1915901 (Refugee)

[2022] AATA 699

1915901 (Refugee) [2022] AATA 699 (3 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1915901

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Tania Flood

DATE:3 February 2022

PLACE OF DECISION:  Sydney

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

Statement made on 03 February 2022 at 4:20pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – Federal Circuit Court remittal – political opinion – father’s membership and activity in political party – harassment, extortion, detention and torture of father and applicant by members of opposing parties and groups – religion – Muslim with Hindu friends and attendance at events – beating and ransom demand – returnee from Western country perceived as wealthy – credibility – inconsistent claims and evidence – father now deceased – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), (aa), 45AA, 65
Migration Regulations 1994 (Cth), r 2.08F, 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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. The applicant who claims to be a citizen of Bangladesh, applied for the visa on 5 July 2013 and the delegate refused to grant the visa on 6 August 2015.

3. The applicant applied for a Protection (Class XA) visa. However, by operation of s 45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth) (the Regulations), from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.

4. The applicant applied to the Tribunal for a review of the delegates decision dated 6 August 2015 and on 7 August 2018 a differently constituted Tribunal affirmed the decision not to grant the applicant a Protection visa.

5. The applicant sought judicial review of the Tribunal’s decision and on 14 June 2019 the Federal Circuit Court remitted by consent the Tribunal’s decision.

6. The applicant was invited to appear before the Tribunal during the Covid-19 pandemic and the Tribunal exercised its discretion to hold the hearing by video conference.  The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant.  The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The applicant agreed to appear before the Tribunal by video on 21 January 2022.  The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.  There was no indication that the applicant had any difficulty in understanding and responding to the questions being put to him during the telephone hearing.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. The applicant was represented in relation to the review.

8. The issue in this case is whether the applicant has a well-founded fear of persecution in Bangladesh for one or more of the five reasons set out in the Refugees Convention (s36(2)(a)); and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh there is a real risk that he will suffer significant harm (s36(2)(aa)).

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to 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.

11.  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).

12.  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.

1. 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’).

14.  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

15.  The applicant arrived in Australia by boat in December 2012. 

16.  In his application for a Protection visa the applicant indicates he is a single male from Jhenaidah District, Khulna Division, Bangladesh.  He states that his parents and siblings all reside in Bangladesh.  He provided two residential addresses in Bangladesh, one from birth to 2007, and another from 2007 to 2012 indicating he relocated to avoid paying taxes to local extortion groups.  He indicates he completed primary and secondary school.  He indicates he was a trainee recruit in the Bangladesh [Armed forces] for one and a half months and following that until 2012 he was self employed in the retail trade.  He departed Bangladesh in November 2012. 

17.  In a Statutory Declaration dated 1 July 2013, the applicant provided the following information in relation to his protection claims:

18.  His father was wealthy, owning farmlands and businesses from before the applicant’s birth.  Because of his involvement in business the applicant’s father was active in promoting the rights of small business owners and did so through political involvement as a member of the Bangladesh National Party (BNP).

19.  Whenever the BNP was in power, the applicant’s father was able to secure a seat as a member of the union council for the local area.  In this capacity he made decisions which impacted development of local resources, roads, infrastructure and education (among other things) using government funds.

20.  When the BNP was not in power, his father would be harassed, harmed or detained for several days as punishment for not favouring the Awami League (AL) members when in power.  The applicant claims that as a matter of fact his father did not favour any individual based on party, and he made enemies because he did not provide favours.

21.  The applicant claims on many occasions while he was growing up (approximately three or four times) he was arrested by the police, held at the police station and beaten and harassed until his father and his associates arranged for payment of bribes.  He believes he was harassed because of his father’s wealth and membership of the BNP.  His father was also regularly extorted by the local police, but largely avoided harm during periods when the BNP was in power.

22.  The applicant claims he started working and managing his family’s shop from around 1998 and from this time he was exposed to extortion.  His father told him as shop manager it was his duty to handle these issues.  The ‘Haque group’ would come to him approximately once a month – first at the shop, and if he was not there, at his home – demanding money and he had no choice but to comply for fear of harm to him or his shop.

23.  In or around 2007, he stayed at the house of his Hindu friend on a night when the Haque group came to his family home.  His father told the Haque group that he was not at home and they told him that the applicant would have to approach them to pay the money.  When the applicant went to pay the money later, the Haque group were prepared to accept less.  In this way, by staying away from home at his friend’s home, the applicant managed to save on extortion payments.

24.  In December 2008, the AL swept to power in Bangladesh.  His father was detained by the police, beaten and held for several days before his BNP colleagues arranged for payment of a bribe for his release.

25.  From 2008-2012 the applicant continued operating his family business, paying extortion amounts to the Haque group and his father avoided further harassment from the police by routinely paying them bribes.

26.  Although he is a devout Muslim, the applicant grew up with several Hindu friends and on many occasions was invited to special Hindu events such as pujas.  Previously, as Bangladesh was secular, attending pujas was not problematic, but gradually religious tensions began escalating.

