1820326 (Refugee)

[2019] AATA 3280

1820326 (Refugee) [2019] AATA 3280 (18 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1820326

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Paul Millar

DATE:18 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 March 2019 at 1:56pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Jamaat e Islami – adverse interest to the Awami League – physical assaults – falsely charged with an offence – credibility issues – inconsistencies with evidence at entry interview – knowledge of court case and documents – data breach by the Department – returned asylum seekers – decision under review affirmed

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 August 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of Bangladesh, applied for the visa on 22 April 2016.[1]  The applicant appeared before the Tribunal on 24 January 2019 by videoconference to give evidence and present arguments in relation to the issues arising in the review.  The Tribunal hearing was conducted with the assistance of a Bengali speaking interpreter.  

   [1] The Tribunal's finding on citizenship is based on the applicant's evidence that he was born and lived in Bangladesh.

   RELEVANT LAW

2. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

3. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

4. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

5. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA.

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

   Mandatory considerations

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

   FINDINGS

8. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to his evidence to the Department and the Tribunal, the applicant claims protection on the ground that he supports Jamaat e Islami (‘JEI’).[2] The Tribunal holds the following concerns about the applicant’s credibility.  Before discussing those concerns, it is necessary to recite the evidence given by the applicant to the Tribunal as to the grounds on which he claims protection.

   Account of events on which the applicant’s protection claims are based

   [2] The Tribunal was not provided with a hard copy Department file for the applicant’s protection visa application.  Rather, certain documents were made available to the Tribunal in digital format.  These digital files included documents produced by the Department and documents related to the application made by the applicant to the Immigration Assessment Authority.  The Tribunal will not list all of those digital files in this decision but states that the applicant's evidence to the Department comprises his evidence at the entry interview, his protection visa application forms, his written statement made on 22 April 2016 and his evidence at his interview with the delegate.  The Tribunal was provided with audio recordings of the entry interview and the interview with the delegate. The Tribunal has listened to both recordings.

9. To the Tribunal, the applicant said that his father was a supporter of JEI.  His primary role for the party was to [undertake specific role] in his village.  Because of these activities for JEI, from 2009, people from the Awami League attacked and beat the applicant’s father when he was on his way home from the local market. Over the period from 2009 until his father passed away in April 2014, the Awami League attacked the applicant’s father a number of times, on some occasions, his injuries requiring him to spend time in hospital for treatment.

10. When he was [age] years old, the applicant began helping JEI.  Because he was illiterate, he would do whatever his father told him to do for the party. Usually, he was involved in putting up posters and placards that advertised processions and rallies. The applicant also took part in those processions.  He otherwise worked on the family farmland.  He lived in the same family home as his parents before and after he married in 2005.  Because of his activities for JEI, people from the Awami League harmed him.  From 2009, these people would ask the applicant and his family to join the Awami League.  They usually did this to the applicant when he was on the street walking to his home.  The applicant and his father always declined their requests.

11. In addition, from 2009, people from the Awami League would surround the applicant when he was on the street and beat him.  On one occasion the Awami League came to the applicant’s home, called him outside and commenced beating him. They ran away once his parents began shouting and neighbours approached. These attacks took place a number of times and the applicant sustained injuries to his [Body Part 1] and [Body Part 2] for which he needed medical treatment. 

12. Overall, the applicant thought that he had been attacked and beaten by the Awami League on approximately four or five occasions, the last occasion being at the beginning of 2013.  It was after that occasion that he decided to flee from Bangladesh.  Two years prior to that time, the applicant made the decision to stop living at the family home and go into hiding.  He did this because, by then, he had been attacked by the Awami League a few times and they had threatened that next time they would kill him unless he joined them. In this period, the applicant lived with different relatives in his native area.  Generally, he did not go out of the house during the day as he was afraid that the Awami League would catch and beat him. 

13. In the evenings, in this period, there were times when the applicant would go out and put up posters for JEI.  He did this at the behest of his father who told him not to be afraid. He did this mostly around the time of elections or when processions and rallies for the party were to be held.  However, he took no part in those events because they were held during the day and he was in hiding.  Even so, in this two-year period, the applicant said that there were occasions when he had to leave the house in which he was staying to undertake errands for his family.  On these occasions, he was found and beaten by the Awami League. This happened either when he stepped out of the house during the day and even when he went out of the house at night. He thought that this occurred approximately two or three times. 

