1730476 (Refugee)

1730476 (Refugee) [2022] AATA 3618 (4 August 2022)

Corrigendum

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Bronwyn Anne Huntley (MARN: 1684691)
CASE NUMBER:  1730476
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Damien O'Donovan
DATE OF DECISION:  4 August 2022
DATE CORRIGENDUM
SIGNED:15 August 2022
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

The words at paragraph 102 ‘In particular:

a. I am not satisfied that the applicant ever occupied an executive position in the BNP;

b. I am not satisfied that the applicant’s brother was threatened by a person in 2014; and’

Should be replaced with ‘In particular:

a.I am not satisfied that the applicant ever occupied an executive position in the BNP; and
b.I am not satisfied that the applicant’s brother was threatened by a person in 2014.’

Damien O'Donovan
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Bronwyn Anne Huntley (MARN: 1684691)
CASE NUMBER:  1730476
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Damien O'Donovan
DATE:4 August 2022
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision under review.

Statement made on 04 August 2022 at 3:01pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – Federal Circuit Court remittal – Bangladesh Nationalist Party (BNP) – subject of false criminal charges – credibility concerns – forged documents – Tribunal’s enquiries – applicant’s response to the adverse information – inadvertent publication of applicant’s identity – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The decision was originally affirmed on review by the Tribunal. However, following an application to the Federal Circuit Court (as it then was) that decision was set-aside and the matter remitted to the Tribunal for re-determination.

Background

2. The applicant is a citizen of Bangladesh.

3. He arrived in Australia [in] August 2009 on a student visa and was already enrolled in [Qualification 1].

4. The course commenced on 27 July 2009 and finished on 24 June 2011. The applicant undertook that study at [Education Provider 1] and on completion was awarded his [Qualification 1].

5. In 2011 the applicant sought a further temporary student visa. The applicant undertook study at the [Education Provider 1] studying for [Qualification 2]. On 23 March 2012 the applicant was granted a further temporary student visa.

6. The applicant subsequently sought a Skilled Graduate Visa. On 10 December 2012, the application was refused. He challenged that decision in the Migration Review Tribunal.

7. [In] August 2013 the Migration Review Tribunal affirmed the decision to refuse the applicant a Skilled Graduate visa. He sought judicial review in relation to that decision.

8. On 4 February 2014 the applicant withdrew his application for judicial review of the skilled visa refusal.

9. On 3 March 2014, just prior to the expiry of his bridging visa, the applicant lodged an application for a protection visa and was granted a Bridging visa C.

The protection visa application

At no point in the period between August 2009 when the applicant arrived in Australia and the date on which he lodged his application for a protection visa did he advise the Department that he was the subject of pending criminal charges in Bangladesh or that he feared persecution if he returned to Bangladesh. Indeed, in his early visa applications the applicant affirmatively denied that he was the subject of pending charges.[1]
[1] See for example the applicant’s application for a student visa dated 22 June 2009, question 56.
The applicant’s protection visa application however painted a different picture.
In his protection visa application, the applicant’s response to the question, ‘why did you leave that country?’ was as follows (errors in original):

Since 2001 I was strongly involve in politics and I supported the Bangladesh Nationalist Party (BNP). I participated lots of activities regarding public awareness and organise people in different national issue and gradually I was being popular among community. As a result of my popularity when our opposition party come to the power, they start false case one after another. Even their supporter threatening me to kill. In this circumstance I hide myself and came to Australia.

In response to the question ‘have you experienced harm in that country?’ the applicant responded ‘no’.
In response to the question ‘what do you fear may happen to you if you go back to that country?’ the applicant responded (errors in original):

Bangladesh Awami League come to the power by election 5^th January 2014. They severe harass opposition party people. As a result our party could not participate in election 2014. They kill lots of our party member without any valid reason. They send prison lots of our supporters that we could not participate in election. They lodge two false case against me. In this circumstances they will never accept me and the government will not accept any opposite party people.

The applicant identified the Awami League and police and the Rapid Action Battalion (RAB) as persons who would harm him if he returned to Bangladesh.
In response to the question ‘why do you think this will happen to you?’ the applicant responded (errors in original):

Opposition party influence police force to lodge a false case against me and I could not stand for prove the true because some of opposite supporter threat me to kill if they see me in open place. My lawyer try to prove I am innocent but influence of government party he failed to prove. For this reason my lawyer gave me suggestion not come back to country until political situation has been changed. One the other hand, some people still threat my family if they see me in open place like before they will kill me.

In response to the question do you think that the authorities of that country can and will protect you if you go back, the applicant responded no and explained (errors in original):

In before our country parliamentary election always operated by caretaker government. But Awami League government change the constitution without parliamentarian support. This is the reason all opposition party people called lots of straik (lartal) last year and for this reason lots of opposite party supporters have been killed (approximately 2000 people) exact information is unknown. After that, they arrange election 5^th January 2014 without opposition party. Many international organisation gave plenty of true report about this election. In this circumstances, the authority will never accept me and will not protect me because I am the opposite supporter. More over, they already lodge false case against me and they influence court to gave decision according to their opinion.