27.  In August 2012 the applicant attended a local puja upon invitation from some Hindu friends.  They spent the day watching the religious ceremonies and sharing in the festivities.  In the evening time musicians came to continue the party, and shortly thereafter some men from the local mosque came and told revellers that the puja was inappropriate, too loud and should not be undertaken in the local Muslim village.  The applicant indicated to the other Hindu revellers to stop the puja at this time as it was nearing the evening prayer of Maghreb.  He suggested they attend the local mosque, finish prayers and then later at night they could recommence the festivities.  The other revellers agreed to this.  After prayers at the mosque, he went home.

28.  A few hours later, after the last prayer of the night, he was called by his Hindu friends and asked if he could go on stage and talk about tolerance and harmony between Muslims and Hindus.  He agreed to do this and got up on stage and greeted the crowd with Islamic and Hindu greetings and spoke about tolerance and acceptance.  The crowd cheered and after his speech celebrations continued until 4am with music, dancing and food.

29.  About two days later he spent the night at his family home.  At about 2am the applicant answered a knock at the door to several masked men.  He believed they were from the Haque group seeking extortion money.  He followed them into a secluded bush area and then asked what was happening.  They beat him on the head and slashed his body with a knife.  They continued to beat and hit him on the floor and tied his hands together.  One of the men crushed his fingernails with pliers and another threatened to shoot him.  The applicant begged the men to spare his life and asked them why they were doing this.  They said that they were from the youth group of the Purba Banglar party and they were punishing him for speaking for the interests of Hindus as a Muslim and for becoming an infidel.  The applicant said he has done nothing against Muslims and was simply preaching tolerance and begged them not to hurt him but they continued to beat him.  He promised to pay them money if they released him.  They demanded a sum of money and told him to leave the area after payment.  After this he was left there and fell asleep or lost consciousness, he cannot recall. The next day he was taken to a local hospital by a villager and remained at the hospital for one month.  He attaches a letter from a doctor.

30.  He was released from the hospital in September 2013.  He told his father what happened and the threat from the Purba Banglar party.  They received a phone call from men who identified themselves as his attackers demanding the money he had promised.  His father indicated that he did not have the money to pay them and suggested he pay a lower amount and the remaining in instalments.  The men agreed to this amount and indicated that the applicant should leave the area immediately as they had promised their bosses he would be killed.  The applicant immediately began hiding in his family home.

31.  The applicants father knew the applicant would be unsafe throughout Bangladesh.  The only way to pay the Purba Banglar party was to sell the family business.  However, his father knew that once he sold the business he would no longer have financial power to protect them from the AL.  The applicant’s father sold the family business and contacted a people smuggler to arrange for the applicant’s escape from Bangladesh.

32.  The applicant travelled to Cox’s Bazaar in November 2012 and boarded a smugglers boat to leave Bangladesh.  He arrived in Australia in December 2012 after transiting through other countries.

33.  Shortly after the applicant departed Bangladesh, members of the Purba Banglar party arrived at his family home and asked his father for the remaining amount of money.  Initially his father tried to stall them to avoid paying them back.  When they discovered he had fled the country they demanded immediate payment.  When he told them he had sold the business to pay for the applicant’s journey, they became angry and threatened to confiscate his land until the applicant sent back enough money to pay the debt.

34.  In or around February 2013, the applicant’s father was arrested by local police and detained for two nights for being a religious extremist.  The applicant believes his father was being harassed because he was unable to pay regular bribes since selling the business.  His father was released after a close friend in the council union paid a bribe, but the friend said he couldn’t continue to do this.  The applicant’s father relocated some of his siblings to Dhaka and they are now in hiding, unable to work.  He believed because he is elderly and his daughters are women, they would not be harmed.

35.  To this day members of the Purba Banglar continue visiting the applicant’s father’s home, demanding that the applicant work in Australia to pay back the debt.  The local authorities under the influence of the AL have also continued harassing his father, warning him if he does not restore his finances and pay them bribes as he used to, they will lodge fraudulent criminal charges against him, the applicant and his siblings.  The applicant is afraid that if they lodge these cases it does not matter where he or his brothers relocate to in Bangladesh.

36.  The applicant claims he and his brothers are being threatened because of their relationship with their father (and the BNP).  He fears being detained, tortured, abused and/or killed.  He fears harm by the Purba Banglar party, the AL, extortion groups and corrupt government institutions (including but not limited to the police).

37.  He fears harm and mistreatment on the basis of his real or imputed political opinion and also religion, due to his belief in religious tolerance and acceptance.  He fears harm from groups who do not believe in secularism.  He also fears harm on the basis of his membership of a particular social group as a person who has held information adverse to the interests of the AL in Bangladesh, as he has information about police corruption and extortion.

38.  The applicant was interviewed by an officer of the Department and details of information provided at the interview are included in the delegate’s decision which was provided previously to the Tribunal.  The applicant provided the following information and made further claims at the interview.  He claimed that his father passed away by natural causes in September 2014.  He claimed that he was involved in political activities himself as a member of the student wing of the BNP from 1998 until his departure from Bangladesh.  He stated that he does not know who the people who attacked him in August 2012 were and this is why he is afraid to return to Bangladesh.

