1907926 (Refugee)

[2021] AATA 5274

1907926 (Refugee) [2021] AATA 5274 (9 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1907926

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:James Lambie

DATE:9 November 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 09 November 2021 at 11:03am

CATCHWORDS

REFUGEE – Protection visa – Bangladesh – Federal Court remittal – fears harm from AL members – membership of a particular social group – Individuals who have witnessed corruption and held information adverse to the interests of the AL –land dispute – cannot be satisfied that the applicant was an active member of JEI – inconsistent evidence – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5J, 36, 65, 91, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Bangladesh, applied for the visa on 20 June 2013 and the delegate refused to grant the visa on 5 September 2014.

3. This matter was remitted to this Tribunal pursuant to an order of the Federal Court of Australia (FCA) [date] March 2019.  

4. The applicant appeared before the Tribunal on 5 March 2020 and 18 May 2021 to give evidence and present arguments. The first hearing was adjourned at the applicant’s request, citing a medical condition.  The second hearing was set down some time later owing to difficulties contacting him. The applicant appeared by videoconference from the Tribunal’s Sydney registry. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

   RELEVANT LAW

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

   Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

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

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

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

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

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

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

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

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

    Complementary protection criterion

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

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

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

    Mandatory considerations

19. 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

20. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background:

21. The applicant is a [age]-year-old Bangladeshi national from [Kushtia] District, Khulna Division in Bangladesh.

22. The applicant is an unauthorised maritime arrival who arrived in Darwin [in] March 2013 on a boat.

23. On 21 May 2013, the applicant was granted a Bridging Visa E, which expired on 16 July 2013.

24. On 20 June 2013, the applicant lodged an application for a Class XA, Subclass 866 (Protection) visa, which was refused by the Department on 5 September 2014.

25. On 22 July 2013, the applicant was granted a second Bridging Visa E, which expired on 27 July 2016.

26. On 10 October 2014, the applicant applied for merits review of the Department’s decision of 5 September 2014 to refuse to grant his application for a protection visa.

27. On 28 June 2016, the First Tribunal affirmed the decision not to grant the applicant a Protection visa.

28. On 14 February 2018, the applicant was granted a Class UJ, Subclass 449 (Temporary Humanitarian Stay) visa, which expired on 21 February 2018.

29. On 14 February 2018, the applicant was granted a third Bridging Visa E, which came into effect on 22 February 2018 and expired on 14 August 2018.

30. [In] September 2018, the Federal Circuit Court of Australia (FCCA) quashed the First Tribunal’s decision and ordered that the matter be remitted to the Tribunal for reconsideration.

31. On 5 October 2018, the Minister for Home Affairs appealed the judgement of the FCCA delivered on [date] September 2018 to the FCA. On [date] March 2019, the FCA dismissed the appeal and this matter was remitted to the Tribunal for reconsideration.

32. The applicant has been an unlawful non-citizen since [date] August 2018.

    Claims:

33. The applicant’s protection claims are set out in his protection visa application, written claims and submissions, and the delegate’s decision.

34. The applicant claims his father was a supporter of the Jamaat-e-Islami party (JEI) and [Mr A] was a supporter of the Bangladesh Awami League (AL).

35. The applicant claims his father purchased land from [Mr A].

36. The applicant claims that around the end of 2008, the AL party won the national election and he learned that a brother of [Mr A] was a “[certain leader]” of the AL.

37. The applicant claims that in 2009, 40 to 50 members of the AL, including [Mr A] and his family members came to the applicant’s family home demanding the return of the land sold to his father and made threats to forcibly take the land.

38. The applicant claims that in April 2011, the same 40 to 50 members of the AL returned to his family home to demand the return of the land in dispute and physically assaulted his family members.

39. The applicant claims his father decided to return half of the disputed land to [Mr A] to avoid further conflict.

40. The applicant claims his father died in August 2011.

41. The applicant claims that in November 2011, he was assaulted by AL members with a stick and a sword while cycling to the markets. He claims he was hospitalised and treated for his injuries. He claims he did not report the assault to the police because he is not an AL supporter and he did not believe it would make a difference.

42. The applicant claims that in August or September 2012, 40 or 50 members of the AL returned to his family home, threatened the family, requested the return of the remaining land in dispute, and attacked his brother.

43. The applicant claims that in November or December 2012, the same 40 or 50 AL members returned to the family home and again demanded return of the land in dispute. He claims they assaulted him and threatened to kill him if the family did not surrender the remaining land to them.

44. The applicant claims he made plans to depart Bangladesh for his safety and since arriving in Australia, he has learned from his family that AL members have returned to his family home several times and assaulted his family.