14. Apart from those incidents, further harm suffered by the applicant in Bangladesh related to a false case brought against him by the Awami League.  In this respect, in 2009, the police came to the applicant’s family home, searched the kitchen and said that they found a Bangladesh passport belonging to another person. The applicant understood that it was a criminal offence in Bangladesh to have another person’s passport in one’s possession. He believed that people from the Awami League had ‘planted’ the passport in the family kitchen and told the police to go and search the house. On finding the passport, the police alleged that the applicant had stolen it. 

15. The applicant was then arrested and taken from his home to the local police station.  When asked if anybody else came to his house apart from the police at that time, the applicant said that there was nobody else.  Possibly, the Awami League informants watched events from a distance but he did not know.  The applicant was held at the local police station for a few hours.  On being accused of stealing the passport, the applicant was then transferred to a central jail in Dhaka.  He was held there for approximately four days and released after his father retained a lawyer who was able to obtain bail for him.

16. Following his release from the jail, the applicant attended court approximately three times over a period of about two years.  His case remained on foot after that time but his lawyer told him that he would manage it and the applicant no longer had to attend court.  As stated above, after being attacked in early 2013, the applicant decided to leave Bangladesh.  He had arrangements made for him to obtain a passport and he left the country in February 2013.  The case against him remained on foot until the case was resolved in April 2014.  The applicant said that the case was withdrawn as they were unable to locate him. Further his lawyer had told the court that the applicant was unlawfully ‘framed’.

17. From the time the applicant left Bangladesh, people from the Awami League started going to his family home alleging that he owed them money.  They demanded that the money be paid to them or the applicant handed over.  They continued to make these visits to the family home until early 2015 when they ransacked and destroyed it. After this, the applicant lost contact with his wife and child. He understands that his mother has had to go and live with different relatives.

    Credibility concerns

    Evidence about events in Bangladesh

18. When interviewed by an officer of the Department on 7 March 2013 (‘the entry interview’), the applicant was questioned as to why he left Bangladesh.  In his responses, the applicant referred to a court case being brought against him and police repeatedly coming to his home at night looking for him.  He said that on those occasions he would run away from his home for an hour and then go back there.  The applicant told the officer that he did this for approximately four years, got tired of it and, so, left Bangladesh.  He also told the officer that he was ‘threatened’ by people from the Awami League on approximately five or seven occasions.

19. In contrast, to the Tribunal, the applicant said that he was physically attacked by people from the Awami League on a number of occasions and sustained injuries that required medical treatment.  That claim appears to be inconsistent with his evidence at the entry interview that he was merely threatened a number of times without claiming to have been physically attacked.  Further, in his evidence to the Tribunal, the applicant said that it was after the final attack he suffered in early 2013 that he decided to leave Bangladesh.   That claim appears to be inconsistent with the evidence of the applicant at the entry interview that he left Bangladesh because the police were coming to his home to apprehend him over a period of four years. 

20. His claim at the entry interview about that appears to be inconsistent with his evidence to the Tribunal about his dealings with the police.   To the Tribunal, the applicant referred to only one encounter with the police which is when they arrested and detained him. The applicant told the Tribunal that he had no further dealings with the police after that because he attended court as required by the conditions on which he was granted bail.  The applicant made no claim to the Tribunal that the police came to his home repeatedly trying to locate him as he claimed at his entry interview.

21. Further, while at his entry interview, the applicant indicated that he remained living in the family home until leaving Bangladesh, to the Tribunal, the applicant said that two years before he left Bangladesh, he stopped living in the family home and went into hiding.  He said that he took that measure because he was trying to avoid being caught and beaten by the Awami League. 

22. Pursuant to s.424A, by letter dated 18 February 2019, the Tribunal put these discrepancies to the applicant.  By letter dated 24 February 2019, in response, the applicant said that he left Bangladesh because he was harassed by the police and threatened and attacked by people from the Awami League.  He submitted that this was the evidence he gave at the entry interview and that any inconsistency was due to a mistake by the interpreter at that interview. The applicant submitted that at the entry interview he showed to the officer of the Department the injuries he sustained from being attacked by people from the Awami League. 

23. The Tribunal is not persuaded by these submissions.  There is no mention in the record of the entry interview that the applicant showed injuries to the officer and no mention of the applicant claiming to have even sustained any injuries. The Tribunal does not accept that the discrepancy in question is due to a mistake by the interpreter.  If the applicant did claim at the entry interview that he had been physically attacked by people from the Awami League, as opposed to just being threatened, the Tribunal could reasonably expect the interpreter at the interview to have properly translated that evidence. 