39.  The applicant participated in an Entry Interview in December 2012.  Notes of the interview record which are included in the Departments file record that he stated he left his country for economic reasons as he could not make a living from the shop he was running.  In response to all questions about his political involvement, membership of social or religious groups, contact with police and local group activity he responded in the negative.

40.  The delegate’s reasons also refer to a further interview the applicant had on 11 April 2013 while in immigration detention with a case manager.  The delegates decision record states that the applicant said his father was imprisoned for 8 years and was then involved in politics; that the police arrested family members several times; that terrorist groups came at night demanding money from them including Purba Banglar Communist Party, Shorbohara Party, Haque group.  The applicant also stated that he was kidnapped and beaten and demanded to pay an amount of which he only paid 100,000 takas.  He said his father sold his shop and he could not stay in Bangladesh.

41.  The applicant attended a hearing with a differently constituted Tribunal and presented further information and arguments in support of his case.  The Tribunal’s decision record indicates significant inconsistencies between the applicant’s written and oral evidence to the Department and the Tribunal in respect of significant events and claims.  Notably the Tribunal’s decision record indicates that the applicant stated (among other things) that after leaving school his father sent him to stay with his sister’s husband and family because of problems he was having.  The applicant stated he did not work until 2006 when occasionally he helped out in his father’s shop.  The applicant did not claim to have been physically attacked by the Purba Banglar Party following the Hindu puja event or subsequently hospitalised for one month; he merely said that his father was approached by the Purba Banglar Party who demanded money from him.  The Tribunal rejected the applicants claims that he was subject to extortion demands in the context of working at his father’s shop or that he spoke out in favour of religious tolerance at a Hindu puja or that he was physically attacked, kidnapped, or had demands made of him or his father for money by Purba Banglar or another extremist group.  The Tribunal also rejected the applicant’s claim to have been involved with the BNP himself or affiliated with or associated with the BNP as a result of his father or family connections.  The Tribunal also rejected the applicant’s claims that his brothers have been threatened or falsely implicated in cases by political opponents because of BNP affiliation or that his mother has been subject to extortion demands by anyone for any reason.

42.  Following the application for judicial review the matter was remitted to the Tribunal for reconsideration on the basis that the Minister conceded that the decision of the former Tribunal is affected by jurisdictional error in that the Secretary failed to give to the Registrar a document in their possession and control that was relevant to the review of the decision. On 15 July 2019 the Tribunal wrote to the Department asking for identification of the document that was missing from the Department’s file when it was provided to the Tribunal.  On 26 July 2019 the Department provided the Tribunal with a document dated 11 April 2016 noting that the date is believed to be a mistake as the actual date is 11 April 2013.  The attached document is headed “Additional claims received from [Reference] – [Applicant’s surname] ([Date of birth],M) and includes the following information:

a.The applicant claims his father was a great politician before the Independence of the country.  He was imprisoned for 8 years.  Since then he has been in politics and part of the Bangladesh Political Party (BNP).  Due to this, he (the applicant) was arrested several times.  He was tortured on his fingers by pliers.  His nails were destroyed, he was hit on the leg and beaten a lot and on the bottom part of the foot.   The police arrested his family members several times.  There is a terrorist group in the locality that came at night and forced them to give them money.  They collected money for six months of the year.

b.The terrorist groups were Purba Banglar Communist Party, Shorbohara Party and Haque Group.

c.He was kidnapped and was asked to pay a ransom of $500,000 Bangladeshi Taka.  He only paid $100,000.  He was beaten and had scars on his [Body parts]. 

d.His father told him that his property would be sold.  Shops would also be sold and he could not stay in Bangladesh.  He stated he did a contract with a smuggler and paid 1.5 million taka to take him to Australia.  He stated the smuggler promised that if one member of the family arrives in Australia and becomes a citizen, the rest of his family can come over to Australia too.  He identified the smuggler as [Mr A] and said he paid him in cash in portions.  After he left Bangladesh, his smuggler was killed by his kidnapper.  The kidnapper came to his home and asked for the remaining ransom money which was owed.  The kidnapper knew about the smuggler and after he returned he was killed on 17 December 2012.

e.He cannot return to Bangladesh because terrorists are looking for his brothers.  His father was arrested twice and his family are being harassed by terrorists.  He may get arrested at the airport if he goes home and he may get killed. 

f.He did not provide these details at the time of his Entry Interview because he wasn’t asked such questions.

43.  As can be seen from the above background information the above claims were indeed acknowledged and considered by the formerly constituted Tribunal despite the omission of the document from the file.  The additional claims were similarly canvassed with the applicant during the hearing, a summary of which appears below.

Tribunal hearing

44.  The applicant appeared before the Tribunal on 21 January 2021.  The Tribunal discussed with the applicant the reasons why his matter was remitted for reconsideration, his background in Bangladesh, and his reasons for fearing a return to Bangladesh.  The applicant’s testimony is summarised as follows:

45.  He was born in Jhenaidah District, Khulna Division, Bangladesh.  His family home in located there and only his mother lives there at present. 