45. The applicant claims to fear harm from AL members, Bangladesh authorities and [Mr A], because of the current AL dominated government and extortion of his family by their supporters and an AL official related to [Mr A].

46. The applicant claims to fear he will be targeted because of his and his father’s support of the opposition party, J-e-I and his knowledge of corruption and extortion by AL members in his local area. He claims to fear harm for reason of his membership of a particular social group in Bangladesh: Individuals who have witnessed corruption and held information adverse to the interests of the AL in Bangladesh.

    Evidence:

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

    (a)the applicant’s protection visa application forms which were lodged on 20 June 2013;

    (b)the applicants’ identity documents provided to the Department;

    (c)the protection visa decision record dated 5 September 2014 (delegate’s decision), a copy of which has been provided to the Tribunal by the applicant;

    (d)Department file [concerning] the applicant’s protection visa application, which includes all documents submitted by the applicant in support of his protection visa application, including a statutory declaration of the applicant, sworn on 6 June 2013 and all annexures to this statutory declaration, including an untranslated copy of his birth certificate, an untranslated copy of his Certificate of Good Character from his Local Chairman; and a copy of his Secondary School Certificate;

    (e)all documents submitted to the first and current Tribunal in support of the applicant’s application for review, including:

    ·written submissions from his representative dated 17 September 2015, 2 November 2015 and 12 November 2015 and all annexures to those submissions, including a medical certificate, photos of the applicant’s family home, support letters from the Jamaat-e-Islami and newspaper articles; and

    ·a police report filed by the applicant’s brother on or around 6 July 2015;

    (f)country information from the applicant’s submissions, the Department of Foreign Affairs and Trade’s latest country information report on Bangladesh, published on 22 August 2019 (DFAT Report on Bangladesh) and other sources concerning Bangladesh relevant to the applicant’s claims, as set out below.

    Country of reference:

48. The applicant claims to be a citizen of Bangladesh. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Bangladesh is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

49. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Hearing:

50. The applicant attended a hearing before the Tribunal on 5 March 2020 and 18 May 2021 to give evidence and present arguments. The applicant appeared at the first hearing in-person from the Tribunal’s Brisbane registry and his representative appeared by telephone. The applicant appeared at the second hearing by videoconference from the Tribunal’s Sydney registry. The hearings were conducted with the assistance of an interpreter in the Bengali and English languages.

51. After dispensing with the hearing preliminaries, including a description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa, he must either be recognised as a refugee or be a person entitled to Complementary Protection.

52. The Tribunal explained that under Australian law, to be a refugee, he must have a well-founded fear of persecution in Bangladesh. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he is returned to Bangladesh. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Bangladesh.  

53. The Tribunal took [the applicant] to his protection visa application and to the evidence given and submissions made to the Department and the previous Tribunal by him and on his behalf.

54. [The applicant] told the Tribunal that he left Bangladesh in late 2012 because of issues and problems his family had with other people in his village.  There was some fighting and, as a result, he had to flee the village. He said that a few attempts were made to kill him and that he realised it was not safe for him to stay.  He said that he had submitted evidence of a severe beating he had suffered at the hands of others in the village.

55. The Tribunal asked [the applicant] about the origins of these problems.  He told the Tribunal that his family lived on a relatively large farm by local [standards].  The farm raised a variety of crops and animals. He is the youngest member of the family. 

56. [The applicant] told the Tribunal that, in about 2001 or perhaps earlier or perhaps much later, his father purchased an additional non-contiguous block of [land].  The land was bought from a Hindu family.  [The applicant]’s father registered the land in his own name. 

57. [The applicant] told the Tribunal that when the family went to the land to harvest the crops, people associated with [Mr A] stopped them and told them the land belonged to [Mr A].  [Mr A] was a near neighbour.  He told the Tribunal that he had not seen the land register and could not say for sure how the dispute arose.  However, both parties claimed to be on the register as the owner.

58. The dispute was taken to a village mediation process.  [The applicant] told the Tribunal that his family was successful in this action, but [Mr A] said he was too powerful to need to abide by the decision and never left the land and that this how they started torturing him and his family.  The Tribunal brought [the applicant] back to the matter of the mediation process.  It was put to [the applicant] that he had previously given evidence that a compromise was reached whereby his father and [Mr A] each kept half of the land. He said that this proposal had been made at the mediation, but that [Mr A] had said it was not possible.  The Tribunal reminded [the applicant] that his previous evidence had been that this compromise had been made.  He said it had been recommended by the village council, but [Mr A] did not accept it and continued to occupy the land.  In 2011, his father died and his older brother, who had responsibility for the matter, was not interested in it and did not pursue it.