The applicant attached documents to his application which he claimed were copies of court documents reflecting the institutieon of cases against him. He also provided documents which he claimed established that he was a member of the opposition political party, the BNP, and a holder of a reasonably senior position within it.
The applicant confirmed that he still had family contacts in Bangladesh.
The applicant attached a document which was described as a situation description. The applicant stated:
a.He was active in the BNP in Dhaka City South;
b.The Awami League started false cases against opponents and ordered RAB to kill the people listed in those false cases;
c.He moved from Dhaka south to north to hide himself until he got to Australia in the first week of August 2009;
d.Threats against his family continue to be made to stop him going back to Bangladesh.
To corroborate his claims the applicant attached the following documents:
a.A letter from a person called [Mr A] dated 6 February 2014. [Mr A] purports to be a lawyer acting for the applicant with knowledge of his case and threats to his life;
b.A copy of a report to Bangladeshi police submitted by the applicant’s brother concerning threats that were made against him and the applicant in January 2014 while the applicant’s brother was visiting Bangladesh;
c.A character reference from [Mr B], President of the Bangladesh Nationalist Satrodal dated 5 February 2014 confirming his membership of the BNP;
d.Court documents relating to two criminal charges in which the applicant is a co-accused
i.Case No [number] alleging an attack (using weapons and bombs) on a meeting being conducted by the Awami League which occurred [in] February 2009 which resulted in the death of one of the Awami League participants. The applicant was alleged to be involved (February Charge).
ii.Case No [number] alleging a breach of the Explosive Substance Act after a violent incident [in] April 2009 at [location] (April Charge);
e.Two search warrants for the applicant’s arrest issued [in] May 2010 [and] January 2014.

Consideration by the Delegate

The applicant was invited to an interview by the Department and was questioned about his claims on 11 September 2014. He gave a more fulsome account of his activities than was included in his original visa application.
The delegate records in her decision that the applicant stated that his interest in politics developed when he was a student at [College 1] in 1997. It is worth noting that when the applicant applied for a student visa he did not disclose any studies at [College 1] or any post school study except for a [course] in 2007.
The delegate records the applicant as claiming that he joined the BNP in 2001 and was personally appointed to the role of General-Secretary for the BNP branch of [named Thana] in mid-2005.
In the interview the applicant is recorded by the delegate as saying that in the lead-up to the 2008 elections he attended meetings, rallies and campaigned on behalf of the BNP candidate representing the [specified] constituency The delegate notes however (and the applicant does not dispute this) the applicant was unable to recall the name of the candidate he campaigned for.
In relation to the document said to establish that the applicant was a General Secretary of a BNP Branch, the delegate raised with the applicant that the document was signed by [Mr B] at a point in time when media reports indicated that [Mr B] was in prison. The applicant appears not to have resisted the conclusion that [Mr B] was in prison at the relevant time, nor did he offer an explanation as to how the document was obtained.
Based on this fact and that document fraud is extremely common in Bangladesh, the delegate formed the view that the applicant did not hold the position in the BNP which he claimed to hold. The applicant’s claims of actively campaigning for a candidate were also rejected based on his inability to accurately recall the name of the candidate. The delegate did however accept that the applicant was a general supporter of the BNP.
The delegate also records an account given by the applicant of his activities following the Bangladesh general election held on 29 December 2008. He reported to the delegate that at a BNP meeting in March 2009 Awami League supporters attacked BNP supporters as they left a meeting to go home. He escaped by running away. After this incident he was named in two First Information Reports. First Information Reports are the means by which Police bring charges before a court in Bangladesh. The applicant says that charges were laid and that the charges were false.
In the account given to the delegate, the applicant’s account of the dates of this incident and the dates on which he was charged were out of sequence but the applicant explained this on the basis that the events happened a long time ago and it was difficult to remember the details.
The delegate records that the applicant stated at interview that he was notified of the charges via a letter in the mail to his address. The letter received outlined the accusations and that there was a case against him. The notice informed him that he must appear at court in 3-4 months’ time. The delegate noted that the process described was inconsistent with country information about how First Information Reports would be dealt with. The delegate did not accept that the applicant was the subject of false charges filed by Awami League supporters.
The delegate also considered evidence of threats which the applicant’s brother claimed to have received when he was visiting Bangladesh in 2014. The delegate records that at interview the applicant could not explain how the people who made the threats to his brother identified his brother as related to him. The applicant stated that he believed that the threat was made in relation to his political opinions. The delegate did not consider that the complaint letter submitted to police by the applicant’s brother substantiated the applicant’s claim that he was of adverse interest to political groups in Bangladesh.
In summary the delegate made the following factual findings:
a.The applicant is a general supporter of the BNP;
b.The applicant witnessed a violent clash in March 2009;
The delegate rejected claims that:
a.The applicant held the role of General Secretary for the BNP branch of [named Thana];
b.The applicant was the subject of false charges filed by the Awami League opposition supporters in Bangladesh;
c.the applicant’s brother received a death threat in Bangladesh from Awami League opposition supporters looking for the applicant in January 2014.
The application for a protection visa was rejected by the delegate.
The applicant then sought review in the Administrative Appeals Tribunal.