46.  Before he departed Bangladesh he moved between his village and relative’s homes in Jeshore and Dhaka for a few months.  In his village he stayed with a friend, in Jeshore and Dhaka he stayed with his sisters.

47.  The applicant’s father is deceased.  His mother lives in the village.  He has three brothers residing in Bangladesh.  One brother has lived in Dhaka for 10-12 years.  He works in a [Product 1] shop.  Another brother has lived in Jeshore for about 15-20 years and runs his own business.  His third brother moved back to the village 7-10 years ago and runs a shop in the marketplace without any issues.  His four sisters are living with their in-laws.

48.  His father previously owned land and property and he also owned a [Product 2] shop and a [Product 1] shop in the village.  Those businesses are no longer operational.  The family retains some land which they lease to third parties.  He does not know how much income his mother is earning from the land but he knows that the people who lease the land sometimes raise excuses for not paying the rent.  He said that while his father was alive the family had a good income but now some of the land is controlled by others and his brothers are not there to manage it.

49.  He completed year 10.  He joined the [Armed forces] but did not complete the training. He returned to his village and joined his father working in the shop.  He estimates this was in around 1999. 

50.  In respect of issues relating to the running of his father’s business the applicant stated that his father was in jail from [Year 1] to [Year 2] and he was born in [Year 3].  He said that from about 1995 he started to observe his father having problems with the police.  He said his father was often taken away by the police because of his involvement with the BNP. He said the police and other groups/influential people demanded money from his father.   He said because of this his father was not always present at the shop and he had to take over.  However, he said he was young and his father told him it was too much for him and that he should go overseas.  For this reason, he said his father sold the shop and commenced talking to an agent to transport him to Australia.

51.  He said he commenced working in the shop sometime after 2000.  He said four other people worked in the shop and to begin with he was very young.  He said that he took more responsibility for the shop for a few years sometime after 2000.  When asked if he was the person in charge he replied “sometimes” but said the shop was usually run by other staff.  He said the main problems they faced were because of his father’s support for the opposition party.  He referred again to the police coming to the shop to ask for money and sometimes arresting his father.

52.  The Tribunal put it to the applicant that information outlined in the former Tribunal’s decision indicates an inconsistent account of the claimed events surrounding his involvement in the running of his father’s business which also differs from the above account.  Specifically, the Tribunal noted the following:

-    that the reasons given for departing Bangladesh at the time of his Entry Interview were purely economic. 

-    that in his written statement of claims he said that he was running his father’s shop from 1998 and was personally subjected to extortion demands by the Haque Group. 

-    that his oral evidence to the former Tribunal is that he did not work until 2006 and even then he only occasionally helped out in the shop and was not the manager of the shop.

-    that his oral evidence in the current proceedings indicates that it was the police who demanded money from his father whereas his former evidence is that it was principally the Haque Group that was extorting money from them.

53.  The applicant repeated his evidence that the police harassed his father because of his political support for the opposition.  He said that in previous proceedings a Rohingya interpreter was used and interpreted some things differently.  He said he previously explained that his father’s business ceased operating and he therefore came to Australia.  He said he didn’t say that he came to Australia to earn money. 

54.  When asked if he was personally involved in the payment of the extortion monies he said that he never personally gave any money to people.  He said his father always handled that.  He said that different people demanded money from them but that his father would sometimes hide and/or negotiate the price with them.  He added that sometimes the police took him (the applicant) to the station as well but they only asked him questions and he doesn’t know what transpired in terms of payments to the police for his release.

55.  The Tribunal referred the applicant to information outlined in his written statement of claims which indicates that he was personally involved in paying the extortionists.  He responded that he was very young at the time and his father never put pressure on him and he was never involved in those problems.  He repeated that it was his father who paid the extortion demands.   He said that the information in the statement of claims might have been mistakenly written.

56.  In respect of the issues relating to his claimed attendance at a Hindu puja event in Bangladesh the applicant stated that the celebration was going on at the time of the Muslim prayer and some Muslim people came to ask them to stop.  He said that he told those people that Hindu people should be given the opportunity to conduct their celebrations and after that some Muslim people went against him. 

57.  The applicant was asked to describe what happened to him after that event.  He said that some people caught him and took him away and demanded that his father pay them money.  He said his father told him it was people from the Purba Banglar Party but he didn’t see their faces as they were wearing masks.  He said he was tortured and made many references to having his fingernails pressed with pliers.  He said that afterwards he was taken to the hospital where he stayed for two days before being discharged.

58.  The Tribunal put it to the applicant that when he appeared before the former Tribunal he made no mention at all of being tortured and he confirmed to the former Tribunal that the only thing that happened was his father was asked to pay money to his captors.  The Tribunal also pointed out that in his earlier claims he stated he was hospitalised for one month and that he provided a medical report to that affect. 

