At the hearing in October 2018, the Tribunal asked broader questions about the family’s religious practice and background. The applicant said that his father was a kind of local JeI ‘leader’, in that he used to attend a small group in the village and socialise there. People used to come up to him and talk. Asked about his own religious background and schooling, the applicant said that he went to a government school. His father had wanted him to attend a religious school (madrassa), but the applicant opted instead to go to a government school. In terms of religious practice, the applicant said that his father taught him to pray five times a day, and he knows the surahs  (chapters of the Koran), but he is not conversant with the Koran itself.

3. The applicant also explored with the applicant the political background of [Ms B’s] family, as ‘strong supporters of the AL’, given his claim that this motivated and enabled their violent pursuit of him and his family. At hearing, the applicant described [Ms B’s] father as ‘a leader’ in the AL, but could not provide further details.

4. The Tribunal takes into account that, where an applicant professes to have no political interests, he or she may not pay attention to the activities of others. In the present case, however, the Tribunal is concerned by the applicant’s initial statement that he and his family have no political association at all. As for his father’s claimed involvement in JeI, the applicant’s account of his family background and religious practice, his father’s activities, and his (and his brother’s) attitudes to JeI was sparse and uncertain. For instance, the applicant’s hesitant responses at the most recent hearing to the Tribunal’s enquiries about his schooling and associated religious education strongly suggested that he did not in fact grow up in a devout Muslim family where JeI teachings and principles were encouraged.

5. These concerns, when taken together with the Tribunal’s broader doubts about the applicant’s credibility, lead it to reject the applicant’s claim that his father is a JeI supporter; that the applicant and his brother were encouraged to follow the party; and that the applicant voted for the JeI and his brother participated in some events. The Tribunal also does not accept that people in the area know his father is a JeI supporter, and that the family is imputed with a political opinion, through their association with their father.

6. Similarly, the Tribunal does not accept that the applicant was in a relationship with a young woman whose father was a strong AL supporter and/or local leader, and who was motivated to pursue the applicant and his family at least in part because they do not support the AL in this manner, or because they are known JeI supporters. The Tribunal prefers the applicant’s initial advice on arrival in Australia, namely that he has no political interests.  

   The applicant’s adverse experiences

   Earlier problems

7. The applicant has claimed that, after [Ms B’s] family discovered the relationship (hence in perhaps 2006/2007), they started to cause him problems.

   §  At the Department interview, he claimed that after they found out, they used to ‘torture’ him; that is, they threatened and tried to beat him.

   §  Before the first Tribunal, he said that after discovering the relationship, the family stopped [Ms B] leaving the house and forced her to focus on her studies. Around this time, they also actually beat him up (not simply try to do so).

   §  At the first Tribunal hearing, he also said that [Ms B’s] family had caused him problems in 2011, after she refused to get married. (In other evidence, however, the applicant indicated that [Ms B] had in fact got married in 2011.) He presented a new claim, namely that in 2011, her family came and vandalised his shop, for that reason. They completely destroyed it the following year, in 2012. As for his earlier advice that he had been operating the shop until February 2013, he said that he had been running it, but ‘not in a good way’.

8. At the most recent hearing, the applicant said that after 2006/2007 (after discovering the relationship), [Ms B’s] brothers threatened to kill him, drawing sharp knives to scare him. They also caused damage to the shop on many occasions.

9. The Tribunal does not accept any of these claims. The applicant has given uncertain, changeable evidence, unsupported by detail or corroboration. Asked at hearing how he managed to live in the village and run his shop until early 2013, in such conditions, he responded obliquely that he had some people working for him in the shop, but even so, his opponents came used to vandalise or loot it. (The applicant then fast-forwarded to events following his departure from [Village 1], such as the alleged demolition of his shop, and the seizure of the family’s land.) The Tribunal finds that the applicant did not come to the adverse attention of [Ms B’s] family members, or anyone else, prior to mid-2012.