Review in the Administrative Appeals Tribunal

The applicant’s review application was heard on 9 June 2016. Notwithstanding the delegate’s rejection of the authenticity of the documents originally submitted in support of the protection visa, the applicant did not file any additional corroborating material. The only additional evidence submitted to the Tribunal was in the form of oral testimony.
When questioned at the hearing about how [Mr B] signed the certificate confirming the applicant’s senior position within the BNP, the applicant’s answer recorded in the decision is that his brother in Bangladesh ‘may have got the signature from [Mr B] while he was in gaol’.[2] The Tribunal found this response to be implausible and gave the letter no weight. The Tribunal did not accept that the applicant continued to be a member of the BNP after he left college or was an active supporter of the BNP up until 2009.
[2] 1417566 (Refugee) [2016] AATA 4246, [31]
The Tribunal asked the applicant about the origin of the charges laid against him which are recorded in First Information Reports submitted with the protection visa application.
The applicant claimed that in February 2009 action was taken against him during a strike protest. During the protest a number of people were killed. Opposition activists gave false evidence against him. The applicant claimed he was indirectly involved in the protest and had not been involved in any violence.
The applicant told the Tribunal that after the protest he decided to hide himself at his sister’s house in Dhaka. He hid at this sister’s house in Dhaka until he departed for Australia in August 2009.
In relation to the documents concerning the charges, the applicant said that his brother sent them to him in 2014. His brother had obtained them from the courts in Bangladesh. He found out about the charges much earlier though when the police sent a letter to his house when he was still in hiding in Bangladesh and his brother informed him.
The Tribunal rejected the claim that the Awami League or any other person lodged false cases against the applicant and doubted that the court documents were authentic.
The Tribunal did not accept that the applicant was implicated in two false cases against him and did not accept that a warrant was issued against him.
The Tribunal commented adversely on the 2014 letter included with the protection visa application which it was claimed was from the applicant’s lawyer. The Tribunal doubted the veracity of the document on the basis that:
a.it was written in broken English when one would expect a Bangladeshi lawyer to communicate with their Bangladeshi client in Bengali;
b.The letter appeared to be written spontaneously in 2014 for reasons which were not apparent on the face of the document;
c.The letter includes ‘questionable’ content for a lawyer’s letter about the risk of the applicant being killed in crossfire by a Rapid Action Battalion of the Bangladeshi Police, and counsels the applicant to not return to avoid court.
Given the timing and nature of the document the Tribunal gave it no weight.
The Tribunal also considered the claim that the applicant’s brother was threatened in Bangladesh in 2014. The Tribunal noted that the applicant’s brother had left Bangladesh in 2003 and it was implausible that after so many years away he would be threatened as soon as he made a return visit. The applicant agreed that Dhaka had a population of over 15 million people but he claimed that in a person’s own neighbourhood everyone knew each other and would be aware of a person’s presence in the area. The Tribunal nonetheless found that the account of the threats to the applicant via his brother were implausible and did not accept that the threats were made.
The applicant was asked why he did not apply for a protection visa earlier. The Tribunal records him as responding that ‘he intended to obtain a permanent visa through the skilled visa pathway and did not want to apply for protection because he had been through a difficult experience in Bangladesh; he was embarrassed and not really sure about the process. He also claimed that he was aware of an increase in politically motivated violence in 2014.
The Tribunal affirmed the decision not to grant the applicant a protection visa.

Appeal to the Federal Circuit Court

The applicant sought judicial review in the Federal Circuit Court. The application was successful and the application for review of the delegate’s visa application was remitted to the Tribunal for reconsideration.

Remittal to the Tribunal

On 8 December 2017 the applicant was advised that the matter had been remitted to the Tribunal. That letter was accompanied by an information sheet which advised ‘if you have any material not yet provided, which you believe supports your application, including a statement setting out why you disagree with the department’s decision, please send this as soon as you can.’ Nothing was provided in response.
Due to significant backlogs in processing of protection visas the applicant was not contacted by the Tribunal to progress his application until 22 August 2019. The applicant was invited to attend a case conference. The purpose of the conference was set out in the following terms:

The purpose of this Conference is for you to provide your views to the Tribunal on how to conduct merits review of your application for a protection visa, in light of the Federal Circuit Court of Australia’s decision in [case citation redacted].

The Tribunal’s role is to consider and determine your protection visa claim afresh – this means that it must examine all the evidence relevant to the decision of whether to grant you a protection visa and then make a decision. Please be prepared to discuss the following topics at the time listed in this invitation:

(a)What inquiries should the Tribunal make towards determining the reliability of your former lawyer’s letter, signed by [Mr A], from February 2014;
(b)What inquiries should the tribunal make towards the Dhaka Bar Association;
(c)What aspects of the current situation in Bangladesh are relevant to you personally and the criteria for granting a protection visa;
(d)Whether you intend to provide any further evidence towards your membership of the Bangladesh National Party or Chatra Dal;
(e)Whether you intend to provide any further evidence on any adverse events or actions which the Awami League Activists may have taken against you;
(f)Whether you intend to provide any further evidence on any threats which your brother may have experienced when he returned to Bangladesh in 2013/2014; and
(g)Whether you intend to provide any further evidence in support of your application.