1. [The applicant] said that it was he who took responsibility for pursuing the dispute.  He said he approached [Mr A] and said that they should settle the dispute or seek another resolution.  [Mr A] told him that he was keeping the land and would never give it up. 

2. On about [date] November 2011, he says, he was riding his bicycle towards the bazaar area when, as he came near to [Mr A]’s house, he was set upon by a group of about 10 to 15 men.  They asked him why he kept talking about the land.  They then told him to get off his bicycle and started beating him.  They used sticks and he saw other weapons.  He said he was knocked unconscious with a stick.  He was found by other villagers and taken to the hospital.  He said he still has the scar from the head injury.  The Tribunal took him to his previous evidence and asked if he no longer claimed that he was struck with a machete.  He said he was surrounded by a group of men and could not say for sure.  He thinks now it was a stick.

3. [The applicant] told the Tribunal, in response to its question, that [Mr A] was not present in the group. He said two or three of [Mr A]’s brothers were there.  The Tribunal put to [the applicant] that, in his evidence to the delegate and the previous Tribunal, he had claimed that [Mr A] was part of the group. He said that it was some time since he had given that evidence and asked how he could be expected to remember what he had told the delegate.  The Tribunal put to him that this attack was central to his claim and he was not being asked to recall what he said to the delegate, but rather what had happened.  He said it was eight years since he had spoken to the delegate. It was put to him that the credit of his evidence might be questioned if his account was different from that which he had previously given.  He said that he had heard from others that [Mr A] had arrived at the scene after he had been beaten senseless.  The Tribunal put to [the applicant] that this was the first time he had provided that detail.  It suggested to him that he had come up with that detail in order to reconcile his inconsistent accounts. He denied making anything up and said he was providing all he could recall.  He said that he only regained his senses when he was at the hospital.

4. The Tribunal took [the applicant] to the report of [a named doctor] of [date] November 2011.  The Tribunal asked why the certificate, apparently written on the date of his follow-up treatment, was written in English rather than Bengali. He said that, when the certificate was originally issued, he was not aware that he would wind up in Australia and he would need it later on.  Once he was in Australia, he telephoned his brother, who visited the doctor, described the situation, and requested the certificate.

5. It was put to [the applicant] that he had given evidence that there were 10 to 15 involved in the attack but had previously claimed that there were four people involved.  He said that the lawyers and/or interpreter he had at the time had made a mistake.

6. The Tribunal took [the applicant] to his previous evidence that he had been hospitalised for 20 days as a result of the attack.  He confirmed that this was the case. It was put to him that the medical report does not say that:  it says that his wounds were cleaned and dressed and that he was discharged on the same day.  He maintained that he was in hospital for 20 days.  He said that he was rendered unconscious following the blow to his head, and that the attack continued, causing injuries to his legs and back.  It was put to him that the report does not mention any suspected concussion, or any record of him presenting to the hospital unconscious. It mentions two lacerations and some bruises and swelling, and goes on to record that he was discharged, with a follow-up consultation 20 days later.  He said he received [stitches] [which] showed the men were trying to kill him.  The Tribunal put it to him that the medical record shows treatment of relatively superficial injuries and discharge on the same day.  There is no record of any injury requiring a stay in hospital. He said that he has a scar [to] this day.  The Tribunal put to [the applicant] that his claims about his injuries and hospitalisation are not consistent with the medical report.  [the applicant] said that, while in hospital, he had so much pain in his legs that he could not stand up.  The doctors investigated and found there were no broken bones. It was put to [the applicant] that this is nowhere to be found in the medical report.  He said that, in Australia, the power of a doctor is the same as a magistrate and that they are careful and comprehensive in their reports, but it is not the same in Bangladesh.  He said that, if he had realised the medical report was inconsistent with his claims, he would not have submitted it.  The Tribunal reminded [the applicant] that his evidence was that he had requested the report via his brother to give to the delegate eight years ago, and that it was also presented to the previous Tribunal, which had found it inconsistent with his claims.  He said he had not bothered to read what was said about the report and, in any event, if he had obtained a different report, the Tribunal might consider both of them fraudulent.