24. In his written statement of 22 April 2016 the applicant said that he did not mention being beaten at the entry interview.  He said that this was because he was afraid that if he did that could cause problems for him in Australia.  He gave this same explanation to the delegate.  If it was truly the case that the applicant had been physically attacked by the Awami League as he claimed to the Tribunal he would have mentioned this at the entry interview.  His claims in his written statement and to the delegate that he refrained from doing this out of fear are disbelieved by the Tribunal.  If the applicant was willing to say at the entry interview that the Awami League people threatened him then he could also say that they attacked him if that is what happened.

25. In his submissions of 24 February 2019, the applicant also submitted that if, to the Tribunal, he mentioned his ‘dealings with the police only once’ then he had made a mistake. The applicant stated that he did live in his family home, but, due to the harassment he was receiving, he would stay with other people, hide or live ‘on the run’.  He would go home to see his family and that was when they would tell him that the police were going there trying to find him.  Whenever he returned to the family home, so did the police. For that reason, he would remain in hiding or ‘on the run’ for approximately two years before leaving Bangladesh. 

26. The Tribunal rejects these submissions because, even if the applicant did go to see his family in the period that he was in hiding, he made no claim to the Tribunal, that, on those occasions, he was told that the police were going to his family home trying to find him.  The Tribunal questioned the applicant closely at the hearing about his dealings with the police and he was clear in his evidence that, in essence, he had one encounter with the police which is when he was arrested.  He specifically said that he had no further dealings with them after that because he attended court as he was required to do. 

27. Further, to the Tribunal, the applicant was clear that the decision to leave Bangladesh was made after he was physically attacked by the Awami League in early 2013. In contrast, at his entry interview, the applicant’s decision to leave Bangladesh was made because of continuous police harassment over the previous four years.  It is also clear from the record of the entry interview that the applicant made no claim to have gone into hiding in Bangladesh.  In stark contrast, to the Tribunal, the applicant specifically said that two years before leaving Bangladesh he stopped living in the family home to avoid the Awami League.  Overall, there are serious discrepancies between the applicant’s evidence at the entry interview and his evidence at the Tribunal hearing and he has not provided a satisfactory explanation for them.

    Evidence about attacks on the applicant’s father

28. In his evidence to the Department about his protection claims, the applicant did not advance any claim that his father was physically attacked by people from the Awami League.  Indeed, when interviewed by the delegate and specifically asked if his father had problems in Bangladesh, the applicant said that his father had never been in trouble because people loved him. In contrast, in his evidence to the Tribunal, the applicant said that, over the period from 2009 until his father died in April 2014, his father was attacked by people from the Awami League on a number of occasions and sustained injuries that required him to receive treatment in hospital. 

29. Pursuant to s.424A, by letter dated 18 February 2019, the Tribunal put to the applicant that his evidence on this issue appeared to be inconsistent.  By letter dated 24 February 2019 the applicant simply stated that his father was a respected man who was loved by all.  He submitted that there might have been an ‘interpreter error in this issue’.  The applicant’s submission does not resolve the inconsistency in his accounts.  Should the applicant be claiming that his father was attacked in Bangladesh, as he told the Tribunal, the Tribunal could reasonably expect him to specifically say this to the delegate. 

1. The Tribunal rejects any submission the applicant may be making that he did advance that claim to the delegate but the interpreter did not properly translate his evidence.  The applicant has raised no other objection to the translation of evidence by the interpreter at the interview with the delegate.  The Tribunal could reasonably expect that if the applicant did claim at the interview that his father had been physically attacked on a number of occasions, as he claimed to the Tribunal, then the interpreter at the interview would have translated that evidence.  The applicant’s evidence about whether or not his father was attacked is inconsistent and he has not provided a satisfactory explanation for that.

   Evidence about the decision to flee from Bangladesh

2. As discussed above, the applicant had earlier said that after being attacked in early 2013 he decided that he had to leave Bangladesh.  Further in the hearing, the Tribunal asked the applicant when he made the decision to leave Bangladesh.  In response, the applicant again referred to having to go into hiding and being unable to go out of the house during the day. He then said that his brother who was living in [Country 1] told him that he should leave the country and his brother would make arrangements with a ‘middleman’ and people smuggler to get him to Australia.