This letter was sent by the member to whom the matter had at that point been constituted, Deputy President Humphries. The letter appears on its face to be directed at resolving the issue which was identified by the Federal Circuit Court in [case citation redacted] which was that the Tribunal failed to make an obvious inquiry directed to the applicant’s lawyer in Bangladesh or the relevant bar associations of which that lawyer may have been a member, and that if these had been done it was ‘likely that a number of the issues determined adversely to the Applicant would not have occurred’.[3]
[3] [Case citation redacted], [58].
On the matters of substance, the applicant responded to the Tribunal’s correspondence on 30 August 2019. The letter responded to the Tribunal’s questions in the following terms:
a.As we understand it, [Mr A] has now deceased. It will be next to impossible to verify whether he did, in fact sign the paperwork. At best, either ourselves or the Tribunal could enquire of the Dhaka Bar Assoiciation for samples of his handwriting to confirm whether the signatures at least matched. Or someone could check the prison records on the day in question to see whether [Mr A] had visitors.[4] We would see it as a step too far for the AAT but not out of the question as something DHA or the Applicant would follow up as part of the evidence chain.
b.The situation in Bangladesh has not changed from our client’s perspective. The same government is in power. Our client is still a member of BNP (but being in Australia, not an active one.
c.Our client has already established his membership of the BNP. Is this in doubt?
d.Our client’s evidence concerning Awami League Activists is unchanged. He has been in Australia, and the only family members left in Bangladesh are females (who are not considered to be part of the political process and are generally left alone).
e.Our client’s brother is in Canberra and will be a listed witness for the hearing. As the hearing is de novo we would assume that there would not be anything constituting “further evidence”? If the question is whether our client will be raising new claims, this would very much depend on what questions jog his memory. We do not expect any new claims of significance.
f.Our client is almost certain to provide current evidence on the state of play in Bangladesh, and events that directly affect him.
[4] This appears to conflate to queries about the applicant’s evidence - whether the lawyer’s letter is genuine and whether the document establishing that he is a BNP office holder is genuine.
The applicant also raised a new claim in the correspondence. The applicant noted that notwithstanding that the Federal Circuit Court had issued the decision with a pseudonym, the applicant’s name was used at paragraph [34] of the judgment along with identifying details. The applicant submitted:

…we have to assume (and we humbly submit that the AAT must start from the position that) the Bangladeshi government intelligence services have read the judgment and that they will be working on the basis that the claims are real. This is similar to the DIBP (as it was then) data breach on 11 February 2014 which affected 9,528 PV applicants (at least 86 of whom were given an opportunity to lodge a new PV application) – see Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 (27 July 2016)…

Whilst the breach does not lead to automatic grant of a PV, at a minimum it requires a review of the person’s situation afresh (in essence this is what is happening anyway). We simply draw to your attention that the applicant is now in significant danger based on the detailed claims presumably unintentionally disclosed in HH’s decision.

On 23 August 2019 the Tribunal wrote to the Department of Home Affairs inviting comment on a range of issues including what further inquiries should be made.
On 29 September 2020 the Tribunal followed up with a further inquiry of Home Affairs asking that the Australian Mission in Dhaka be approached to confirm whether [Mr A] is deceased and seeking the views of the local Bar Associations as to the authenticity of the letter from [Mr A]. The Tribunal also sought comments on the likely authenticity of other documents which had been produced.
The documents enclosed included the letter from [Mr A] and the copies of the original and translated court documents provided by the applicant with his original protection visa application.
On 6 November 2020 the Department of Home Affairs provided the Tribunal with the following response:

In relation to Mr Humphries request, we have received advice from post that they have doubts about the authenticity of the letter. It seems unlikely that an advocate would choose to correspond with the applicant in bad English over native Bengali to appraise them of the developments in their court case.

The FIR report [the document initiating police action] looks ok and can be verified through the relevant police authorities if the applicant consents to disclosure of their personal information to the issuing authority (given that protection claims have not yet been finally determined).

Further information was provided by the Department on 10 November 2020 which indicated: that checks on [Mr A] had been conducted by the Department in Canberra and by DFAT at post in Dhaka. The Department was waiting for further confirmation of these checks from Post. The Bangladesh Bar Council had declined to give out or confirm information on the basis of a name only. Additional details, such as a membership number or office address would be necessary.
The Department advised that the Dhaka Bar Association maintained an online directory, but indicated it was not in a position to assess how accurate or up to date it was. It noted that there is a [Name A] listed but no [Mr A]. It further noted “[Name A] is a relatively common name in Bangladesh so we are not in a position to determine the likelihood that this is the same person. A telephone number, membership number or office address may allow direct enquiries to the Dhaka Bar Association”.
It is notable that there were no telephone details or email contact details on the original letter sent by [Mr A].
The Department also advised that the address on the letter from [Mr A] is the address of the Dhaka Bar Association itself. The Department also confirmed that there is no easy way to verify that someone is or is not still alive in Bangladesh.
A subsequent report dated 18 November 2020 advised that there were two [Mr A]’s listed on the Dhaka Bar Association on-line directory. There was nothing to connect either person with the author of the letter relied on by the applicant.
Further information was provided by the Department on 10 June 2021. The information was covered by a certificate and notification pursuant to section 438 of the Act. The Tribunal considered the certificate and satisfied itself that the certificate was appropriately issued.
On 2 March 2022 the Tribunal exercised its discretion to disclose the substance of the information to the applicant and issued a section 440 direction restricting publication of the information.
Particulars of the information were provided to the applicant in a section 424A letter. The particulars given were:

