1829574 (Refugee)

1829574 (Refugee) [2022] AATA 1003 (23 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1829574
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Nathan Goetz
DATE:23 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 February 2022 at 12:44pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – supporter of Bangladesh Nationalist Party – vague nature of the applicant’s claims – claimed threats were manufactured by the applicant – inconsistent evidence about family tree –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, r 1.12; 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

This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant was represented in the review application by [Mr A], lawyer.
BACKGROUND
The applicant identifies as a [age]-year-old male citizen of Bangladesh. He arrived in Australia on [date] April 2017 before departing on [date] April 2017. The applicant returned to Australia on [date] July 2017 and remained in Australia since that time. The applicant’s travel into and out of Australia occurred through a visitor visa that was granted on 3 April 2017.
On 8 August 2017 the applicant applied for a protection visa. On 25 August 2017 a delegate deemed the protection visa application invalid.
On 13 September 2017 the applicant applied for the protection visa that is the subject of the application for review. The protection visa application discloses that the applicant used [Mr B], lawyer, to apply for the protection visa. On 4 September 2018 the applicant participated in an interview with the delegate concerning his protection visa application. On 19 September 2018 the delegate refused to grant the protection visa on the basis that the applicant did not satisfy s 36(2)(a), (aa), (b) or (c) of the Act.
On 9 October 2018 the applicant applied to the Tribunal for review of the decision to refuse to grant him the protection visa. The review application form nominated [Mr B], lawyer, as the applicant’s representative and authorised recipient.
On 7 February 2022 the Tribunal wrote to the applicant and invited him to appear at a Tribunal hearing commencing at 10:30am on 22 February 2022 so he could give evidence and present arguments in relation to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because it had considered the information it had and was unable to make a decision that was favourable the applicant. The Tribunal was satisfied that a telephone hearing was appropriate given the COVID-19 pandemic and relevant health orders. The hearing invitation was sent to [Mr B] as the applicant’s representative and authorised recipient.
On 21 February 2022 the applicant wrote to the Tribunal and attached a completed Form MR5 appointing [Mr A] as his representative and authorised recipient. The applicant requested that the Tribunal hearing scheduled the following day be postponed. He wrote that his ‘previous immigration lawyer [Mr B] did not advise me in a timely manner that my hearing has been listed on the 22 February 2022. About a week ago he has advised me that he has withdrawn from representing me before the Tribunal. In response to this, I requested release of the file to my newly appointed lawyer and been advised that he has exercised solicitor’s lien over my file. I do not have access to any of my documents and seek adjournment to obtain proper representation.’
The Tribunal considered this request but was not persuaded to grant the postponement. The applicant had been given an SMS reminder of the Tribunal hearing on 15 February 2022 but had only applied for the postponement the day before the Tribunal hearing. Further, a representative has no right to question the applicant at a Tribunal hearing, meaning that the representative does not have an active part in a Tribunal hearing. Finally, the Tribunal would be asking the applicant at the Tribunal about his own lived experiences and claims for protection, rendering any appearance by a lawyer or migration agent unnecessary. The Tribunal advised the applicant that the request for a postponement of the Tribunal hearing was refused.
On 22 February 2022 the applicant appeared at the Tribunal hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Bengali languages. The applicant’s representative appeared at the Tribunal hearing by telephone.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s personal particulars
In the protection visa application form, the applicant details his personal information as follows. He is presently located in Australia and holds a Bangladesh passport that was issued [in] 2017 with an expiration date of [date] 2022. He obtained this passport from the Bangladesh Government. He was born in Sherpur, Bangladesh and has been married since [April] 1997. His ethnic group is Bangladeshi and is religion is Islam. He provided the name of his wife, one child, two parents and one brother as ‘non-accompanying members of the family unit.’ He declared that all of these family members lived in Sherpur, Bangladesh. He provided his residential address in Bangladesh as [Area 1]. He departed Bangladesh from Hazrat Shahjalal International Airport in Dhaka and entered Australia via Sydney as a visitor.