   Events in January/February 2013

10. The applicant claims that in about February 2013, [Ms A] warned the applicant that [Ms B’s] parents held him responsible for [Ms B’s] disappearance, and would definitely kill him if they found him. She said that they planned to burn down the family home during the night while the family was sleeping there. On hearing this advice, the applicant decided to flee [Village 1] and go to Chittagong.

11. At hearing, the applicant claimed that [Ms B’s] family lodged a complaint to the RAB, with a view to having him killed in ‘crossfire’ (a euphemism for extrajudicial killing), and meanwhile, [Ms B’s] brothers were looking for him with guns and a big knife. He nonetheless managed to escape. He went on to claim that the brothers, angered, hired people to hunt down the applicant and to bribe local police (presumably in order to be able to affect a contract killing). 

    Criminal allegations against the applicant in 2012/2013

12. The applicant claimed that, after [Ms B’s] disappearance, her family lodged a General Diary (GD) against him and his father. A General Diary is essentially a police incident report entered in a register at the local police station. It may form the basis for further legal proceedings, such as a complaint, investigations and eventually charges.[10][11]

    [10] Law Help BD: Some practical tips and tricks to file a General Diary:

13. According to his evidence, [Ms A] gave him further information about this legal action:

    §  The GD complaint alleges something to the effect that the applicant is disturbing [Ms B], and not allowing her to be with her husband.

    -   The applicant denies that this is the case, as he has had no contact with [Ms B] after her marriage. He claimed that the issue no longer concerned his past relationship with [Ms B], but rather was politically motivated, because of his father’s support for JeI.

    §  [Ms A] also learned that the local police have transferred the matter to the Rapid Action Batallion (RAB). Country information indicates that the RAB is an elite anti-crime and anti-terrorism branch of the Bangladesh Police, which has faced public and international criticism for extra-judicial killings.[12]

    [12]Banglapedia On-line: Rapid Action Batallion >

    The Tribunal has significant concerns with this claim. First, the Tribunal has rejected above the claims that there was a relationship; and that [Ms B] disappeared after her husband discovered her past relationship with the applicant. Second, it does not accept that the applicant learned through [Ms A] the details of the exchange between [Ms B] and her husband. Third, the Tribunal also does not accept that [Ms A] was privy to information about the General Diary, or its referral to the RAB. Fourth – and importantly - the applicant continued to live and work in the village until early 2013, four months or more after [Ms B’s] alleged disappearance. The Tribunal is not satisfied that the applicant managed to avoid legal action by being in ‘hiding’, by having his employees run the shop in his absence, or through any other precautionary measures.

14. Taking all these concerns together, and given its overall adverse view of the applicant’s credibility, the Tribunal does not accept that the applicant was the subject of a General Diary, any other kind of complaint or referral, or any ongoing action by RAB (including any attempted extrajudicial killing).  

    Plans to kill the applicant

15. The applicant claimed that [Ms A] tipped him off that [Ms B’s] family was planning to take serious action, and she proved correct. Given the adverse findings above, and the applicant’s continued stay in the village until early 2013, the Tribunal does not accept that [Ms A] informed the applicant of any such threats, or that this led the applicant to depart his home area.

    Departure from the village – arson attack

16. The applicant wrote in his statement of claims that he went to Chittagong in February 2013 and stayed there for about five days. He told the Tribunal that he departed at the suggestion of [Cousin A], who also organised his travel to Australia.

    Destruction of the applicant’s home and disappearance of his family

17. According to the applicant’s written claims:

    §  Two days after leaving [Village 1], his cousin [Cousin A] contacted him to say that [Ms B’s] family had burned down the family home. No one was at home when this occurred. On hearing this, the applicant told [Cousin A] that [Ms A] had already warned him that [Ms B’s] family had been planning to do just that.

    §  [Cousin A] then told the applicant that [Ms B’s] family knew he was in Chittagong and would definitely kill him if they found him. Furthermore, the criminal allegations had been referred on to the Rapid Action Batallion (RAB), who had come looking for him.

18. There was discussion at the Department interview, and both Tribunal hearings, of the applicant’s movements round this time.