-Information provided by Bangladesh police officials indicates that according to official records, case number [number] for [named] Police Station does not exist. This is the case number that appears on the warrant of arrest which you submitted to the Tribunal. This suggests that the document which you submitted is not a genuine document.
-Information provided by Bangladesh police officials indicates that according to official records, case number [number] for [named] Police Station does exist, however it relates to a different person. The charge which corresponds to that case number concerns drug offences. This suggests that the document which you submitted concerning case number [number] were not genuine.
-Enquiries relating to the identity of [Mr A] and his status were made with the Bangladesh Bar Association, Bangladesh Supreme Court Bar Association, Bangladesh Bar Council and Dhaka Bar Association. Based on the information provided to the Tribunal, these enquiries could not conclusively verify if [Mr A] was a member of any of the above groups. Further inquiries as to whether [Mr A] is currently alive were inconclusive.

The applicant was advised as follows:

This information is relevant to the review because your claims for protection status rely on claims that you have been charged with criminal offences and received advice in relation to those charges from a barrister. The information outlined above could lead the Tribunal to infer that you have supplied false documents to support your claim. This could lead the Tribunal to doubt the reliability of the evidence you have provided and in particular that you fear serious or significant harm as a result of police charges.

If the Tribunal relies on this information this would be the reason or part of the reason for affirming the decision under review.

The applicant was invited to give comments or respond to the above information in writing by 16 March 2022.
On 14 March 2022 the applicant’s representative responded on his behalf.
The key points raised were as follows:
a.The applicant has been open about the reasons why he delayed his protection visa. He applied for protection as a last resort. He hoped he would be successful in his studies and obtain a graduate visa and then a skilled visa without ever having to present his traumatic experiences from Bangladesh to obtain a visa.
b.The letter from his lawyer advising him not to return meant that his failed 485 visa left only the protection visa and he had valid claims to be eligible.
c.The protection visa pathway is a road to hell and the starting position of the decision makers is ‘you are lying – prove us wrong”. Had he been able to obtain skilled visa there would be no need to bring up his past
d.In response to the official records case numbers [number] and [number] issued by [named] Police Station, our client remains adamant that the reports do relate to him and have been incorrectly (and deliberately) logged due to the high level of corruption at his local police station and their awareness of his political activities;
e.The outdated country information says that only returnees with a high political profile will face adverse attention. As General Secretary, [the applicant] clearly had significant political profile.
f.He had and still has a very real fear of returning to his home as he remains to this day a member of the Bangladesh National Party. He cannot return to his birthplace due to the extensive level of local corruption and violence towards members opposing the current ruling party – Awami League;
g.During the conference held with Deputy President Garry Humphries it was resolved that further investigations would take place to investigate the genuineness of the charge sheets and confirm the existence of [Mr A].
h.It is perplexing and frustrating for what should be a fair and just process that the notice of the investigations was issued [in] June 2021 yet the first the applicant heard of this was on 2 March 2022 and the applicant was only given 14 days to respond.
i.The applicant and his representative no longer believe that [Mr A] is dead and he may be a current member of the Dhaka Bar Association with member ID [number]. Attempts have been made to contact the Dhaka Bar Association but they were unable to connect. Written communication has also been attempted and the applicant awaits a response;
j.The disclosure of the applicant’s name in the [cited] decision was unlawful. The act of disclosure puts individuals at a higher risk of harm than if their names had not been released. By naming him and providing other identifying information the applicant now has a target on his back. The FCC judgement is still available on the internet. We have to assume that the Bangladeshi government intelligence services have read the judgment ad stored it in their database given that they have had five years to do so. And whether they believed he was a threat at the time, there can be little doubt that once they read the judgement they would now be working on the basis that the claims are real. There is no other logical explanation unless one is to believe that the government would simply not care. The applicant is now in significant danger based on the detailed claims unintentionally disclosed by the Court’s decision
k.Up to date country information indicates that the persecution and torture of those that speak against the Awami Party has continued despite the claims that detainees and suspects are treated in line with international law.
l.The applicant genuinely fears for his safety should he be refused. His fear is based on:
i.The response from the Department indicating that the police reports are not genuine;
ii.That his only contact [Mr A] is still an enigma and yet holds the truth of the applicant’s story;
iii.The release of his name in the court judgment
iv.It would not be safe for the applicant to return to Bangladesh.
The matter was listed for hearing on 27 June 2022.
Prior to the hearing the applicant filed a statutory declaration from his brother setting out his evidence about threats that were made to him in 2014.