He declared that he was employed in Bangladesh from [June] 2001 to [July] 2017 at [Company 1], which is a [workplace] located in Dhaka, and also detailed his education achievements in Bangladesh.
Prior to the delegate interview, the applicant submitted a change of incorrect information form. The contents of that form are discussed later in this decision record.
Protection claims
The applicant provided responses to the ‘reasons for claiming protection’ in his protection visa application form and expanded upon those reasons through a written statement dated 3 September 2018 which was submitted to the delegate prior to the interview the following day. The applicant also provided documents to the delegate prior and subsequent to the delegate interview. The Tribunal has considered all the material that the applicant provided in support of his claims, including what he said to the delegate at interview and what he said at the Tribunal hearing. The Tribunal advised the applicant that it had read his material and listened to the interview with the delegate.
FINDINGS AND REASONS
The issue in this case is whether the applicant is a ‘refugee,’ or a person who meets the requirements for ‘complementary protection’ or a person who is a member of the same family unit of a ‘refugee’ or person who meets the requirements for ‘complementary protection.’
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference - Bangladesh
The applicant claims citizenship of Bangladesh and produced a Bangladesh passport to demonstrate his citizenship. There is no evidence that the applicant is not a citizen of Bangladesh as he claims, and there is no evidence that the applicant has the right to enter and reside in a third country. Accordingly, for the purpose of the protection visa assessment, the country of reference is Bangladesh.
Credibility assessment – The applicant is not a witness of truth
The Tribunal considered all the material it had related to the applicant’s protection visa application and review application. The applicant told the Tribunal hearing that he was not raising any protection claims other than those previously raised. Having considered all the material, the Tribunal has ultimately concluded that the applicant is not a witness of truth and has fabricated his protection claims in order to achieve a migration outcome, namely permanent residence in Australia. The Tribunal comes to this conclusion for the following reasons.
The applicant returned to Bangladesh, despite claimed past harm and a fear of return
The applicant’s written statement provided to the delegate prior to the interview detailed that the applicant decided to leave Australia because ‘I am going though a seriously risky and painful situation with the risk of getting arrest and murdered anytime.’ The applicant wrote that after staying in Australia for a short duration, he ‘got kind of feeling that Australia is a safe country and one of the developed and multicultural country with humanity.’ He wrote that after going back to Bangladesh in April 2017, ‘local Awami cadres visited me and demanding money.’ The Tribunal notes that the applicant told the delegate that he came to Australia on his first trip through a work conference. The applicant did not disclose his previous travel to Australia in the protection visa application form, despite being asked whether he had travelled to any countries in the last 30 years. If the reader was to limit their reading to the protection visa application form, it would suggest that the applicant had not previously travelled to Australia and that his first arrival to Australia was [date] July 2017.
The delegate asked the applicant was asked questions about why he would return to Bangladesh by both the delegate and the Tribunal. The applicant told the delegate that he returned to Bangladesh because he was on a conference connected with his employment and that if he did not return to Bangladesh it would look bad for his employer. The Tribunal asked the applicant a similar question, asking why he would return to Bangladesh after the conference if he feared harm in Bangladesh. The applicant did not address this clear inconsistency but repeated that he came to Australia and returned to Bangladesh, before noting that 228 people from Bangladesh, and a total of 900 people globally, came to the conference in Australia and that he did not have any hope of staying in Australia. He told the Tribunal that during his first trip to Australia he did not make anu inquiries about lodging a visa to remain in Australia because at that time he was very new and did not inquire about anything. Aware that the applicant had asserted in his subsequent written statement that when he returned to Bangladesh after the conference in April 2017, the ‘local Awami cadres visited me and demanding money,’ the Tribunal asked the applicant whether there was anything specific that caused the applicant to leave again for Australia. The applicant responded that he was involved with the BNP and a threat came from ‘the Government Party’ (which the Tribunal notes is the Awami League party). He said he discussed the matter with his wife and noted that he had a 12-month visa to come to Australia. When asked about the threat that came from the Awami League party which made him decide to return to Australia, the applicant said that since 2001 he started to get involved in BNP activity and participated in meetings, protests, got to know the leaders of the BNP and then had pressure from Awami League party members and received a threat. The Tribunal notes that the applicant told the delegate that the involvement of the applicant in the BNP from 2001 occurred when he commenced working at [Company 1] in Dhaka, Bangladesh.