59.  In respect of the claimed time he spent in hospital the applicant said this could have been a mistake.  He said he previously said that when he was released from hospital he stayed one month in hiding.   After a break in the proceedings the applicant stated that he stayed in hospital for two days but remained under hospital treatment for a month as nurses would come to his place of hiding to change his dressings.

60.  As to why he did not claim to have been tortured before the former Tribunal he said that he simply answered the questions asked of him.  The Tribunal stated that the former Tribunal’s decision record indicates there was a lengthy discussion about the claimed abduction in which he only said that his father was asked to pay his captors money.  He insisted that he had raised the matter of physical abuse by referring to his damaged fingers.

61.  Furthermore, the applicant confirmed to the Tribunal that his father told him he paid an amount of 1 lakh to his captors for his release.  He confirmed this money was paid prior to his departure from Bangladesh.  The Tribunal put it to the applicant that in his written statement he states that his father agreed to pay the amount demanded in instalments and that after he left Bangladesh they came to collect the money and his father first tried to stall them.  The applicant responded that on the day he was released his father paid them some of the requested amount.  He said that later on he sold some of their trees and paid the remaining sum.  He said he does not know when the remaining amount was paid because by then he had left the country.  

62.  As to why the Purba Bangla Party will target him if he returns to Bangladesh now he said that those people already received what they demanded.  He said that is not the issue; rather he said some religious people will still go against him because of his involvement in the Hindu event.  He said he is afraid of those religious fundamentalists and this is the reason why his father sent him away.    By way of clarification, he said that local religious people complained about his actions to the terrorist group (Purba Banglar Party) and they then caught him and told him he was creating problems in the local area.  He said they told him he could no longer stay in the area and that his father had to pay them money.   The applicant said that some of the Purba Banglar Party people have now been arrested and/or killed by the government.  He said he is not afraid of them. 

63.  As to his father’s political involvement the applicant said the reason his father was jailed for eight years was because of his political activities.  He clarified that his father was falsely implicated in some murder charges. He said that his father passed away at home [in] September 2014 of natural causes although he said he faced a lot of harassment in his life and this impacted him physically.  When the Tribunal noted that it was previously indicated his father died in prison he denied saying that.  He said that he previously said his father was imprisoned on previous occasions but died at home.

64.  The applicant said that his father was a Union Parishad leader/chairman but that this was a separate role to his BNP position.  He said his father was the union level BNP President. 

65.  Noting his father’s death some eight years ago the Tribunal put it to the applicant that it no longer appears he would be considered influential or a threat to the ruling party.  The Tribunal also noted that the applicant’s evidence is that his brother has been living in the village for many years and running a business without any problems flowing from his father’s former political involvement.  The applicant responded that on his return people will think he is wealthy and the Awami League people will make a lot of problems for him because of that. 

66.  The Tribunal asked the applicant whether any other of his family members are experiencing problems because of his father’s past involvement in the BNP.  He said that his mother and one brother who is running his shop in the village are not involved in politics.  He added that his mother is old and his brother has some physical impairment and this is why they are left alone.  As to his brother in Dhaka he said he is merely a supporter of the BNP.  He said his brother in Jeshore once contested an election but didn’t win because of corruption.  He said this brother does attend political meetings and rallies in the local area.

67.  As to his own involvement with the BNP the applicant stated that he is not a member of the party and has been living overseas and has not been involved in political activities.  He said his only fear is that he will be regarded as a wealthy person and this could result in him being extorted for money or having false cases brought against him.  He said the Awami League will think he has the money to act against him and take part in politics.

68.  Whilst living in Bangladesh the applicant stated that he worked alongside his father in his political activities.  He said he attended political meetings, invited other people to join in and he spread political news and gave some money to the party.  He said that in 2005 he became the secretary of the youth wing.  When questioned further about his role he said he didn’t fulfil any responsibilities and only stayed close to his father.

69.  The Tribunal put it to the applicant that the Delegates decision indicates he said he was personally involved in political activities as a member of the student wing of the BNP from 1998 until his departure from Bangladesh but that he made no mention of this in his detailed written statement and as the former Tribunal’s decision notes when asked about political involvement at his Entry Interview he answered in the negative.   The Tribunal further pointed out that when discussing his political involvement with the former Tribunal you said his chairmanship was in name only and he didn’t do anything and was not involved in political activities.  In any event, the Tribunal indicated that some nominal involvement with the BNP many years ago would not likely attribute him with a political profile which would be of interest to the Awami League now.    The applicant’s response was unrelated to the issues put to him.  He said that in fact he has been struggling to survive in Australia due to the pandemic and has been relying on money sent to him from Bangladesh. 

70.  The applicant was asked if he has any independent information to support his claim that he will be targeted on return to Bangladesh because he will be perceived to be a wealthy returnee from the West.  He responded that he could do so and referred to people returning from Singapore being subjected to such treatment.  He said returnees are demanded to pay money and their parents threatened with kidnap. The Tribunal put it to the applicant that country information indicates there are tens of thousands of Bangladeshis who exit and enter the country each year, the vast majority of whom enter the country without incident and are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. The Tribunal also put it to the applicant that his evidence is that his financial situation is very poor and that it is difficult to see how in the circumstances he would display the attributes of a wealthy person.  He replied that local people will not know that and will still think he is wealthy.  The Tribunal notes the applicant has not provided any submissions to date in respect of the treatment of returnees from overseas to support his claims.