    §  At the Department interview, the applicant said that after learning that the house had been burnt down, he returned to see it at night. [Cousin A] then told him (again) that his life was at risk, so he went to Cox’s Bazaar (to the south of Chittagong) and departed Bangladesh from that area.

    §  At the first Tribunal hearing, the applicant denied having said that he returned to his village after initially leaving it. He then said that he did in fact return, but ‘not that way’. Later, he said that he could not remember whether or not he returned.

    §  At the most recent hearing, the applicant said that he stayed in Chittagong for a total of two weeks, maybe four. After the house fire, [Cousin A] arranged a hire car to take him from Jessore. The applicant estimated that the trip took about three days. According to Google Maps, the applicant’s home area of Jhikargacha upazila is about 420km, or some 12 to 13 hours by car from Chittagong City; and 620km, or some 15 to 16 hours by car from Cox’s Bazaar.

    -   Asked why he risked returning to the village at all if, as claimed, the RAB was searching for him, the applicant said that they used a hired car, they stopped in the yard of a trusted neighbour, and it was raining heavily. In other words, he implied that the RAB would not have expected him to return. He did not elaborate on the purpose of the alleged trip.

    -   As for his evidence to the previous Tribunal, that he had not returned (or that he could not remember), the applicant said that what he meant was that he did not go back home, because the home had been destroyed.

    -   In further comments, the applicant said that he was actually in the village when the house was burnt down, in hiding with relatives in different places. However, he only learned about it after he arrived in Chittagong. 

19. The Tribunal found the applicant’s account of the alleged arson attack on his home to be changeable and lacking in credibility. For instance, he has given differing evidence as to where he was when it occurred (in the village, or Chittagong), and what his movements were before and after (whether he stayed in Chittagong or returned to [Village 1]). His explanations appeared to be improvised, and were unpersuasive. The Tribunal finds that there was no such arson attack, by [Ms B’s] family or anyone.

    Destruction of the applicant’s shop

20. The applicant did not mention anything about his shop in his Entry Interview or at the Department interview. Before the first Tribunal, he claimed that [Ms B’s] family vandalised the shop in 2011 and finally destroyed it in 2012. As for his other statements that he had continued to run the business until early 2013, the applicant said that, after they destroyed it in 2012, he was able to continue running, ‘but not in a good way’.

21. Before the current Tribunal, he said that he managed to keep running the business through some employees. [Ms B’s] family came looking for him on many occasions, and caused some kind of damage (he suggested that it was looting or minor property damage). It was later that they completely demolished it – even removing the bricks and all signs of a structure – after the house burned down. He variously commented that this happened ‘just after’ the house burned down (hence, in February 2013) or in 2014.

22. The Tribunal finds the applicant’s account of this to be inconsistent, and lacking in context. Against a background of already serious credibility concerns, it does not accept that there was any destruction of his shop.  

    Disappearance of the applicant’s family

23. The applicant has consistently claimed that his parents and brother are missing. Although he linked this with the time that [Ms B’s] family made allegations against the applicant (and his father), in early 2013, he also told the Tribunal that he last saw his family around mid-2012.

24. At hearing, the applicant was briefly upset when asked for details of his family, and the Tribunal observed that he appears to genuinely miss them. However, it is of limited probative value in assessing whether they are in fact missing, or if so, in what circumstances.

25. The Tribunal noted that almost six years has passed since his departure from Bangladesh and the last time he allegedly saw his parents. Asked what enquiries or efforts he has made to locate them, the applicant replied briefly that he has no one to help him. He said that [Cousin A] is unable to help, because he is in danger himself. The Tribunal explored various avenues of enquiry he might pursue, such as residents in his own or his mother’s (nearby) village; political or religious contacts (if, as claimed, his father supported the JeI); business contacts; school friends or former teachers; persons from the local mosque, neighbours, or other trusted locals. In response to the Tribunal’s questions, the applicant said that he uses [social media], but did not make enquiries relating to his parents, in case this revealed their whereabouts to the RAB or others. The Tribunal also asked whether the applicant had thought of contacting the International Red Cross to seek help.