The hearing

The applicant appeared at the hearing and was assisted by his representative Ms Huntley. The Tribunal was advised that the applicant’s brother would not be available for questioning as he had work commitments. Nor would the lawyer [Mr A], as the applicant had been unable to locate him.
No material which had not already been filed was presented. The Tribunal advised the applicant of the material that would be taken into account in dealing with his claim.
A Bengali interpreter was present by telephone. The applicant agreed that the proceedings could proceed in English and that he would ask for an interpretation if he did not understand any questions that were asked.
The applicant was sworn as a witness and answered questions the Tribunal posed. He was an unimpressive witness. The Tribunal’s questioning focussed on events in 2009 beginning shortly after the General Election. These were the crucial events which the applicant claims caused him to flee Bangladesh using a student visa to enter Australia. Based on the previous account given by the applicant (as recorded by the delegate), the applicant was involved at least one violent protest, he was the subject of false charges which he was advised of by mail and as a consequence, he went into hiding.
When questions were asked in an open way about what happened after the general election and in the early months of 2009 the applicant responded in very vague terms. Despite opportunities to provide more detail about events the applicant failed to volunteer any detail at all.
The applicant was questioned about his lawyer [Mr A]. His evidence was that he had no dealings with [Mr A] and they had all been handled by his brother.
The applicant confirmed that he still had relatives in Bangladesh who he remained in contact with, but he offered no information about any steps he had taken to hunt down this critical witness who his brother in Bangladesh had been in direct contact with at some point.
The applicant’s details about his political activities from his time at university onwards were vague. There was nothing to suggest that the applicant had any memories of significant events which caused him to flee his homeland. His responses were bereft of any detail which would suggest he had memories of specific experiences..

Consideration

If I am satisfied that the applicant’s claims are true then he is undoubtedly entitled to a protection visa.
Senior people in the BNP in Bangladesh have been the subject of false charges and ended up incarcerated indefinitely. They have been targeted because of their political opinions. This is well documented in country information. If the applicant established to my satisfaction the factual matters he claims took place prior to his departure from Banglashesh, I would have no difficulty finding that he was a refugee. For similar reasons, the applicant would be entitled to complementary protection if I was satisfied that his claims were true (and he did not qualify on the basis of being a refugee).
However, I am not satisfied that the applicant’s claims are genuine.
On the contrary, I am satisfied that the applicant has submitted forged documents to support one of his factual claims – that false charges were laid against him in Bangladesh. That causes me to approach with scepticism all of the other claims that he has made and the evidence on which he relies. When the other material used to support the claims is examined, in every case there are reasons to doubt its authenticity. When this is considered in a context where the applicant has had years to respond to the scepticism repeatedly expressed in relation to his claims, the evidence falls well short of persuading me of any of the factual matters which are critical to the applicant’s claims.
The first question therefore to be considered is whether the applicant was ever the subject of false charges as claimed.

Subject of False Charges

Central to the applicant’s claim for a protection visa is his factual claim that in response to his political activities in Bangladesh on behalf of the BNP, he was the subject of false criminal charges which were laid soon after the Awami League won government in the 2008 election. To support this claim the applicant submitted documents which he claimed were taken from the Court file in Bangladesh which established that he had been the subject of two charges and ultimately became the subject of two arrest warrants issued by the court. One of the charges bore the number [number].
Earlier decision makers cast doubt on the authenticity of these documents noting that country information concerning Bangladesh indicated that false documents were readily available.
In the course of preparing this matter for re-hearing the Tribunal obtained further information which was consistent with the documents being false. Information obtained through the Department indicated that the First Information Report submitted by the applicant in relation to the case number [number] did not correspond to the documents relevant to that charge number held by Bangladeshi police officials. The documents submitted by the applicant to the Tribunal with that charge number related to offences under the Explosive Substances Act laid against the applicant. The documents held by Bangladeshi police bearing that charge number related to a different person who had been charged with drug offences.