7. [The applicant] was asked to confirm that this claimed attack was motivated by his revival of the land dispute following his father’s death.  He agreed that it was. The Tribunal put to him that he had previously claimed there was a political dimension to the incident.  He said that [Mr A] and all his followers were supporters of AL and that [the applicant]’s family were known as JEI supporters and, therefore, bad people in the eyes of [Mr A].  The Tribunal asked [the applicant] if he maintained his claim that a large number of AL supporters had come to the family home and threatened him and his family.  He confirmed that he did.  He was asked on how many occasions this had occurred.  He said that, after his father died, they would visit his home every few days.  He agreed that they arrived in groups of 40-50 people.  The Tribunal put to him that his previous evidence was that this occurred on two occasions:  one in 2009 and one in April 2011.  He said that his father died in 2011 and the dispute was ongoing.  The groups came to the family home on numerous occasions before and after his father’s death.  He was not sure if his previous evidence was to that effect. The Tribunal warned [the applicant] that numerous inconsistencies in his evidence may make it difficult for the Tribunal to accept his claims.  It may also affect the credibility of his claims of political persecution if he did not raise this issue without being prompted.

8. The Tribunal asked [the applicant] if it is his case that these visits to the family home were motivated both by the land dispute and the political rivalry. He agreed that it was.  The Tribunal asked why, if [Mr A] already had complete control of the land, these people would be sent to intimidate his family.  He said that, in respect of the later visits, it was because both [Mr A]’ and his father’s names were on the land register.  Their demand was solely to rectify the title in [Mr A]’ favour.  He was asked why, if [Mr A] were as powerful as he claimed, he would care about the village council’s decision or the entry on the title.  He said that the village council had decided that, because his father’s name was first registered on the title, his name would remain on it.  [Mr A] was trying to ensure that his own name would be the only name on the title.

9. The Tribunal asked about [Mr A]’s position with AL.  [the applicant] said that his younger brother [held a senior position].  This would later translate into a senior AL position, but he could not explain how, or to what position. [Mr A] himself is a chief of the village.

10. [The applicant] told the Tribunal that, from about 2000, he became aware that his father was involved with JEI.  His father participated in “meetings and programs.”  He was never an election candidate.  He defined “programs” as collecting larger groups of people.  When asked to explain, he said that when there was a meeting or program his father would be invited to it.  He was asked what the purpose was of these meetings or programs.  He said groups of people would gather at them.  He said that he and his brother were also members.  He and his brother held low level positions.  They had no specific role.  He joined at the age of [age].  When asked about JEI’s youth wing, ICS, he had not heard of it.  When the Tribunal provided further detail, he said that it was the same thing as JEI and did not have a separate existence in his area.  He revised this to say that ICS may have been active in high schools, but he was not aware of it when he was at school.  He did not become aware of politics until he graduated from high school.  He told that the Tribunal that many people in his village were politically active in a range of different parties.  He could not say how many supported each party.  [Mr A] came to know of his involvement in JEI from his visible participation in programs.  Also, when AL members invited participation in their activities, they came to understand who supported other parties.

11. [The applicant] said that about 300-400 other members of the village were members of JEI.  The Tribunal took [the applicant] to a certificate produced to the previous Tribunal by a [Mr C][1] which describes [the applicant]’s father as a “regular worker” with JEI.  He said that [Mr C] had been a [position] at union level. The Tribunal noted that the certificate itself is not dated and does not make any reference to the time during which [the applicant]’s father was involved with the party. He confirmed that there was no certificate in relationship to himself:  his low-level position and relative brevity of membership meant that he was not entitled to a certificate.  He said he had been a member of the party but had not asked for a certificate and it was up to the party as to whether or not he should get a certificate.  He said he could not obtain a certificate from Australia.  He was not aware of how to establish that he had been a party member, or that he needed to do so.  It was put to him that the delegate and previous Tribunal had not been satisfied as to his claims of JEI involvement.

    [1] File [case number deleted], folio 93

12. The Tribunal asked about attacks on his family that had occurred after [the applicant] had left Bangladesh. He said there had been an attack on his family home that had caused a lot of damage. He said he had submitted copies of newspaper articles and other documents to the previous Tribunal. He said that the stories show that people had demanded money from his family home and had bombed it when the money was not forthcoming. The Tribunal said that it was difficult to form a link between this story and [the applicant]’s claims.  It is about alleged extortion by members of the Revolutionary Communist Party.  He said the people named as suspects are associates or operatives of [Mr A].  He said that one of the demands made in relation to another attack on the family home was for his return to Bangladesh.  He agreed that there was no evidence of this but that he had heard it from a family member that ‘they’ want him back in the village, along with demands for donations.  He said these people wanted perhaps to beat or kill him in relation to the land title claim.  He confirmed, in response to questions, that the land title dispute was ongoing.  He said the land was in the possession of [Mr A], but he was still seeking to have the title amended.  He said that he was desperate to have [the applicant] back in Bangladesh because, legally, he would need [the applicant] and all of his siblings together in one place to effect the amendment. He denied that he had invented this detail.