26. The Tribunal found this exchange laboured. It became apparent that the applicant had not in fact turned his mind to any search for his parents and, when the Tribunal suggested possible avenues for enquiry, he was reluctant to discuss these further. Having regard to all these circumstances, the Tribunal does not accept that the applicant’s parents or brother are missing at all.

    Departure from Bangladesh

27. The applicant claimed that his cousin [Cousin A] arranged for his departure from Bangladesh, via Cox’s Bazaar. He explained that, with the RAB looking for him, [Cousin A] knew that he would not be able to leave Bangladesh using a passport, through normal channels.

28. The Tribunal has rejected above the applicant’s claim that the RAB is looking for him. Furthermore, it found the applicant’s account of [Cousin A’s] role in arranging his travel from Bangladesh to be unforthcoming. For instance, the applicant said that [Cousin A] is a businessman, and paid for the applicant’s passage to Australia without expecting to be repaid. The Tribunal considers the applicant’s account of [Cousin A’s] role, funding for the travel and the underlying motives to be unreliable.

29. The applicant said that he could leave Bangladesh normally, with a passport, because the RAB was looking for him. Having already assessed and rejected the applicant’s claim that the RAB was looking for him, the Tribunal does not accept that the applicant was unable to either obtain or use a Bangladesh passport to depart.

30. The Tribunal finds that the applicant left Bangladesh for reasons unrelated to his protection claims, and in an orderly manner. It does not accept that he was unable to obtain a Bangladeshi passport. However, it accepts on the basis that it is plausible that he departed via boat from southern Bangladesh, without documentation, again for reasons unrelated to his protection claims.

    Developments since the applicant’s arrival in Australia  

31. The applicant has variously claimed that his cousin [Cousin A] contacts him only infrequently; he is living in fear, and they both agree that it would be unwise for the applicant to initiate contact. He claims that his family’s whereabouts are still unknown, and he is unable to contact [Ms A]. Meanwhile, he claims that [Ms B’s] family have seized his family property and are now using it.

32. The applicant told the Tribunal that, to his knowledge, the false charges against him are still pending, and the Bangladeshi authorities or [Ms B’s] family could easily trace and kill him.

33. The applicant presented these and similar claims in a somewhat ad hoc manner. In light of the above findings, the Tribunal concludes that none of them are true.

    Summary of findings

34. The Tribunal does not accept that the applicant was in a relationship with a young woman named [Ms B]; that her family opposed the relationship and stopped the two seeing each other; that they forcible married her to another man; and that she disappeared shortly after her marriage, following some kind of confrontation with her new husband. The Tribunal also does not accept that [Ms B] reappeared in 2016, and is now being kept in isolation by her family.

100.   The Tribunal also does not accept that the applicant’s father is a JeI supporter and local activist, or that the applicant is perceived to support the JeI because of his family membership. It therefore does not accept that [Ms B’s] family was motivated to harm the applicant, either because of [Ms B’s] disappearance and/or because of any political enmity they feel towards the applicant and his family.

101.   The Tribunal does not accept that [Ms B’s] father and brothers threatened to assault or kill, or actually assaulted the applicant; that his family registered a complaint with the police and enlisted the RAB to deal with the matter (possibly through extrajudicial killing); that there is any false case against the applicant; that [Ms B’s] family threatened the applicant, his family or other relatives such that they were in hiding; that they vandalised or destroyed the applicant’s shop; that they burned down the family home; that they have seized and now occupied the property; or any associated harm. The Tribunal rejects all associated claims of past harm.

102.   The Tribunal finds that the applicant left Bangladesh in a planned way, for reasons unrelated to his protection claims, and not fearing for his safety.

103.   The Tribunal accepts that the applicant does not have a current Bangladesh passport, but it does not accept that he was prevented from obtaining one.

ASSESSMENT: REFUGEE CRITERION

104.   The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct if he returns to Bangladesh, and relevant country information, whether he has a well-founded fear of Convention-related persecution, now or in the reasonable foreseeable future.