This is evidence consistent with a conclusion that the documents submitted by the applicant were forged.
The applicant’s response to this information was that the documents held by police have been incorrectly (and deliberately) logged due to the high level of corruption at his local police station. This was the full extent of the applicant’s attempt to address the extremely damaging information provided by the Department which went directly to the authenticity of his claims. No explanation was offered as to why corruption would lead to a mismatch between the documents obtained by the applicant and the information held by the police concerning the nature of the charge. Without some further elaboration I am not willing to accept it as an explanation.
Indeed, if thought is given to the situation, it is difficult to understand why corruption would lead police to put false documents before a court but ‘deliberately’, to use the applicant’s word, make sure that files held by the police do not match the court documents. It seems more logical that if someone was going to corruptly fit up a person with a false charge, that the record keeping at least would be consistent as between the court and the police records so that any investigation into claims that the charges were fabricated would withstand scrutiny if examined.
Further, the sheer weakness of the applicant’s response to the damaging adverse information suggests to me that he is conscious that the documents he submitted are forged. To understand this conclusion it is important to keep in mind that the applicant has relatives in Bangladesh and he claims his brother obtained the documents put before this Tribunal by going to the court in 2014 and asking for copies.[5]
[5] Ibid, [48].
In these circumstances it would have been relatively easy for the applicant to take steps to establish the authenticity of the documents originally submitted. Keeping in mind that doubts have been expressed about these documents as far back as 2014, if they were genuine, much could be done to verify their authenticity. For example, an independent person, willing to appear in the Tribunal could be asked to provide sworn evidence that they searched the court file and saw the documents on the court file. This was not done, nor was any other attempt made to address the serious questions raised by the information which the inquiries conducted with Bangladeshi police raised.
I am satisfied based on:
a.The ready availability of forged documents in Bangladesh;
b.The information obtained from inquiries by the Department in Bangladesh; and
c.the weak attempts by the applicant to address that information;
that the court documents submitted by the applicant with his original protection visa application were forged and are not genuine court documents.
As those documents are central to the applicant’s claims this finding casts doubt on the credibility of his entire claims.
Before moving on to the other causes for doubt about the applicant’s claims, I note that I place no significance on the information obtained by the Department that police were unable to find a charge which corresponded to case number [number]. Unfortunately, that number does not correspond to the other charge which the applicant claims was laid against him. That number comes from one of the warrants of arrest documents submitted by the applicant but the charge number on the warrant is incorrect - it should read case number [number]. As a consequence, the absence of a corresponding charge being identified by Bangladeshi police sheds no light on the situation either way.
Having reached the conclusion that the documents concerning charge [number] were forged, the remaining material needs to be assessed in that light. The other document said to corroborate the applicant’s story about the false charges is the letter from his lawyer [Mr A]. Quite legitimate queries about the authenticity of this letter have been raised on other occasions. The chief query is why is a Bangladeshi lawyer corresponding with the applicant in broken English rather than each parties’ native language. Further, why is the applicant’s lawyer communicating on the risks of the applicant being killed in crossfire if arrested by the RAB. These do not appear to be matters on which a lawyer could reasonably be giving advice to his client.
These quite legitimate questions have not been appropriately addressed by the applicant.
Once again there is no obvious practical impediment to the applicant doing so. Scepticism about the false charges, and by implication the lawyer’s letter, was expressed by the delegate on 1 October 2014. At that stage according to the applicant’s account of the relationship with this lawyer, his brother had had recent dealings with the lawyer who had acted to defend the applicant.
At that point in time the applicant through his brother could have engaged further with the lawyer to establish the bona fide nature of the charges and properly establish the lawyer’s identity. Instead, the applicant and his brother somehow lost touch with the lawyer to the point where the applicant cannot even instruct his current representative on the very basic question of whether the lawyer is alive or dead.
If the applicant had a lawyer who defended him against false charges in Bangladesh, I do not doubt that there would be multiple records of engagement with such a person which the applicant’s brother[6] in Bangladesh could locate and provide to the Tribunal. None of this was done. The applicant’s evidence in relation to [Mr A] is that he had limited dealings with him. It strains credibility that the applicant and his family was unable to obtain a single piece of further evidence to corroborate his claim that a [Mr A] exists and was directly involved in court proceedings concerning the false charges laid against him. For the applicant to still be relying on a single letter which:
a.provides no identifying information concerning the lawyer nor a means of contacting him;
b.does not look like a lawyer’s letter and comments on matters beyond the normal remit of a lawyer; and
c.which is in a language which neither the lawyer nor the applicant can correspond in terribly well;

in circumstances where he has known for 8 years that the document was not readily accepted as good evidence of the charges against him, favours the conclusion that there is no [Mr A] who acted for the applicant in relation to false charges and the letter is simply a concoction prepared in the hope it might persuade someone that the applicant was the subject of false charges.

[6] The applicant appears to describe his brother in law in Bangladesh as his brother.

Having reached the conclusion that the applicant is willing to rely on false documents to support his story, there is nothing in the other material on which he relies which would be sufficient to persuade me that his claims are genuine. In particular:
a.I am not satisfied that the applicant ever occupied an executive position in the BNP;
b.I am not satisfied that the applicant’s brother was threatened by a person in 2014; and