Country Information

71.  In its 2019 Country Information Report on Bangladesh[1], DFAT notes that Bangladesh is historically prone to high levels of politically motivated violence (PMV) which tends to peak during periods of heightened political unrest, including during elections, strikes and blockades.  The number of casualties resulting from PMV varies from year-to-year.  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.  Intra-party violence has become far more common than inter-party violence, particularly between AL factions and individuals. 

[1] DFAT Country Information Report, Bangladesh, 22 August 2019

72.  On the risk of harm on the basis of political opinion, 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 who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists.  This risk is elevated around times of heightened political tension, including elections.  Those who are members of opposition political parties and auxiliary organisations but who do not engage in political activities and demonstrations face a lower risk of arrest, although this may vary according to location and timing.

FINDINGS AND REASONS

Country of reference

73.  On the basis of the identity documents produced to the Department, and in the absence of any information to the contrary, the Tribunal accepts the applicant is a national of Bangladesh.

74.  During the hearing the applicant confirmed to the Tribunal that he is unable to return to Bangladesh for the following reasons:

a.Fear of harm from people who extorted money from him in connection with the running of his father’s business.

b.Fear of harm from Purba Banglar Party members and/or other Muslim fundamentalists because of his involvement in a Hindu festival and for speaking about religious tolerance.

c.Fear of harm from AL members/corrupt government institutions due to his father’s and his own support for the BNP.

d.Fear of being perceived to be a wealthy returnee from a Western country. 

75.  Having carefully considered the applicants claims and all of the available evidence the Tribunal has concerns about the reliability of the applicant’s evidence in respect of key aspects of his claims.  These concerns and the applicant’s responses to them are discussed in further detail below.

Fear of harm from extortionists

76.  The former Tribunal decision indicates that in his Entry Interview which took place after his arrival in Australia the applicant stated that he ran his father’s shop but could not make a living from it.  He did not refer to any of the claimed extortion attempts by the Haque group which were outlined in his written statement provided at the time of his application for a Protection visa.  He essentially claimed to have left Bangladesh for economic reasons.

77.  In his written statement of claims made at the time of his application for a Protection visa the applicant stated that he ran his father’s shop from 1998 however, his evidence to the former Tribunal is that he did not work at all until 2006 and even then he only occasionally helped out in the shop.  He stated that the shop was managed by another person.  The applicant’s oral evidence in the latest proceedings is again different in that he said he commenced working in his father’s shop around 2000.  He stated he was very young at the time and that the shop was run by other staff members.  He made repeated references to the police coming to the shop to harass and demand money from his father because of his father’s support for the BNP.  He stated that many people demanded money from his father including members of the Purba Banglar Party and other influential people.  He made no reference at all to the Haque group which was identified as the main offender in the written statement of claims provided to the Department.

78.  Additionally, the applicant informed the Tribunal during the hearing that while he was aware of the financial demands made on his father he was never pressured by his father to become involved in such matters and in fact, never was.  He confirmed to the Tribunal that he never personally gave money to any of the extortionists as this was always handled by his father.  At odds with this, in his written statement of claims which was provided to the Department it is stated that while acting as the shop manager he was repeatedly exposed to extortion and advised by his father that as shop manager it was his duty to handle these issues.  Further, in stark contrast to his oral evidence to the Tribunal reference is made in that statement to an occasion in 2007 when he personally went to pay money to the Haque group after they came to speak to his father at home and found he was not there at the time.  

79.  The Tribunal discussed these concerns with the applicant during the hearing and has considered his responses, namely that the use of a Rohingya interpreter in earlier proceedings could have led to some misinterpretation and the possibility that certain information may have been mistakenly written down.  However, the Tribunal is not persuaded that this adequately explains the significantly inconsistent aspects of his evidence and claims in respect of his past experiences in connection with the running of his father’s shop.  While the Tribunal is prepared to accept the applicant’s father may have previously operated a shop and that the applicant may have worked on occasion in his father’s shop when he was younger, it does not accept that he was ever responsible for managing the shop or that he was ever subject to extortion demands by any group.  Given the credibility concerns which have arisen from the applicant’s evidence, the Tribunal is also not prepared to accept that his father was subject to extortion demands by the Haque group, the police or any other group for the reasons claimed.

80.  During the hearing the applicant advised that his father’s businesses ceased trading many years ago.  He said that his family retains some land which they lease to other people and one of his brothers is operating his own business in the local market without incident.  While he stated that the people leasing the land sometimes make excuses for late payment of the rent he raised no other problems in connection with the land or the running of his brother’s business.  The Tribunal is satisfied that there is not a real chance the applicant will suffer serious harm in the future, including being subjected to extortion demands, arising from his family’s wealth or business ventures.