The Tribunal has considered the applicant’s evidence about the reason for his return to Bangladesh, what he did about lodging a visa to remain in Australia during his first trip to Australia, and his reason for returning to Australia.
The Tribunal did not find the applicant a persuasive witness. If the applicant’s evidence asserted in his written statement about his claimed past experiences in Bangladesh was to be believed, ‘the RAB and police’ were searching for the applicant and attended his residence ‘a couple of times’ following the Caretaker Government coming to power in 2007, which resulted in ‘persecution starting country wide for political leaders and activists. Further, in January 2009 local Awami cadres were looking for him at his local residence but he was not at home and his wife was warned that he applicant needed to leave the BNP ‘otherwise the consequence would be terrible’ and since that time, ‘the applicant and his family was living a very stressful life with the risk of death.’ Additionally, in March 2009 the applicant was participating in a procession where he was attacked by Awami League and police, where the applicant was wounded and required hospitalisation. Following his release from hospital, the ‘applicant and his family started receiving threats over the phones and physically to lave politics and leave the area.’ The applicant detailed that ‘more threats and mental pressures from the activists’ came following the election of December 2014, and that he was ‘going through a serious risky and painful experience with the risk of getting arrest and murdered anytime.’
The Tribunal struggles to accept that if any of that was true, the applicant would not use his first trip to Australia to make enquiries about lodging a protection visa to remain in Australia. It is incredulous to believe that the applicant was more concerned about embarrassing his employer by not returning to Bangladesh at the end of the conference in Australia and decided to return to Bangladesh despite his claimed past harm. It is for this reason that the Tribunal is satisfied that the applicant’s written protection visa application form disclosed no previous travel to Australia, because the disclosure of that travel and his return to Bangladesh would highlight that the applicant had no fear of harm returning to Bangladesh. The Tribunal does not accept that the applicant would not make any inquiries about remaining in Australia was because he was ‘new here.’ If the applicant claimed to fear harm based on his previous experiences, the Tribunal is satisfied that the applicant would have done something about it during his first trip to Australia.
Further, the Tribunal found the applicant’s explanation to the Tribunal about why he departed Bangladesh for a second time to be vague and lacking in meaningful detail. He referred broadly to threats at the Tribunal hearing, and did not detail any demands for money from Awami League cadres as claimed in his written statement, the assertion of which was also very broad. The Tribunal is satisfied that the vague nature of this evidence (which it would be reasonable to expect to be detailed, given it was something that appeared to finally make the applicant to decide he could not longer live in Bangladesh), was due to the fact that the claimed threats were manufactured by the applicant.
When the Tribunal assesses the other concerns it has about the applicant’s credibility as outline in this decision record, it concludes that the applicant’s return to Bangladesh and failure to make inquiries about remaining in Australia on his first visit, and failure to declare his previous travel in his protection visa application form, was due to the fact that the applicant’s protection claims are fabricated.
Inconsistent family tree provided in the protection visa application form, written statement and oral evidence to the Tribunal
The Tribunal acknowledges that inconsistent information about an applicant’s family tree may not always be germane to an assessment of protection claims. However, a failure to provide accurate personal information may demonstrate a flexible approach to the truth on behalf of an applicant, and a willingness to withhold information from a decision-maker because an applicant sees a benefit in doing so. The motive of withholding information does not need to be readily apparent to a decision-maker to avoid a determination that the applicant has deliberately withheld information.