3. Two years before the applicant himself left Bangladesh in February 2013, the applicant’s father had his brother sent out of Bangladesh to [Country 1].  The applicant’s father took this step because he sensed danger for the applicant’s brother arising from the harm caused to the family by the Awami League.  In particular, the applicant’s father sensed danger because the applicant had false cases brought against him by the Awami League. On one occasion, the applicant’s brother had been held and beaten by the Awami League while on his way home from the market.  He was attacked because of the work that the applicant and his father were doing for JEI. 

4. Further in the hearing, the Tribunal asked the applicant why it was that his decision to flee from Bangladesh was not made until almost two years after he had gone into hiding.  In response, the applicant said that he did not wish to leave Bangladesh even though he had been attacked and had gone into hiding.  The Tribunal asked the applicant why his father would have his brother leave Bangladesh two years before him, when, according to his evidence, the applicant had suffered more grievous harm than his brother who was only attacked once. The applicant had been attacked a number of times before going into hiding and, as well, had a false case on foot against him.  The Tribunal put to the applicant that, in those claimed circumstances, it had difficulty accepting that his father would have his brother leave Bangladesh and not him.

5. In response, the applicant said that he had the case on foot against him and would not have been able to obtain travel papers. His father just decided at the time that his brother should be sent out of the country to be safe.  The Tribunal again asked the applicant why it was that he fled from Bangladesh in February 2013 and not well before that time given that he had gone into hiding two years before leaving the country.  In response, the applicant said that he did not wish to leave Bangladesh. After he was severely beaten he was afraid and his brother said that he would be able to make arrangements for him to leave.  In this respect, an agent or middleman was used to take the applicant’s pictures and assemble papers to have him issued with a passport that he used to leave Bangladesh.

6. The Tribunal asked the applicant why those steps and dealings with those people could not have been undertaken long before February 2013 given the danger the applicant claimed that he was in. In response, again, the applicant said that he did not want to leave Bangladesh and had no other option.  When asked how his father was able to help his brother get out of Bangladesh, the applicant said that his father told him one son was in strife so the other son should be saved.

7. The Tribunal asked the applicant why his father would not actually save him given that he appeared to be in far more danger than his brother.  In response, the applicant said that he did not want to leave Bangladesh. He was in hiding and it would have been hard to arrange for him to go. The Tribunal asked the applicant why the middleman or agent could not have been used to have him leave Bangladesh in early 2011, when he decided to go into hiding for his safety. In response, again, the applicant mentioned the court case being on foot and appearing in court. Again, he said that it was not easy to make arrangements to be able to leave the country.

8. When asked if his father was not concerned that, while a false case was on foot, there was every chance that a court might send him to jail, the applicant said that he had been granted bail and so he just hoped for justice and to be declared innocent. He said that after being beaten and finding that he could not live in one place he decided that he had to leave the country. The Tribunal is not persuaded by the applicant’s responses on this issue.  The Tribunal can see no plausible reason why the applicant’s father should have his brother sent out of Bangladesh well before the applicant left the country, when the applicant was clearly in far greater danger than his brother.

9. The Tribunal does not believe that the applicant remained in Bangladesh so long after a court case was brought against him and long after he first went into hiding, because he did not want to leave Bangladesh.  The Tribunal accepts that the applicant was leaving family behind, but, he eventually did this in early 2013.  The Tribunal is sceptical that the applicant would not have left Bangladesh for his safety well before then.  The Tribunal also rejects the applicant’s claims that it would have been difficult for him to leave the country as there was a false case against him and he also hoped that he would be found innocent.

10. Given that the applicant believed that the court case brought against him was the work of the ruling party it is difficult to accept that he would choose to remain in Bangladesh hoping for a favourable result from the courts.  Further, in the meantime, the applicant was living in different places and still being attacked by the Awami League.  While he had the case against him, he nevertheless was able to use an agent to assist him to leave the country. He did not put forward a satisfactory explanation as to why those arrangements could not have been made much earlier.

    Knowledge about the court case and documents

11. To the Tribunal, the applicant said that the court case ended in April 2014 when the allegations against him were withdrawn.  As discussed above, the applicant said that this was because the authorities could not locate him and his lawyer told the court that he was unlawfully ‘framed’.  When asked if the informants in the case eventually withdrew their allegations against him, the applicant said that they did not. It was the lawyer who told the court that the applicant had been unlawfully charged.