    Assessment of claims and evidence, and findings:

13. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

14. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

15. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been

    obtained and checked and when the examiner is satisfied as to the applicant's general

    credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.

16. The Tribunal has carefully considered all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

17. The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

    In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[2]

    [2] Guidelines on the Assessment of Credibility (July 2015) Available at

18. However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[3]

    [3] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

    Land disputes and politically motivated violence

19. The Tribunal considered country information it had obtained from DFAT’s latest country information report on Bangladesh relevant to the applicant’s claims:

    2.3 Bangladesh has experienced significant political, social and economic turmoil since independence…Bangladesh briefly returned to military rule in 2007 following violent pre -election protests, but the military returned power to the AL after its election victory in 2008. The AL remains in power, having comprehensively won the last two national elections in 2014 and 2018.

    Political Opinion (Actual or Imputed)

    3.65 DFAT has not seen evidence of forced recruitment to political parties, and considers it unlikely to occur. Parties hold membership campaigns each year, through which parties recruit large numbers of members. According to a 2018 survey by the Asia Foundation, around 80 per cent of Bangladeshis have a limited interest in politics, and those that do are not necessarily members of any party.

    3.70 DFAT assesses that, under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges, and travel bans. Active members of opposition political parties and auxiliary organisations (see relevant sections) who participate in

    Jamaat-e-Islami (JI)

    3.85 Authorities have particularly targeted for arrest the JI’s senior leadership, few of whom remain free and active. Other targets have included prominent leaders, ICS members and, in some cases, family members. Lower-level JI members have reportedly been able to avoid the attention of authorities either through the paying of bribes to AL leaders or by physically relocating. DFAT assesses as credible reports that the situation is better for JI members in villages than in cities.

    3.87 People who are perceived as being supporters of JI have reported being followed or intimidated, including when abroad. Some government critics with no affiliation with JI have reported that they have been accused of having such links as a means of attacking their credibility.

    3.88 DFAT assesses that senior JI leaders face a high risk of arrest and legal sanction. Active JI members and ICS members who continue to engage in political activities and demonstrations also face a high risk of arrest. Ordinary JI and ICS members who do not engage in political activities and demonstrations face a low risk of arrest, although this may vary according to location. As with other members of opposition parties, JI members may experience fewer employment and business opportunities due to the underground nature of their personal and professional networks and relative lack of influential connections.

    Politically Motivated Violence (PMV)

    3.92 Bangladesh is historically prone to high levels of politically motivated violence (PMV). Today, PMV manifests in the form of violent clashes between supporters of different factions of the same party (intraparty violence), supporters of rival parties (inter-party violence), between party supporters and law enforcement agencies, and between issues-based, politically motivated protester groups and law enforcement agencies and/or party auxiliary organisations. Fatalities and serious injuries often result from these clashes. PMV tends to peak during periods of heightened political unrest, including during elections, strikes and blockades.

    3.93 The number of casualties resulting from PMV varies from year-to-year. In 2018, Odhikar reported that 120 people were killed and 7,051 injured in PMV-related incidents, compared with 77 deaths and 4,635 injuries in 2017 and 215 deaths and 9,053 injuries in 2016. The January 2014 national elections were the most violent in Bangladesh’s history, with months of PMV leaving hundreds dead and thousands injured across the country. As was the case in 2015, 2016, and 2018, local government and council elections in March 2019 continued to be marred by high levels of PMV. The period leading up to the December 2018 national elections was also marked with some violence, primarily of an inter-party nature, but PMV-related deaths and casualties were significantly down and the aftermath was relatively peaceful compared with the national elections held five years earlier.

    3.94 Intra-party violence has become far more common than inter-party violence, particularly between AL factions and individuals. In 2018, Odhikar documented 281 cases of AL intra-party violence resulting in 53 fatalities and 3,225 injuries, but only 14 cases of BNP intra-party violence resulting in three deaths and 115 injuries. These figures were roughly equivalent to those of preceding years. DFAT understands that the high frequency and intense nature of AL intra-party violence can be attributed to the party’s control over state institutions in recent times. This domination has led to competition between rival AL factions and individuals for pre-selection as electoral candidates, and therefore access to, and influence on, processes and outcomes of lucrative contracts, tenders and appointments to senior party positions.

1. Bangladesh’s criminal laws treat extortion which can involve land grabbing as a criminal offence.[4] Land grabbed as part of extortion is, therefore, against the law. Members of major political parties and their auxiliary organisations have been accused of land grabbing.[5]

   [4] Criminal Code 1860 (Act No. XLV of 1860) (Bangladesh) s.383.