In the protection visa application form, the applicant detailed his ‘non accompanying members of the family unit’ as wife, child, father, mother, and one brother named [Mr C]. The protection visa application form therefore demonstrates that the applicant was one of two children. The day before the delegate interview, the applicant provided a Form 1023 – Notification of incorrect answer(s) where he wrote that the information that was incorrect was: ‘One brother details not included. Sister’s country of residence: [Country 1]. Unemployment from 1986 to 2001. College name is [College 1].’ He wrote that the correct information was ‘Have one brother, [Mr D]. Sister’s country of residence is Bangladesh. Unemployed 1986 to 1989. College name is [College 2].’ The also wrote that the name of the secondary school he provided was incorrect. He had written [a] Primary School when the correct information was [College 1].’ As noted previously, the applicant did not claim to have any sister living in ‘[Country 1]’ or anywhere else in the written protection visa application form.
At the Tribunal hearing, the applicant told the Tribunal that he was one of six children. He identified the siblings (from oldest to youngest) as:
·     [Mr C], who the applicant identified as his brother who was more than [age] years of age
·     [Mr E], who the applicant identified as his brother was 15 years older than him and died about two years after the applicant arrived in Australia.
·     [Mr D], who the applicant identified as his brother who was 12 years older than him and died about 18 months after the applicant arrived in Australia.
·     [Name deleted], who the applicant identified as his sister who was 8 years older than him.
·     [Name deleted], who the applicant identified as his sister who was 5 years younger than him.
The Tribunal found the inconsistent evidence about something as basic as the applicant’s family tree very troubling. There was no explanation as to why the applicant omitted the details of two of his brothers and his two sisters in his protection visa application form. It was also very strange that when the applicant provided the Form 1023, he did not detail that he had two sisters. The reference to [Country 1] being the present country of reference in the protection visa application form related to the applicant’s mother. It was very strange that the applicant would not provide details of his two deceased brothers in the protection visa application form, as the applicant’s evidence was that they were alive at the time he applied for the protection visa application. It was also strange that [Mr E] was not referred to in the written statement by the applicant that he provided to the delegate the day before the Tribunal hearing, when he referred to a cousin as ‘late’ and noted that both his parents were deceased ‘long before.’ It is curious as to why his parents would be included in the protection visa application form if they were deceased, but his two brothers were not included.
The Tribunal really struggles to understand why the applicant would provide inconsistent evidence about something as basic as his family tree. As the Tribunal earlier observed, the Tribunal does not know the motive for the withholding of the full details of the applicant’s family tree (assuming that it is correct that the applicant was one of six children), but is satisfied that the applicant saw an advantaged in doing so. The Tribunal is satisfied that the inconsistent evidence provided by the applicant about his family tree demonstrates that he has a flexible approach to the truth.
When the Tribunal assesses the other concerns it has about the applicant’s credibility as outlined in this decision record, it concludes that the applicant’s flexible approach to the truth as demonstrated concerning his family tree permeates his protection claims.
Inconsistent evidence about the family member who inspired the applicant to become involved in politics in Bangladesh
The applicant’s written statement details that most of his family member are supporters of the Bangladesh Nationalist Party and that one of his cousins was a prominent local leader of the Bangladesh Nationalist Party. The applicant wrote that spending time with this cousin ‘enabled him to learn the ideology of the BNP, constitutional and other basic differences with the other political parties….such learning made me passionate in involving in the BNP since by boyhood. Moreover, when I saw my cousin delivering speech in front of massive people. I felt overwhelmed.’ Yet, to the delegate, the applicant initially said that it was a brother who was a BNP leader and gave him directions about how to get involved in politics. When the delegate pointed out to the applicant that his written statement said it was not a brother but a cousin who inspired him to get involved in the Bangladesh Nationalist Party, the applicant then changed his evidence and said it was his cousin who did this. He explained to the delegate that he used ‘brother’ in the terms of a ‘political brother’ and that he was actually meaning a cousin. When the Tribunal raised the inconsistency with the applicant for his comment, he said he did not have the papers that he lodged and that it had been a long time since the interview with the delegate and could not remember why he initially said to the delegate that it was his brother, not his cousin, who was a local BNP leader.