12. The Tribunal asked the applicant whether he ever complained to the police about the attacks he suffered from the Awami League. In response, the applicant said that the family filed complaints with the police but they would only do whatever the Awami League wanted them to do.  The Tribunal asked the applicant how it was that the court dismissed his case when the Awami League, who are in government, had more or less instigated it, according to his evidence.  In response, the applicant said that the courts were not under the control of the Awami League. People could still receive justice from the courts but not the police.

13. To the Tribunal, the applicant submitted various documents related to the case against him and which purportedly emanated from the police in Bangladesh.[3] The Tribunal put to the applicant that one of the documents he had submitted was an ‘affidavit’ made by two persons referred to in the documents as witnesses to the case against him.  They stated that on 3 January 2009 ‘when they arrived at the scene they were asked to sign on blank papers by the informant and they did not know what would be written on those papers subsequently’.  They said that the applicant was not involved with the incident in question and they did not know if the passport had been seized from him. They said that he was a good person and they were not going to provide ‘witness’ in the case.

    [3] See folios 32-42 of the Tribunal file.

14. The Tribunal put this to the applicant and mentioned the names of these two people. The Tribunal asked the applicant what he knew about this and he said that he did not know anything about the document or its contents nor did he know the people concerned. He named an Awami League leader in his area who he said got people to do his ‘dirty work’; otherwise, the court said that he was innocent.  The Tribunal put to the applicant that when he was relating his account of this incident and the police coming to his home, he mentioned only the police and Awami League people who must have been informants. The Tribunal put to him that he did not mention anybody else going to his home or being involved as the affidavit from these people appears to indicate.  In response, the applicant said that was correct and only the police came to his home and he was not aware of these other so-called witnesses.

15. The Tribunal put to the applicant that, according to this affidavit, these people had, in effect, been made to sign false information. In response, the applicant just said ‘maybe’ but he knew nothing about that. The Tribunal acknowledged the applicant’s claim that he was illiterate but it was concerned that, nevertheless, he seemed to know nothing about the contents of this particular document in relation to a false case against him.  The Tribunal then turned to the other police documents.  A ‘Charge Sheet’ dated [in] July 2009 refers to the applicant being arrested after a passport was found at his home.  However, the document, elsewhere, lists the names of the accused persons, refers to one of them (not the applicant) being held in remand and the others avoiding arrest and remaining ‘fugitive’. 

16. The Tribunal put to the applicant that these documents implied that he was in fact a fugitive who had not been located by police after his initial arrest and they were looking for him and other accused to appear in court.  In response, the applicant said that in Bangladesh the police just said whatever they wanted to say.  While the Tribunal acknowledges that claim, the fact remains that the document in question implies that the police were trying to apprehend the applicant when, to the Tribunal, the applicant said he appeared in court as he was required to do.

17. At the final stage of the hearing, the Tribunal asked the applicant whether, once he received these documents from Bangladesh, he asked his family what they actually said given his claim to be illiterate. In response, the applicant said that he asked his family to send papers about his court case and they did.  When asked if he ever questioned his family as to what these papers said, he said that his family told him they were about the court case.  The Tribunal asked the applicant whether he asked his family to read to him what these papers said.  In response, the applicant said that after they sent the court papers to him his father passed away and that stressed him. For that reason he never asked his family what these papers actually said.

18. Again, even allowing for the applicant’s claim that he is illiterate, the Tribunal does not believe that he would fail to ask his family to tell him what these police documents actually said.  The applicant has produced these documents as some form of corroboration of his protection claims.  It is not credible that he would have his family send him these documents but make no attempt to find out what they said.  The Tribunal is not persuaded that, in his circumstances as an applicant for protection, he would refrain from doing this due to the distress of losing his father.

    Conclusions on credibility

19. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false.  Accordingly, the Tribunal disbelieves the applicant’s claims that he and his father supported and undertook activities for JEI; that he, his father and his brother were attacked by the Awami League and that the Awami League wanted the applicant and his father to join them.  The Tribunal also disbelieves the applicant’s claims that he was arrested, held in custody and the subject of a false case; that he went into hiding in Bangladesh and that he was of adverse interest to the police or the Awami League.  Accordingly, the Tribunal disbelieves the applicant’s claims about the Awami League harassing his family after he left Bangladesh and demanding money from them. The Tribunal disbelieves his claims about these people attacking the family home and causing his mother and his wife and child to live elsewhere.