   [5] ‘Land grabbing is councillor Hasu’s obsession’, The Business Standard (Bangladesh), 18 October 2019, 20200917112828; ‘She drew ire from land grabbers’, The Daily Star (Bangladesh), 7 September 2020; ‘Ex MP’s family brings land grabbing, extortion allegation against BNP leader’, Bangladesh Post, 7 September 2020; ‘7 BNP men sent to jail for land grabbing’, The Daily Star (Bangladesh), 20 March 2008; ‘BCL top leadership tainted for ‘tender business, extortion’, Prothom Alo Newspaper (Bangladesh), 15 September 2019; ‘3 more ruling party leaders arrested in money laundering case’, New Age (Bangladesh), 5 August 2020.

2. A January 2018 media article published by The Financial Express (Bangladesh) notes the prevalence of land grabbing in Bangladesh:

   At the present juncture, many local and foreign, public and private forces are engaged in land grabbing. The official grabbers include various government departments and agencies, the security forces, organisations engaged in development projects, etc. On the other hand, private or non-state entities involved in it include local and foreign companies, private organisations, business NGOs, so called 'development' institutions, the elites and powerful people belonging to different classes, religious and ethnic communities.

   The process of land grabbing is now all-pervasive in Bangladesh. Apart from the powerful organisations at all levels of society, powerful neighbours in villages and towns routinely grab the lands of poorer classes, ethnic and religious minorities.[6]

   [6] ‘The political economy of land grabbing in Bangladesh’, The Financial Express (Bangladesh), 27 January 2018.

3. [The applicant]’s evidence to the Tribunal in relation to the land dispute was generally unsatisfactory and internally inconsistent. His description of the dispute and the circumstances in which it arose (see paragraphs 56 to 59 above) were inconsistent not only with the accounts he had given to the delegate and the previous Tribunal, but within the narrative he gave at the hearing. For example, it was at no time completely clear whether and in what forum his family’s interest in the land was either (as variously claimed) vindicated or compromised. The motivation for the claimed attacks on him and, at other times, on the family home, so far as they were said to relate to the land dispute, were the subject of inconsistent explanations. Further, while it is acknowledged that country information indicates that land disputes and land grabbing may be features of general criminality or politically motivated violence in Bangladesh, the evidence presented by [the applicant] did not support a conclusion that this had occurred in his case.

4. Given the assistance that [the applicant] claims he was given by his brother in Bangladesh, both in relation to the medical report and the newspaper articles and police reports from 2015, it is surprising that no evidence whatsoever could be provided in relation to the land title and any associated litigation, nor any support for his claims of violence directed at the family or its property associated with the land dispute.

5. Further, the Tribunal does not accept [the applicant]’s claim that interests associated with [Mr A] seek his return to Bangladesh in order to finalise the claimed land grab. I am satisfied that his claims that his physical presence was required in Bangladesh in order to finalise the transfer of any interest in the disputed land was invented in the course of the hearing.

6. Having regard to all of the evidence before the Tribunal, I cannot be satisfied that any land dispute arose in the way claimed by the applicant, or at all.

7. [The applicant]’s evidence as to his membership of or imputed sympathy with JEI was unimpressive.  In his evidence to the Tribunal, he did not raise the political dimension of his claims in connection to the land dispute, his alleged assault, or the claimed attacks on the family home, until expressly asked.  The only documentary evidence of a connection with the party is an undated certificate referring to his father as “a regular worker”.  I consider it to be of dubious authenticity. It makes no reference to any length of service, or of offices held, or any other measure of his contribution.  [the applicant] made no mention of the aims or policies of the party.  His evidence as to its activities was so vague as to offer no insight as to what the local party organisation sought to achieve or what, if any, contribution was made by its leadership or members.  The role played by him and his brother was even more vaguely expressed than that of his father, whose activities were described as being invited to “meetings and programs.”  Direct questions to him failed to elicit any more detailed responses.

8. In relation to any evidence of his own party affiliation, [the applicant] admitted than none existed.  He said that he did not think his own activities qualified him for a certificate.  In view of the time that has passed since he first applied for the visa, I consider that if any evidence existed that he was a member of the party, or even recognised as a supporter, it would have emerged by now.  In view of all of the evidence, I cannot be satisfied that [the applicant] was an active member of JEI, nor that he was at any time imputed with membership of, or sympathy with the party.