The Tribunal accepts that some time has passed since the delegate interview but is not persuaded by the applicant’s explanation to the delegate about why he initially identified his brother and not his cousin as the political leader who inspired him to do work for the BNP. The Tribunal is satisfied that the applicant clearly forgot the his written claim that it was his cousin who was the local BNP leader and when he told the delegate at interview it was his brother, and that if the delegate had not brought the inconsistency to the applicant’s attention, he would have continued with the assertion that it was his brother as opposed to his cousin who was the local political leader of the BNP. The Tribunal is satisfied that the inconsistency is attributable to the fact that the applicant’s claim about a member of his family being a local BNP leader was fabricated. The Tribunal is further satisfied that the willingness to fabricate this evidence demonstrates that the applicant is prepared to manufacture evidence in order to be granted a protection visa.
The applicant’s political profile in Bangladesh and Australia
The applicant detailed in the protection visa application form that he was seeking protection because he could not return to Bangladesh. He claimed that he left Bangladesh because he was ‘politically involved with the BNP and some influential and powerful people from Awami League threatened me to punish and took action against me due to political opinion.’ He claimed that he experienced harm in Bangladesh. When asked to provide details, he wrote ‘I was threatened by powerful people. I was politically involved with the BNP and some influential people and powerful people form Awami League threatened me to punish and took action against me due to political opinion.’ He was asked whether he sought help within Bangladesh after the harm and he indicated he did. When asked to detail the help he sought, he wrote that that he ‘tried to seek help from police but they were unable to help.’ This was because ‘the people threatening me were powerful to continue threatening me.’ He was asked whether he moved or tried to move to another part of Bangladesh to seek safety and he indicated he had not. He was asked to provide details and wrote that ‘those people were powerful and well linked they could find me anywhere in Bangladesh.’
The applicant was asked to explain what he thought would happen to him if he returned to Bangladesh. He claimed that he ‘might be killed’ or ‘fall in extreme situation for supporting BNP and heavily punished.’ He claimed that he thought he would be harmed or mistreated if he returned to Bangladesh and repeated his previous answer when asked to detail why he thought this would occur. He did not think that the authorities could and would protect him because ‘police were unable to help me because the people threatening me were powerful to continue threatening me.’ He did not think that he could relocate within Bangladesh because ‘those people are powerful and well linked. They could find me anywhere within country.’
In the written statement provided to the delegate the day prior to the interview, the applicant detailed that ‘later in 2001 I have started my new job at [Company 1], Savar EPZ, Dhaka and migrated to Savar from Gaizpur and had been living and serving in Savar till 2017 before coming to Australia.’ Since living in Savar, he ‘became more involved with the BNP and used to spend his leisure time in the local BNP office.’ He wrote that he took part in ‘various rallys, programs of BNP and became ‘well known to the local and central leaders of the Savar BNP. The applicant claimed that as a result of this, he ‘was elected as the [Position 1] of the BNP [Ward 1] in 2002. At the delegate interview, he discussed whether this position was one that was appointed or voted on at election, and spoke about his duties calling people to promote the BNP to persuade those people to join the BNP.
However, when asked at the Tribunal hearing whether he held any positions within the BNP in either Bangladesh or Australia, or whether he was just a general member, the applicant said he had not held any positions. Given the applicant’s narrative, as best the Tribunal can understand it, was that it was as a result of participating in various BNP activities and association with BNP leaders that saw him made [Position 1] of the BNP [Ward 1] in 2002, the Tribunal’s assessment of the applicant failing to say at the Tribunal hearing that he held the position of [Position 1] is attributable to the fact that the applicant did not hold that position as he claimed in the written statement. The Tribunal is satisfied that the passage of time from when the written statement was settled and the appearance at the Tribunal hearing resulted in the applicant forgetting he made this claim. The Tribunal is satisfied that he forgot he made this claim because there is no truth to it.