105.   In relation to his future conduct, the applicant impressed on the Tribunal that he fears being subject to false charges, or being killed, but did not give further insights into any plans.

106.   Having rejected the applicant’s account of his relationship, his family’s political profile, his past experiences of ham in Bangladesh and his prospective fears, the Tribunal finds there is no real chance of [Ms B’s] family, the Bangladesh authorities (including the police and RAB) or anyone inflicting serious harm amounting to persecution on the applicant, for any reason.  

107.   The Tribunal has found that the applicant does not currently have a Bangladesh passport, and that he may have departed Bangladesh without a passport (although this is far from certain, given the extent of the Tribunal’s doubts about his credibility). It follows that he would need to obtain a Bangladesh passport or travel document to return there, and that the Bangladesh authorities might come to know or at least assume that he has sought asylum in Australia.

108.   At hearing, the applicant said that this is not really a ‘big issue’ or concern, for him, as his focus is rather on the (now-rejected) claims about RAB’s (and others’) pursuit of him. Nonetheless, taking into account that he is unrepresented in this matter, the Tribunal considers it appropriate to address this issue. As discussed at hearing, the Department of Foreign Affairs and Trade recently advised[13] 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.’

[13] DFAT Country Information Report – Bangladesh, 2 February 2018

109.   The Tribunal infers from this that, even if the applicant left Bangladesh without a passport and even if the Bangladesh authorities were to become aware of or assume that he was returning there after seeking asylum in Australia, there is nothing in his profile or past activities that give rise to a real chance of serious harm at the hands of the Bangladesh authorities.

The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. For the reasons set out above, it does not accept that if he returns to Bangladesh that there is a real chance, now or in the reasonably foreseeable future, of him facing serious harm amounting to persecution, arising from his or his family’s (now-rejected) political profile, any past relationship, or the circumstances of his departure from or return to Bangladesh, or the fact of his having sought asylum in Australia.  The Tribunal does not accept that he has a well-founded fear of persecution for reasons of political opinion (actual or imputed) or for any other Convention-related reason (including his membership of any particular social groups associated with his claims).

110.   The Tribunal finds that the applicant does not have a well-founded fear of persecution for reasons of political opinion or for any other Convention related reason, now or in the reasonably foreseeable future, if he returns to Bangladesh. It is therefore not satisfied that he meets s.36(2)(a).

ASSESSMENT: COMPLEMENTARY PROTECTION

111.   The Tribunal has considered whether on the evidence before it, there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh.

112.   The Tribunal, having found that the applicant was not involved in any conflict arising from a disputed relationship, or different political allegiances, and that he was not subject to any criminal activity, threats or false charges, finds no substantial grounds to believe that he will be subject to significant harm if he returns to Bangladesh.

113.   Implicit in the applicant’s claims is his concern about Bangladesh’s governance and the rule of law, especially in that AL politicians and their supporters can act illegally, with impunity. However, the findings above indicate that these did not affect him directly, and indeed he continued living in his village and running his shop up to his departure from Bangladesh. the Tribunal finds that there is no real risk of the applicant being subject to significant harm as a result of the general security situation in Bangladesh, the political uncertainty, or any associated economic concerns.

114.   The Tribunal has assessed above the applicant’s prospects as a person who may have departed Bangladesh without documents, and who has sought asylum abroad. It finds, on the available country information, no real risk of the Bangladesh authorities inflicting significant harm on him as a person returning to Bangladesh in these circumstances.

115.   For the above reasons, the Tribunal is not satisfied that the applicant’s circumstances give rise to a real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. 

116.   Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm: s.36(2)(aa).

Overall conclusion

117.   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).

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

119.   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 applicant a Protection visa.

James Silva
Member

ATTACHMENT A – RELEVANT LAW

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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.

Refugee criterion

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.

Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

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

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

Mandatory considerations

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

[11] In the Entry Interview, the applicant is recorded as having referred to a ‘court case’. However, given the possibility that the applicant and the interpreter are not familiar with Bangladeshi legal terminology or processes, the Tribunal draws no adverse inferences from any apparent discrepancy.