9. I have considered [the applicant]’s claims to have been a victim of politically motivated violence.  Putting to one side my finding in relating to his actual or imputed political opinion, I cannot be satisfied that the incident of [date] November 2011 occurred in any way consistent with [the applicant]’s claims.  I consider that the medical report (which itself is of doubtful provenance as to the date and the purpose for which it was created) cannot be reconciled with [the applicant]’s claims to have been beaten unconscious and hospitalised for 20 days.  Taken at its height, it relates that he presented to the hospital with superficial cuts and bruises and was discharged the same day.  It relates his claim to have been the victim of an assault, to which I give only limited weight.  I consider his oral evidence on this matter (see paragraphs 60 to 64 above) to be exaggerated to the extent that I am unwilling to give any weight to his claims in this respect that cannot be independently corroborated.  The most I am prepared to accept is that he attended the hospital on [date] November 2011 having claimed to have been the victim of an assault.

10. His additional claims of the threats and attacks on the family home are not supported by any independent evidence, despite the demonstrated willingness of his brother to make police and media reports in relation to other incidents.  [the applicant]’s own evidence on this has been inconsistent (see paragraphs 65, 66 and 70 above).  I do not accept that [the applicant]’s evidence in relation to this matter is credible. In all the circumstances, I do not accept that [the applicant] has been the victim of politically motivated violence as claimed or at all.

    [Mr A]

11. The relevant claims [the applicant] makes in respect of [Mr A] are that he holds substantial local power by reason of his membership of and position in the AL and his family connections.  He claims [Mr A] used that power to occupy his family’s land and to mobilise his associates to carry out violence against [the applicant] and his family.

12. I consider it relevant that, on [the applicant]’s evidence, [Mr A] has been unable, despite the power he is claimed to exercise, to complete the claimed land grab.  Given the prevalence of land-grabbing described in the country information, this does not indicate the degree of power [the applicant] describes.  As noted above, I am not satisfied that [the applicant] and his family were the subject of concerted attacks on their home by AL members or by associates of [Mr A] seeking to complete the land grab.  [the applicant]’s evidence as to [Mr A]’s involvement in the incident of [date] November 2011 has been inconsistent.  His earlier statements are to the effect that he saw [Mr A] in the group that attacked him.  His evidence to the Tribunal was that it was a larger group which included [Mr A]’ brothers and that [Mr A] only joined it after [the applicant] had been rendered unconscious.  For the reasons given above, I do not accept [the applicant]’s evidence on these events.

    Individuals who have witnessed corruption and held information adverse to the interests of the AL in Bangladesh

13. Aside from inferences the Tribunal might be asked to make about corruption connected to the land dispute, [the applicant] made no material claims about having witnessed corruption or holding information adverse to the interests of the AL in Bangladesh.  For the reasons given above (at paragraphs 80 to 83 and 89), there is insufficient evidence before the Tribunal to allow it to be satisfied that [the applicant] has witnessed corruption or holds information adverse to the interests of the AL.

    State protection

14. The Tribunal considered country information it had obtained from DFAT’s latest country information report on Bangladesh concerning state protection relevant to the applicant’s claims:

    Corruption

    Bangladesh is a State Party to the UN Convention Against Corruption (CAC). The Code of Criminal Procedure, the Prevention of Corruption Act (1947), several articles of the Penal Code, and the Money Laundering Prevention Act (2012) all provide a legislative framework for fighting corruption. The Anti- Corruption Commission, established under the Anti-Corruption Commission Act (2004), is responsible for investigating allegations of corruption and filing cases, as well as promoting mass awareness of corruption.

    Despite these constitutional protections, all major ranking institutions routinely rate Bangladesh as a highly corrupt country – Transparency International, for example, ranked Bangladesh 149th out of 180 countries in its 2018 Corruption Perceptions Index (in which 180 is the most corrupt). Corruption is pervasive at all levels of society, and is endemic in the judicial system, police, and public services (see relevant sections). Low salaries for employees in these sectors frequently lead to these employees demanding facilitation payments to supplement their income. Anti-corruption legislation is inadequately enforced, and prosecutions for corruption are rare.

    State Protection

    5.1 Political interference and corruption operate to constrain the rule of law in Bangladesh. While some state institutions continue to work to enforce the fundamental rights of citizens, insufficient funding and a lack of political support hamper their efforts. Other organs of state protection, including the military, police, and lower courts, can be heavily politicised, under-resourced, and subject to corruption. DFAT assesses that victims of abuse have limited avenues for effective recourse in cases where the perpetrator belongs to a state agency.