The Tribunal acknowledges that subsequent to the delegate interview, the applicant provide a letter dated [September] 2018 which was purported to be from a person who was identified as the ‘President of the BNP for the Dhaka District, Bangladesh.’ The letter spoke of the applicant being known to the author, and being an active political leader, which is why he was targeted by the Awami League. Concerningly, that letter also contains the assertion that the applicant was the ‘[Position 1],’ as well as asserting that the applicant was ‘Vice-President of the BNP, [Ward 1].’ The Tribunal notes that the applicant never claimed in his written statement to be ‘Vice-President’ of [Ward 1]. The Tribunal does not accept that the contents of the letter dated 10 September 2018 are true due to the fact that the applicant did not claim at the Tribunal hearing to hold any leadership positions within the BNP. Given the confused evidence about whether the applicant held any leadership positions with the BNP, the Tribunal is satisfied that the contents of the letter are not true.
Turning to the applicant’s political profile in Australia, he did not claim in the protection visa application form that he risked harm in Bangladesh because of his political profile in Australia. He did not claim to be a member of any BNP association in Australia. However, in the statement provided to the delegate the day before the delegate interview, he claimed that ‘Now I am living in Sydney and having a good involvement with the BNP in Australia.’ He provided a letter to the delegate dated [in] August 2018 from a person who was identified as the President of the BNP Australia. That letter detailed that the applicant was personally known to the applicant since July 2017. It claimed that after the applicant’s arrival in Australia, he joined the BNP Australia and became a general member and that his contribution is significant and well known. The letter asserted the author’s assessment of the Awami League actions towards the BNP and other opposition parties. The letter claimed that the applicant was ‘suffering lots of threat including his family from Awami Government people. The applicant and his family have no security in Bangladesh, so the applicant was bound to depart from Bangladesh to save his life.’
At the delegate interview, the applicant said that he continued to support the BNP while in Australia. He said that two or three months after his final arrival in Australia, he came to know that there were BNP contacts in Australia and that he was currently a member of that group in Australia. He was asked what that involved, and he said he participated in meetings. He noted that he went to a meeting [in] September 2018 to celebrate the establishment of the BNP 40 years previously and at the meeting the group talked about how the BNP would win the next Bangladesh national election. The delegate raised with the applicant the inconsistency in what he was saying about when he became involved with the BNP in Australia at the interview given the contents of the letter. The applicant did not address the inconsistency and said that he could not make any contact with the BNP in Australia until two or three months after his arrival.
At the Tribunal hearing, the applicant said that about six months after he arrived in Australia, he came to know of a Bangladeshi who was involved in politics and the applicant started to attend meetings. The applicant confirmed that at the time he lodged his protection visa application in September 2017 he was not involved with the BNP in Australia.
Given the letter asserts that the applicant was known to the author since July 2017, which is in conflict with the applicant’s oral evidence to both the delegate and the Tribunal, the Tribunal concludes that the contents of the letter are not true. The Tribunal does not accept that the applicant has been a member of the BNP in Australia
When the Tribunal assesses the other concerns it has about the applicant’s credibility as outline in this decision record, it concludes that the letter from the BNP in Australia was generated not because the applicant is a member of that organisation or because he has participate in events as claimed in the letter. Rather, the Tribunal finds that the letters contents are not true and that the letter was only generated to lend credibility to the applicant’s false claims.
Timing of production of medical report to corroborate claimed harm in Bangladesh, vague details of harm detailed in protection visa application form
The protection visa application form asked the applicant to detail incidents of harm he received in Bangladesh. In response, the applicant wrote ‘I was threatened by powerful people. I was politically involved with the BNP and some influential people and powerful people form Awami League threatened me to punish and took action against me due to political opinion.’ That detail appeared to be deliberately vague, especially when the form asked the applicant to give details including the type of harm the applicant experienced. It is reasonable to expect that if the applicant was detailing his owned lived experiences, there would be specifics of when, where and what harm he experienced detailed in the protection visa application form. It was not until the written statement was provided that the applicant detailed that he experienced physical harm where he claimed that ‘on [date] March 2009 on the way to a procession (which the applicant claimed to have a major role in organising), he was ‘attacked by armed Awami League cadres and police. Several leaders and activists of the BNP were wounded, including himself. He was brutally attached by the cadres and was severely injured in his left foot. He wrote that as far as he could remember one young man with a sharp metal iron bar hit the applicant on his head and when the applicant fell down the assailant put a sharp bay in his left food. There was severe bleeding and the applicant became senseless.