20. In reaching these findings, the Tribunal has considered the police documents submitted by the applicant as discussed above.  In certain respects, as discussed above, the information contained in these documents is actually inconsistent with the applicant’s evidence to the Tribunal.  Further, the applicant’s knowledge of the contents of these documents was vague.  The fundamental premise of these documents is that the applicant was arrested and a false case taken out against him as he claimed to the Tribunal.  However, the contents of these documents do not overcome the serious inconsistency in the applicant’s evidence about harm he suffered in Bangladesh and how he responded to that harm.

21. In addition, country information indicates a wide prevalence of document fraud in Bangladesh in relation to official identity documents as well as in relation to employment.[4]  Given this wide prevalence of fraud, the Tribunal also believes it is reasonable to infer that this also applies to documents issued by police and other related law enforcement agencies.  That inference can be supported by the wide prevalence of corruption in Bangladesh.[5] 

    [4] See Research Directorate, Immigration and Refugee Board, Canada, BGD105263.E,  Bangladesh: Research of fraudulent Documents (2011 – 2015), 20 August 2015, at 1. Overview.  This source provides as follows:

    [5] See DFAT, Country Information Report Bangladesh (2 February 2018).  At 2.19 DFAT states:

    “Corruption is pervasive at all levels of society, and is particularly pervasive in the judicial system, police, and public services. Low salaries for employees in these sectors frequently lead to them demanding facilitation payments to supplement their income. Anti-corruption legislation is inadequately enforced, and prosecutions for corruption are rare.”

22. The Tribunal put to the applicant that according to available country information false documents could be readily obtained in Bangladesh as could official documents that contain false information.  The Tribunal put to the applicant that this could suggest that the documents he had submitted in support of his protection claims were false or contained false information.  In response, the applicant said that he had got hold of the originals of these documents and they were not false.  The Tribunal has considered that submission, but, for the reasons given above and taking the country information into account, the Tribunal determines not to give evidentiary weight to these documents.

23. In reaching its findings on credibility, the Tribunal also considered submissions made by the applicant in his letter of 24 February 2019 in which he said that he was nervous and afraid at the Tribunal hearing and being held in detention had affected his memory.  He submitted that he had been suffering from depression, anxiety, memory loss and other conditions for a long time while held in detention.  He submitted that if there was any inconsistency in his evidence then it was due to his mental condition.  The applicant also submitted that if he was not truly at risk of serious harm in Bangladesh he would never have stayed in detention in Australia.  

24. The Tribunal has carefully considered these submissions but is not satisfied that the concerns the Tribunal holds about the applicant’s credibility can be explained or excused by what he claims is his mental state.  The Tribunal found the applicant to be able to comprehend the Tribunal’s questions and meaningfully respond to them.  The Tribunal finds that its concerns about his credibility have arisen because he is not a witness of truth and the account of events on which his protection claims are based is false.

25. The Tribunal has also considered that the applicant claims to be illiterate.  Even so, the applicant impressed the Tribunal as an intelligent individual who appeared to have no difficulty comprehending the questions put to him by the Tribunal and responding directly to those questions in most cases.  The Tribunal is not persuaded that the applicant’s level of education explains or excuses the concerns it holds about his credibility.

26. In his written statement of 22 April 2016, the applicant claimed that he had scars on his body from being attacked by people from the Awami League.   The applicant may have scars on his body, but, because he is not a witness of truth, there is no credible evidence before the Tribunal as to how those scars were sustained.  The presence of scars on the applicant’s body does not overcome the concerns the Tribunal holds about his credibility.

27. To the Tribunal, the applicant said that he feared harm in Bangladesh solely on the ground that the Awami League would harm him because of his support and activities for JEI.  The applicant said that media coverage of events in Bangladesh indicated that many people from JEI and the Bangladesh Nationalist Party had been killed by the government in election violence. For the reasons given above, the Tribunal does not believe that the applicant supported and undertook activities for JEI.  Therefore harm suffered by members of that party in Bangladesh does not demonstrate any risk of him suffering serious harm in that country.

28. To the delegate the applicant mentioned being at risk of harm because of his religion which is Islam.  However, this claim was expressed in the context of a broader claim he made that members of JEI suffer harm in Bangladesh.  The Tribunal does not believe the applicant’s account of supporting and undertaking activities for JEI and while the Tribunal accepts that he follows Islam there is no credible evidence before the Tribunal that the applicant suffered harm in Bangladesh on that or any ground. He made no claim that he was unable to practice his religion in Bangladesh.