    Police

    5.5 Professionalism varies across the police. The national system of policing can be effective, and the force has often demonstrated an ability to track down suspects across the country. Political and bureaucratic interference is a significant impediment to police efficiency, however. Both AL and BNP governments have used the police to undermine opposition forces, and many politicians have used the police to advance their personal interests. Police systems are heavily bureaucratic. While senior officers are relatively well trained and well paid, and occupy important positions within the bureaucracy, those in lower ranks are often poorly paid, trained and equipped. Low salaries encourage some police to supplement their income through demanding bribes from members of the public (see also Corruption and Prevalence of Fraud). The US State Department has consistently reported that public distrust of police and security services deters many Bangladeshis from approaching government forces to seek assistance or to report criminal incidents.

    5.6 Human rights organisations have expressed concern over persistent use of excessive force by police, and by the general culture of impunity surrounding police behaviour. Investigations into police misconduct are internal, and generally lack either transparency or credibility. DFAT assesses that most Bangladeshis, and particularly those with connections to opposition parties, would seek to avoid engagement with the police.

15. The Tribunal considered country information it had obtained from the United Kingdom Home Office’s latest country policy and information note on political parties and affiliation in Bangladesh, published in September 2020:

    2.5.3 Law enforcement agencies are aligned with the ruling party. Political affiliation may be a motive for the arrest and prosecution of people on criminal charges. The police and the criminal justice system are functioning, but their effectiveness is undermined by poor infrastructure and endemic corruption, which severely compromises the state authorities ability to provide effective protection, particularly for active members of opposition political parties.

16. [The applicant] has not satisfied the Tribunal that he has a well-founded fear of persecution or that he will suffer serious harm by reason of the facts and matters asserted in his claims.  Accordingly, I consider that his need for state protection in respect of them does not arise.  However, for the avoidance of doubt, I have taken note of the matters raised with the media and police by his brother in relation to the claimed extortion attempt by members of the Revolutionary Communist Party, which indicate that the complaint was taken seriously and was placed under investigation.  Accordingly, I am not satisfied that members of [the applicant]’s family are unwilling to avail themselves of state protection.

17. In summary, therefore:

    ·I accept, with reservations, that [the applicant]’s father had been a low-level supporter of JEI;

    ·I accept that, at some time prior to August 2011, [the applicant]’s father and [Mr A] were parties to a dispute over the ownership of land;

    ·I do not accept that [the applicant] was an active or identifiable member of JEI;

    ·I do not accept that the land dispute was connected to the political affiliation of [the applicant], his father or [Mr A];

    ·I do not accept that [the applicant] and his family were the victims of mob attacks on their home;

    ·I accept that [the applicant] may have been the victim of an assault on [date] November 2011, suffering superficial injuries, but do not accept that it was a mob attack motivated either by political enmity or the land dispute;

    ·I do not accept that [the applicant] has a well-founded fear of persecution by reason of his imputed political opinion;

    ·I do not accept that [the applicant] has a well-founded fear of persecution or of suffering significant harm at the hands of [Mr A] or persons associated with him;

    ·I do not accept that [the applicant] has witnessed corruption or holds information adverse to the interest of the AL in Bangladesh and therefore does not have a well-founded fear of persecution or a real risk of suffering significant harm for those reasons; and

    ·I do not accept that [the applicant] is unable or unwilling to avail himself of state protection should he return to Bangladesh.

    Cumulative claims

18. Having considered all of [the applicant]’s claims, individually and cumulatively, and all of the evidence, as well as having considered his personal circumstances, the Tribunal finds that there is no real chance that he will suffer persecution as a consequence of his imputed political opinion, or for any other reason, if he returned to Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal finds that [the applicant] does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Bangladesh. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?

19. The Tribunal has considered [the applicant]’s claims in terms of complementary protection.

20. Having regard to the findings of fact above, I do not accept that [the applicant] left Bangladesh because he feared for his physical safety.

21. In view of these findings, I am not satisfied that there is a real risk that [the applicant] will suffer significant harm for any of the reasons claimed if he returned to Bangladesh now or in the reasonably foreseeable future.

22. Having considered all of [the applicant]’s claims, individually and cumulatively, and all of the evidence, as well as having considered his personal circumstances, I am not satisfied that he will be arbitrarily deprived of his life, the death penalty we carried out on him, he will be subjected to cruel or in human treatment or punishment, or he will be subjected to degrading treatment or punishment if he returns to Bangladesh now or in the reasonably foreseeable future.

    Conclusion: Refugee Criterion

100.   Considering all of the circumstances above, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason, including race, religion, nationality, political opinion or membership of a particular social group. His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.

Conclusion: Complementary Protection

101.   Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh that there is a real risk that he will suffer significant harm.

Overall Conclusion:

102.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

103.   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).

104.   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

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

James Lambie
Senior Member