BNP Executive

It is important to the applicant’s claims is that he was a prominent person within the BNP and this brought him to the attention of the Awami League and the RAB. The applicant supports these claims with his own testimony and a reference from [Mr B] dated 5 February 2014 (the reference). I accept that [Mr B] held a senior position in the student arm of the BNP. There are however doubts about the authenticity of the document he is said to have signed.
The delegate in her decision pointed out that publicly available information indicated that on the date the reference was supposedly signed, [Mr B] was in prison. The applicant has never suggested that this was not the case. I am satisfied that what evidence there is on this question favours the conclusion that [Mr B] was in prison on the date the reference was signed.
I do not think that I am being unduly sceptical in thinking that it is highly unusual for someone to go to the trouble of obtaining access to a political prisoner for the purposes of having them sign a rather bland reference attesting that a particular person held a particular position within a particular political party. At the very least, if doubts are expressed about the authenticity of the document (which they have been), it is appropriate to lead evidence about the circumstances in which the document came to be signed. The applicant did not do this. The applicant has never proffered a convincing explanation about the provenance of the reference despite having opportunities to do so. During the first Tribunal hearing he was specifically asked about it and speculated that his brother may have obtained [Mr B]’s signature whilst [Mr B] was in jail. Idle speculation about the provenance of a critical document is not a substitute for evidence which it is within the power of the applicant to obtain. The applicant could, for example, have lead evidence from his brother in Bangladesh that he visited [Mr B] and obtained the reference while [Mr B] was in prison and the means by which he gained access to him. This was not done. The applicant’s failure to make any attempt to establish the provenance of the document in light of the queries which were raised in relation to it renders it suspect.
Further, for this to be the only document which the applicant can lay his hands on to corroborate his claims of almost a decade of work for the BNP is also suspicious. The applicant has relatives in Bangladesh. The BNP remains a functioning political party[7] but the applicant has produced only one document in support of his claims - not a single meeting minute, newspaper article, email or newsletter has been obtained and provided to the Tribunal to support his claims. Instead, the applicant asks the Tribunal to accept his word supported by a reference, the authenticity of which has been the subject of legitimate scepticism throughout the extended visa process. The most he is prepared to say about the document is that his brother may have obtained the signature whilst [Mr B] was in jail.[8] This is not sufficient to satisfy me that the applicant held the office within the BNP identified in the reference or that the reference was genuine.
[7] ‘Bangladesh Parliament’, List of 11^th Parliament Members (Web Page) < 1417566 (Refugee) [2016] AATA 4246, [31].
Further, the applicant dates his student involvement from study he undertook at [College 1] in the late 1990s. The applicant in his student visa application disclosed no attendance at any tertiary education institution at the relevant period. This casts doubt on his frankness when making applications for visas.
When combined with his ignorance of the name of a candidate he supposedly campaigned for which was exposed by the delegate and which the applicant accepts happened in that interview, it becomes difficult to accept that the applicant was a significant office holder in, and active campaigner for, the BNP. I am not persuaded that it was the case.

2014 Death threats to Brother

As has been noted previously by others, there is very little that is plausible about the death threats which it is claimed were made to the applicant’s brother whilst he was in Dhaka in 2014.
The applicant’s brother had not lived in Bangladesh since 2003. He visited a sister and her husband. There is no suggestion that either member of the couple had ever been molested, assaulted, warned or threatened since the applicant left Bangladesh.
Then, within a short period of his arrival, the applicant’s brother is threatened and the applicant named by an unknown motorcycle rider. The reasons for the threats are never explained by the stranger. The applicant’s brother, who is supposedly aware that corrupt police have fitted his brother up with false charges, then goes and reports the incident to the very same police station allegedly responsible for the false charges.
The story on its face is not one that has the ring of truth about it, but is not so impossible that with proper corroboration it might turn out to be true.
The applicant’s brother gave a statutory declaration which was similar to the earlier statement which he supposedly gave to Bangladeshi police. It did amplify the earlier statement. In particular, the applicant’s brother now says: ‘we were both threatened because of our political activities when we lived in Bangladesh’. The brother does not say how he knows this. It is not a detail included in the original report to police and there is no statement made by the assailant which is recorded in any document which would support such a conclusion.
These are matters which might have been cleared up on questioning the applicant’s brother. However, despite the applicant having said that he would call his brother, in the end he was not called at the hearing because he couldn’t get the time off work.
The applicant knew that there were significant reasons to doubt his claims. In my view, if he genuinely feared that on return to Bangladesh he would be murdered by armed gangs as claimed or sent to prison on false charges, every effort would be made to ensure that evidence of reasonable quality was made available to satisfy the Tribunal that his claims were genuine. Instead, the applicant failed to make even a token effort to support his claims with evidence of any quality. The failure to make his brother available for questioning by the Tribunal was typical of the disconnect between the seriousness of what the applicant claimed he feared and the decidedly minimalist way he went about attempting to support his claims.
In circumstances where there are significant reasons to doubt the applicant’s brother’s evidence and the brother is not made available to answer questions about threats which are central to the applicant’s claimed fears, I am not satisfied that the threats were ever made.

Conclusion

As should be apparent I am not satisfied that any of the incidents which are said to give rise to the applicant’s fears of persecution ever occurred. Consequently, I am not prepared to find that he subjectively fears persecution, let alone that any such fear is well founded.
Further, there are not substantial grounds for believing that if the applicant is removed to Bangladesh there is a real risk he will suffer significant harm.
The applicant has failed to satisfy me of any of the matters which might provide substantial grounds for such a belief.
The only additional matter that needs mentioning is the applicant’s claim that the inadvertent publication of his identity by the Federal Circuit Court in its decision and the posting of that decision on the internet means he will be subject to persecution or significant harm on return to Bangladesh.
The applicant’s representative conceded at the hearing that this claim depends on a finding that the facts underpinning the applicant’s primary complaint were true and that if the Tribunal did not accept the primary claims, then any claim arising from the Court’s disclosure of his identity in its published decision could not succeed.
As I have not accepted the applicant’s underlying claims are true, the claims based on the Federal Circuit Court’s publication of the applicant’s identity in its decision cannot succeed either.

DECISION

The Tribunal affirms the decision under review.

Damien O’Donovan

Senior Member

[2022] AATA 3618

4 August 2022

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Immigration

Administrative Law

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