29. In the decision to refuse the protection visa application, the delegate referred to a ‘data breach’ whereby information held by the Department relating to applicants held in detention on a certain date was publicly available.  To the Tribunal, the applicant stated that this placed him at risk of harm in Bangladesh.  The Tribunal put to the applicant that, according to the decision of the delegate, the information made public did not include the fact that the applicant had applied for protection nor the grounds of his protection application. Further, the Tribunal put to the applicant that according to available country information the risk of him suffering serious harm in Bangladesh because he had applied for protection in Australia was remote.[6] 

    [6] See DFAT, Country Information Report Bangladesh (2 February 2018), at 5.23.  DFAT states that failed asylum seekers are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily.

1. In response, the applicant just repeated his fear of harm based on the ‘data breach’ by the Department.  The Tribunal has no credible evidence before it that the Awami League or Bangladesh authorities hold adverse interest in this applicant.  The Tribunal disbelieves his claims about being of adverse interest to them when he lived in Bangladesh and after he came to Australia.  On those grounds and in view of the country information, the Tribunal finds that the risk of the applicant suffering serious harm in Bangladesh because of the ‘data breach’ is remote.

2. The delegate also considered the risk of harm to the applicant because he claimed to have left Bangladesh illegally.  Because the applicant is not a witness of truth, the Tribunal finds that it has no credible evidence as to the manner in which the applicant left Bangladesh. The Tribunal does not believe that the applicant was of adverse interest to Bangladeshi authorities at the time he left the country and so finds that it has no credible evidence that he left the country illegally.

3. The Tribunal has also taken into consideration submissions dated 5 May 2016 from the applicant’s former representative.  Much of these submissions were about why the applicant is at risk based on the events that he claims occurred when he lived in Bangladesh.  For the reasons given above, the Tribunal disbelieves those claims and so these submissions do not assist him.  Submissions were also made with respect to birth certificates provided to the Department by the applicant.  The Department had concerns about apparent inconsistency between those documents, but, the Tribunal holds no such concerns itself and the Tribunal’s findings on the applicant’s credibility are based on the concerns set out above in this decision.

4. It was submitted that the applicant displayed knowledge of JEI when interviewed by the delegate and therefore his account is credible.  Whether or not the applicant has knowledge of JEI, that does not overcome the concerns that the Tribunal holds about his credibility that significantly discredit him as a witness.  It was submitted that the Prime Minister of Bangladesh stated nationals that leave the country illegally were to be punished for adversely affecting the image of Bangladesh.  The representative submitted that the applicant was at risk of harm on that ground.  As discussed above, the Tribunal has no credible evidence as to the manner in which the applicant left Bangladesh and no credible evidence that he left the country illegally. Accordingly, the Tribunal rejects this submission.

5. It was submitted that the applicant belongs to a particular social group of ‘returned asylum seekers’.  It was submitted that as a result of the ‘data breach’ discussed above the Bangladesh government would have identified the applicant as someone who had applied for protection in Australia and would be seen as a traitor to his country.  It was submitted that it is likely that the Bangladesh government did have access to this data because there was a report in the media that the data was downloaded and shared many times. 

6. The Tribunal rejects these submissions.  According to the Department, the data made available did not include whether or not the applicant had applied for protection.  Country information mentioned above is to the effect that it is unlikely a returnee to Bangladesh would be of adverse interest to the Bangladesh government for applying for protection in Australia.  This must also be considered with the fact that the Tribunal has rejected the account of events on which the applicant’s protection claims are based.  Accordingly, the Tribunal remains of the view that the risk of the applicant suffering serious harm in Bangladesh because of the data breach and because he has applied for protection in Australia is remote.  There is therefore no need for the Tribunal to determine whether the claimed particular social group of returned asylum seekers exists.

7. Because the applicant is not a witness of truth, the Tribunal has no credible evidence that the applicant suffered harm in Bangladesh and that anyone in Bangladesh seeks to harm him.  The Tribunal has no credible evidence as to why the applicant left Bangladesh and why he does not want to return there.  For the reasons given above, there is not a real chance that the applicant will suffer serious harm in Bangladesh. He does not hold a well-founded fear of persecution within the meaning of s.5J(1) of the Act and he is not a refugee within the meaning of s.5H(1)(a). 