The day before the delegate interview, the applicant provided a letter from [Dr F], who was apparently a doctor in Bangladesh. The letter was dated 10 December 2017 and asserted that the doctor’s records show that the applicant came to hospital on [date] March 2009 with a serious injury on his right leg. The letter detailed that the applicant was released on [date] March 2009 after treatment. The delegate discussed with the applicant the inconsistency between his written statement where he wrote that he was injured on his left leg and the medical report where the injury was detailed on his right leg. The applicant said that the injury was on his right leg, and that he had no idea why his written statement claimed that the injury was on his left leg.
At the Tribunal hearing, the Tribunal wanted to know more about the letter from [Dr F]. The Tribunal asked the applicant how he came to obtain the report from [Dr F]. The applicant said that he did not have the document with him at the moment, and noted that his previous representative had kept the papers. The Tribunal found that a very odd response, as the applicant would not need a copy of documents to tell the Tribunal how he came to obtain a document he provided. The applicant then said that he obtained this report after he came to Australia. He said that his representative told him to obtain the medical certificate. The applicant said that he had a niece in Bangladesh and he requested that she obtain this from the doctor. She went and did so. The applicant confirmed that the medical certificate was not a certificate he already had, but a new certificate obtained from the doctor through his niece. The applicant said he obtained this certificate fifteen days prior to the delegate interview on 4 September 2018. The Tribunal asked why the applicant had not obtained this certificate prior to lodging his protection visa application form. The Tribunal thought that it would be reasonable that this document would have been included in the protection visa application form as it would corroborate his claims (although the specifics of the claim were not raised in the protection visa application form as discussed previously. The applicant said he did not obtain the certificate prior to departing Bangladesh because he made the decision to depart Bangladesh ‘suddenly.’ The applicant said that he did not discuss with the lawyer who helped him prepare the protection visa application form obtaining any documents. The Tribunal asked why the injury was not detailed in the protection visa application form and the applicant said that he did not know what to provide with the form and that he only provided what the lawyer asked. The applicant said that the lawyer he used was from Bangladesh and he answered the questions in Begali and had the answers translated for him. The Tribunal notes that the department records indicate that the applicant had the same representative from the lodgement of the protection visa application form until 21 February 2022.
The Tribunal does not accept that the leg injury from [date] March 2009 would not have been detailed in the protection visa application form if the applicant had been injured as claimed. The form was prepared with the assistance of a registered migration agent, and it is general knowledge that a failure to detail the specifics of a claim in the protection visa application form may have consequences for the credibility of those claims. The Tribunal also does not accept that the migration agent would not ask the applicant to provide corroborative documents to attach to the protection visa application form. The Tribunal also found the applicant’s evidence about his niece obtaining a medical certificate that was dated in 2017 to be very odd. The date of the certificate suggests that it was in existence from December 2017, yet the applicant claimed to have only obtained it from his niece attending on the doctor 15 days prior to the interview. The inconsistency between the written statement and the contents of the letter as to which leg of the applicant was injured also raises doubts about whether the medical certificate is genuine. The Tribunal is satisfied that its concerns about the date of the medical certificate, the timing of its production to the delegate, and the inconsistency about which leg was injured demonstrate that the document is not genuine and has been manufactured in order to corroborate the applicant’s claims. The Tribunal does not accept that the applicant was injured as he claimed.
Residential and employment history in Bangladesh inconsistent with applicant’s claimed narrative

In the protection visa application form, the applicant declared that he lived at one address from [July] 1987 until [July] 2017. The address was [Area 1]. The Tribunal understands that [Area 1] is a upazila/thana (administrative unit of a district) of the Sherpur District in the Mymensingh Division of Bangladesh. The applicant told the Tribunal at the hearing that he lived at an address in [Area 1] from [July] 1987 to [July] 2017.