Fear of harm from Purba Banglar Party members and/or other Muslim fundamentalists because of involvement in a Hindu festival and for speaking about religious tolerance

81.  Significantly, in his written statement of claims the application states that about two days after his involvement in the Hindu Puja event he was taken away from his family home by a group of persons who once again demanded money from him and severely beat him, slashed him with a knife and tortured him by crushing his fingernails with pliers.  He stated at that time that he was hospitalised for one month as a result of this treatment. During the hearing with the former Tribunal the applicant did not mention any physical attack on him after this event.  He simply referred to members of the Purba Banglar Party approaching his father and demanding that he pay them 1 lakh. 

82.  Surprisingly, during the recent proceedings the applicant again maintained that he was in fact tortured by his abductors.  He made repeated references to suffering harm to his fingers.  Additionally, he advised the Tribunal that he was hospitalised for two days following that treatment.  He said he didn’t previously say he was hospitalised for one month but that he stayed one month in hiding after he was discharged from the hospital.  He said that after spending two days in the hospital he went into hiding but continued to receive treatment from the hospital nurses who came to his place of hiding to change his dressings.

83.  The applicant’s most recent oral evidence to the Tribunal is also that his father paid the money demanded of him prior to the applicant’s departure from Bangladesh.  However, in his written statement of claims the applicant states that his father agreed to pay the money in instalments and after he departed Bangladesh his abductors came again to collect money from his father who tried to stall them.  In a restatement of the events following the Tribunal putting its concerns to the applicant about his differing evidence in this regard he then informed the Tribunal that his father paid some of the money on the day of his release and later sold some of his plants and trees to pay the remainder, by which time he had already departed Bangladesh.  No satisfactory explanation was provided for the change in his evidence.

84.  During the hearing the applicant insisted that he had informed the former Tribunal about his physical torture.  He also said that he was a newcomer to the country and was still acting out of fear.  He said he merely answered the questions which were asked of him.

85.  The Tribunal has reviewed all the available evidence and is satisfied that the former Tribunal’s decision record provides an accurate account of the applicant’s oral evidence on that occasion and remains very concerned about the omission of the claimed serious physical attack after the Hindu Puja event in those proceedings.  While the applicant maintained during the hearing that he answered the Tribunal’s questions as put to him he could not adequately explain why his evidence changed in respect of the timing of the money paid to his captors by his father.  As to his changing evidence in respect of the time he spent in hospital the Tribunal has had regard to the letter submitted to the Department purportedly from [Dr. B] of [Hospital] which states the applicant was injured and treated in his hospital from 20 August 2012 to 19 September 2012.  The Tribunal considers this key piece of evidence also does not support the applicant’s latest account of events.  Given the reportedly high prevalence of fraudulent documentation circulating in Bangladesh[2], a matter which was discussed with the applicant in the hearing, and the significantly inconsistent evidence in respect of the claimed period of hospitalisation, the Tribunal is not satisfied that the letter from [Dr. B] can be considered reliable evidence.  The Tribunal rejects the letter as non-genuine.

[2] DFAT Country Information Report, Bangladesh, 22 August 2019

86.  In light of the above concerns, the Tribunal does not accept that the applicant attended a Hindu Puja event in August 2012 or publicly spoke out about religious tolerance at that event.  Nor does the Tribunal accept that he was physically attacked or hospitalised by members of the Purba Banglar Party or any other group after this event or that money was demanded to be paid by his father or that he was informed he could no longer live in the area. 

87.  During the hearing the applicant advised the Tribunal that he does not fear harm from the Purba Banglar Party now because some of the members have since been caught by the authorities and/or shot.  He said he fears the local religious fundamentalists that engaged those party members to torture and threaten him because of his involvement in the Hindu Puja event.  As the Tribunal has rejected the applicant’s evidence in respect of his involvement in that event it also does not accept the applicant will be pursued by Islamic fundamentalists for his role in that event. It follows that the Tribunal is not satisfied there is a real chance the applicant will suffer serious harm from either Purba Banglar Party members or local Islamists on return to Bangladesh for reason of religion, his views of religious tolerance or for his participation in the claimed past events. 

Fear of harm from AL members/corrupt government institutions due to his father’s and his own support for the BNP.

88.  The applicant claims that his father was a wealthy businessman who was influential in local politics and supported the BNP.  He claims that this resulted in his father being imprisoned and being regularly subjected to extortion and politically motivated charges.  The applicant claims that he and his brothers were also sometimes taken to the police station for questioning in connection with his father’s political activities.

89.  Relevantly, the Tribunal notes the applicant has not produced any evidence to substantiate any of the claims made in respect of his or his family’s political affiliations and/or experiences at the hands of the police or the AL.  During the hearing the applicant said he could provide such evidence if given the chance to make some calls to his country.  The Tribunal notes that no further evidence has been submitted to the Tribunal at the time of this decision.