8. For the same reasons that the Tribunal finds that there is not a real chance that the applicant will suffer serious harm in Bangladesh, the Tribunal also finds that there is not a real risk that he will suffer significant harm there.  For the same reasons the Tribunal finds that the applicant is not a refugee within the meaning of s.5H(1)(a), the Tribunal finds that he does not meet the complementary protection criterion. 

9. For the sake of completeness, the Tribunal records the following matters.  The Department issued a certificate restricting the disclosure of a document prepared by an officer of the Department and made available to the Tribunal.  The document in question relates to an examination conducted by that officer with respect to certain documents submitted by the applicant.  In the document in question, the officer expresses concerns about the genuineness of the applicant’s documents.  There was no need for the Tribunal to disclose this to the applicant because the document in question is not relevant to the grounds on which this review has been determined.

10. The concerns expressed by the officer are merely the opinions of that officer and, to the observation of the Tribunal, were not substantiated by other supportive evidence.  The Tribunal gives no weight to the comments expressed by the officer and has reached its view on the applicant’s credibility and the weight to be given to his documents, based on its own independent reasoning which is set out above. 

11. The Department also made available a handwritten letter signed by a number of protection visa applicants in detention including the applicant stating that they provided ‘wrong information’ at their entry interviews and referring to providing police clearance from their respective countries.  The delegate discussed this document with the applicant and he said that he knew nothing about it. He was asked to sign it and so he did.  He told the delegate that he did not give false or wrong information at the entry interview.

12. The document in question does not specify the ‘wrong information’ those who signed the document claim to have put forward at the entry interview.  While the document refers to ‘police clearance’ the Tribunal cannot be certain as to what the applicant’s understanding of that expression was at the time he signed this document. In addition, given the applicant claims that he is illiterate, the Tribunal does not give any weight to the contents of this document and disregards it.  As discussed above, the Tribunal has explored the applicant’s evidence at the entry interview with him where that was inconsistent with his evidence to the Tribunal.  For the reasons given above, the Tribunal finds that there is inconsistency and the applicant has not provided a satisfactory explanation for that. 

13. To the Tribunal, the applicant did submit a letter from Bangladesh police issued in April 2014 stating that there were no ‘adverse records’ in his name.  Construing that statement in his favour, the Tribunal understood that statement to mean that since the case against him in the courts in Bangladesh, at that time, was discontinued or dismissed he could be considered not to have an adverse record.  However, for the reasons given above, the Tribunal does not believe that there ever was a case brought against the applicant in Bangladesh.  This document from Bangladesh police was submitted with the other documents that have been discussed above that purport to corroborate his claims about being arrested and a case taken out against him.  For the reasons given above, the Tribunal does not give evidentiary weight to these documents.

14. Finally, the Department also made available to the Tribunal the decision of the Immigration Assessment Authority related to an application for review made by the applicant to that body.  The Federal Circuit Court subsequently ordered that, in fact, the applicant was eligible to apply to this Tribunal for review.  While the Immigration Assessment Authority declined the applicant’s application to that body, in determining this review, this Tribunal is not bound by that decision. This Tribunal has made its own independent assessment of the applicant’s credibility and the merits of his protection claims.  For the reasons given above, the Tribunal finds that the applicant is not a witness of truth and the account of events on which his protection claims are based is false.

    CONCLUSIONS

15. 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 s.36(2)(a).

16. 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).

17. 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

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

Paul Millar
Member

“According to a website of the US Embassy in Dhaka that informs applicants about the risks of providing false information when trying to obtain a US immigration visa, "three common trends of fraud in immigration visa cases" in Bangladesh are:

• age fraud, whereby an individual falsifies their age and provides "legitimate documents with
false information";

• relationship fraud, whereby the applicant claims a particular relationship, such as a spouse or parent, or the identity of someone else, in order to gain a visa or immigration benefit; and

• employment-based fraud, whereby the applicant provides documents or other information to

prove that they meet the qualifications for a position for which they applied (US n.d.).”

See also DFAT, Country Information Report Bangladesh (2 February 2018).  At 5.24 DFAT states that there is a high prevalence of document fraud in Bangladesh in relation to birth certificates.  At 5.26 DFAT records that fraud in relation to national identity cards was endemic thus causing the government to introduce a ‘smart’ national identity card.  At 5.27 DFAT states that there is a high prevalence of document fraud in relation to passports.