The applicant’s employment history as detailed in the protection visa application form declares he had one employer being [Company 1], in Savar, Dhaka from [July] 2001 to [July] 2017. The Tribunal struggles to accept that the applicant could work for that employer who is based in Dhaka when the applicant lived in [Area 1], as the two places are roughly four hours apart by car.
The applicant’s claim that he lived at that one address is inconsistent with the details contained in the written statement provided by the applicant on 3 September 2018 where he claimed, for example, that he moved to Gazipur, Dhaka for a job in 1989 (and where he participated in ‘numerous political events of the local BNP and built-up relationships with BNP leaders whom he named), and also inconsistent with his claim that the applicant relocated in 2001 to Savar, Dhaka for a new job, during which time the applicant became more involved with the BNP politics in a local and state level. The applicant also claimed in the protection visa application form that he never relocated within Bangladesh after experiencing harm, but in his statement, he refers to people ‘searching for him at his residence a couple of times, but as he had fled to other parts of the country, they were unable to find the applicant.’
The Tribunal finds the applicant’s evidence about where he lived and who he worked for as detailed in the protection visa application form to be confused when considered in light of he applicant’s written statement that was provided to the delegate prior to interview. If the applicant moved to Gazipur, Dhaka for employment in 1989 then that employment (and his corresponding address) would have been declared in the protection visa application form, especially when the applicant claims to have been involved in political activity at that time. If the applicant moved to Savar, Dhaka for employment in 2001 then the applicant’s corresponding residential address would have been declared in the protection visa application form, especially when the applicant claims to have been involved in political activity at that time (and that people searched for him at this residential address). The Tribunal is satisfied that the confusion can be attributed to the fact that the applicant has fabricated his protection claims and that he never left [Area 1] to pursue employment elsewhere, which therefore results in the Tribunal not accepting that the applicant was engaged in any political activity or experienced any harm during those claimed periods of employment from 1989 and 2001.
When the Tribunal assesses the other concerns it has about the applicant’s credibility as outline in this decision record, it concludes that the confusion about the applicant’s residential and employment history can be attributed to the fact that the applicant has fabricated his protection claims and that he never left [Area 1] to pursue employment elsewhere, which therefore results in the Tribunal not accepting that the applicant was engaged in any political activity or experienced any harm during those claimed periods of employment from 1989 and 2001.
CONCLUSION
The Tribunal found the applicant to be a wholly unimpressive witness. He provided inconsistent evidence about such basic aspects of his narrative that it leads to the Tribunal funding the applicant is not a witness of truth. His return to Bangladesh is telling that he had no fear of harm in that country. The Tribunal gives no weight to the applicant’s claims and is satisfied that the applicant’s protection claims have been manufactured in their entirety.
The Tribunal is not satisfied that the applicant or his family support the BNP. The Tribunal is not satisfied that the applicant nor his family have even been harmed or threatened with harm in Bangladesh because of their claimed support of the BNP. The Tribunal is not satisfied that the applicant or his family have had any involvement (however described) with the BNP in Bangladesh. The Tribunal is not satisfied that the applicant left Bangladesh because of claimed harmed or threats of harm to himself or his family. The Tribunal is not satisfied that the applicant refuses to return to Bangladesh because he fears harm because of his or his family involvement with the BNP or past experiences of threats of harm. The Tribunal is not satisfied that the applicant has participated in any BNP activity in Australia.
The Tribunal is not satisfied that the applicant or his family are of any adverse interest to any person, group or authority in Bangladesh. The Tribunal rejects the applicant’s claims in their entirety. The Tribunal is not satisfied that there is any truth to the applicant’s claims.
Refugee
For the reasons given above, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Bangladesh due to his race, religion, nationality, membership of a particular social group or political opinion.
Therefore, the applicant is not a person in respect of whom Australia owes protection obligations under s 36(2)(a) of the Act.
Complementary protection
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to Bangladesh, there is a real risk the applicant will suffer significant harm.
Therefore, the applicant is not a person in respect of whom Australia owes protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit
There is no evidence that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa).
Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
Member

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

[2022] AATA 1003

23 February 2022

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Immigration

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Statutory Interpretation

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Natural Justice

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