90.  As to his own claimed political involvement in Bangladesh the applicant made no mention of this in his detailed written statement and concerningly only introduced this information during his protection visa interview with the Department.   His oral evidence to the current and former Tribunal in respect of his political activity, while consistent in part with his evidence to the Department, was also unconvincing.   He has stated that his involvement was in name only and that he didn’t fulfil many of his responsibilities.  Additionally, as discussed with him during the hearing when he was asked about any past political activity during his Entry Interview he responded in the negative.  Based on all the available evidence, the Tribunal does not accept the applicant was ever personally a supporter or active member of the BNP in Bangladesh.

91.  Even if the applicant’s claims about his father’s political activities and past consequences which ensued for him and other family members are to be believed, which the Tribunal seriously doubts for reason of the credibility concerns outlined herein, his father passed away eight years ago in 2014 from natural causes.   As discussed with the applicant in the hearing the Tribunal is of the view that any political or economic influence he might once have had would no longer be considered a threat by members or supporters of the AL such that it would warrant ongoing harassment and serious harm to the applicant or other family members.  

92.  Notably, when asked in the hearing whether his family members are currently experiencing any problems in connection with his father’s political profile the applicant stated that his mother and one brother are living in his home village and are not experiencing any problems in connection with his father’s past political involvement because his mother is old and his brother has a physical impairment and is not involved in politics.  He stated that his brother who lives in Dhaka is just a supporter of the BNP but his brother in Jeshore once contested an election under the banner of the BNP but failed in his bid on account of corruption.  The applicant claims this brother continues to participate in BNP activities such as meetings and rallies but he did not elaborate on his current treatment by the AL. 

93.  Having considered the available information, the Tribunal considers its earlier opinion in respect of how the applicant’s deceased father is likely viewed by the AL is supported by the fact his mother and brother are living and working in the local area without currently experiencing any difficulties from members and supporters of the AL or the local police.  While their respective age and disability might be a contributing factor to their ability to avoid harassment, the Tribunal considers it more likely, based on the country information outlined above, that the reason is because they are not wealthy or active supporters or members of the BNP.  Based on the available information the Tribunal considers the applicant will also not be motivated to engage in any political activity in support of the BNP or otherwise on return to Bangladesh.  Consequently, the Tribunal is satisfied he will also be able to live in his local area without incidence as do his mother and brother now that his father is long deceased and their family wealth much depleted.

94.  In the applicant’s earlier evidence, he claimed that his brothers have been implicated, falsely, in cases by political opponents because of their father’s political profile and that the Purba Banglar Party were trying to extort money from his mother because she has a son overseas.   However, the applicant did not mention these assertions during the recent Tribunal hearing.   Indeed, he confirmed that his mother is not experiencing any current problems.  In light of these circumstances, and together with the fact the applicant has in the Tribunal’s opinion made false statements about other important aspects of his claims which call into question his credibility, the Tribunal is not prepared to accept, in the absence of any corroborative evidence, that he or other members of his family were or are the subject of any adverse treatment by the AL, either because of their own or their father’s political profile or because of a perception the family has a wealthy member living overseas.

95.  The applicant stated during the hearing that his only fear is that the AL supporters will think he is wealthy and will ask him for money if he returns to Bangladesh.  He said they might think he will act against the AL and take part in opposition politics.  Based on the available evidence the Tribunal considers his family’s current wealth is not at a level likely to expose him to harassment or extortion or which could suggest an ability to influence local politics.  As noted above, country information[3] indicates that there are tens of thousands of Bangladeshis who exit and enter the country each year without attracting adverse attention of the kind claimed by the applicant.  Based on the Tribunal’s findings above, the applicant does not have a political profile which is likely to attract attention on his return to Bangladesh and the Tribunal considers it speculative that the AL will consider him to be in a position to use his personal wealth to cause damage to the party. The Tribunal does not accept that the applicant will suffer serious harm on account of a perception that he is wealthy and motivated and in a position to use such perceived wealth to influence local politics or cause damage to the AL in his area.

[3] DFAT Country Information Report, Bangladesh, 22 August 2019

96.  For all the reasons outlined above the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm on return to Bangladesh on account of his actual or imputed political opinion. 

Fear of being perceived to be a wealthy returnee from a Western country. 

97.  During the hearing the applicant stated that due to the pandemic he has been struggling financially and has in fact been surviving on funds remitted to him from Bangladesh.  Accordingly, the Tribunal indicated to him during the hearing that it appears unlikely that he will display any obvious signs of wealth if he returns to Bangladesh.  The Tribunal acknowledges the applicant’s response that other persons in Bangladesh won’t necessarily know he hasn’t accumulated any wealth in Australia but again notes the country information cited above which indicates that tens of thousands of Bangladeshi’s exit and enter the country each year without attracting adverse attention of the kind claimed by the applicant.  The Tribunal is not persuaded that the applicant will suffer serious harm in Bangladesh for this reason.

CONCLUSIONS

98.  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) of the Act.

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. For the same reasons already articulated above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk that he will suffer significant harm.  Accordingly, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

2. There is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2) of the Act.

DECISION

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

Tania Flood
Member