Tribunal
14 On 11 October 2016, the Tribunal set aside the delegate's decision to refuse to grant DBY16 a Protection (Class XA) visa and substituted a decision to refuse to grant him a Temporary Protection Class (XD) visa. No objection is taken to the substitution.
15 In its decision record (or DR) at [6], the Tribunal found that, by operation of s 45AA of the Migration Act 1958 (Cth) and reg 2.08F of the Migration Regulations 1994 (Cth), from 16 December 2014, DBY16's application was taken to be, and to have always been, an application for a Temporary Protection (Class XD) visa notwithstanding that the delegate refused to grant a protection visa. It proceeded on that basis.
16 In a broad sense, the Tribunal had concerns in relation to DBY16's credibility. It found that DBY16 "tended to draw on established facts … and misconstrue and exaggerate these to form the basis of his protection claims": DR[23].
17 In relation to DBY16's political profile, the Tribunal:
(1) Noted submissions that, apart from generally supporting the BNP, DBY16 did not claim to be directly or formally involved with the BNP or the work of his brother and while, at the second Tribunal hearing, he could identify the name of the local BNP candidate in the 2008 parliamentary elections, he did not vote because he did not have an ID card and he was vague about when he applied for one: DR[25]-[26].
(2) Noted that DBY16 had consistently claimed that Soleman had a local political profile as a BNP supporter/member and variously expressed his involvement as being a "very active supporter", a member of the BNP at Upazila level and vice president of the Union branch. The Tribunal also noted his evidence to the first Tribunal concerning his understanding of Soleman's activities and considered a copy of a letter dated 25 November 2015 in English which purported to be from the Secretary of the BNP's Upazila Committee in the relevant area which is referred to at [10(2)] above. The Tribunal noted that it had alerted DBY16 to country information about the high incidence of document fraud in Bangladesh and that he responded that he had contacted Soleman who had asked his former colleagues to prepare the letter. The Tribunal had concerns about the provenance and reliability of the letter's contents and found it unclear why DBY16 had not sought further information from Soleman about his past profile and activities. The Tribunal queried why it had been necessary for Soleman to leave Bangladesh in October 2006 when the party continues to have a branch operating in the local area in late 2015. Accordingly, the Tribunal placed little weight on the letter: DR[27]-[30]. The Tribunal found that there was little by way of detail or substance to support DBY16's claims about his brother's political profile in Bangladesh, despite ongoing contact with Soleman who, it is claimed, continues to have some political contacts in Bangladesh. The Tribunal found Soleman's failure to return from Saudi Arabia since late 2006 ambiguous because, although DBY16 claimed that there was no legal reason preventing Soleman's return as he has a valid passport and visa suggesting that his reason for not returning was political, there is no supporting evidence for that. Accordingly, the Tribunal placed little weight on Soleman's presence in Saudi Arabia: DR[31].
(3) Concluded at DR[32], that evidence about Soleman's political profile as a BNP office bearer "weak and inconclusive" and went on to say:
... the Tribunal accepts that the applicant, his brother and other family members at least favour the BNP, and are perceived as such. It also accepts, on the basis that it is plausible though far from certain, that Soleman was a member (or 'effective member' of the BNP in [name redacted] Upazila. However, the Tribunal does not accept on the limited available evidence that the applicant's brother held a leading position, even at the local (union parishad) level; that he left Bangladesh in late 2006 for political reasons; or that he has remained outside Bangladesh for such reasons. It follows that the Tribunal does not accept that the applicant has some elevated political profile through his association with Soleman.
18 In relation to the property dispute and the allegation that the Awami League targeted the applicant's family, the Tribunal stated its concerns at DR[34]. They were in summary:
(1) It was curious that DBY16 had details of the reassurance given by the two brothers that they were authorised to act for the third brother, but had no other details of when the transaction occurred or other basic details about it.
(2) DBY16 could not produce any documentary evidence relating to the land or give meaningful insight as to where the papers might be. While there is no requirement for an asylum seeker to provide documents to substantiate protection claims, DBY16 relies heavily on the contested land title so that even if he could not provide documents such as the sale contract or title deed or any form of registration, the Tribunal would expect the family to have some knowledge of their whereabouts. The Tribunal was not satisfied that DBY16 or any of his family members had made any real effort to document their legal entitlement to the land.
(3) Even taking DBY16's account at face value, the central issue is the legality of the transfer. The 29 August 2016 submissions indicate that that land has been partially taken over by Mr M but the rest of the land is unaffected. This lends weight to the view that any dispute is simply about a contested sale and the aggrieved party would have recourse to the courts or other official channels.
19 At DR[35], the Tribunal concluded:
In light of these concerns, the Tribunal accepts that the applicant's family owns property in their village, and that there has been some kind of dispute over a parcel of land that his father bought many years ago. However, the Tribunal does not accept that the dispute escalated into some broader conflict with the applicant's family or that it has taken on a political character. It reaches this conclusion in view of the very limited available evidence about the land dispute (details about the sale and lack of supporting documentation), and the fact that the applicant's mother continues to live in the family's (undisputed) other property.
20 The Tribunal noted the claim that the family started to be harassed by Awami League members following the election in December 2008, mainly due to Soleman's continued BNP membership (even though he was in Saudi Arabia) and the family's imputed political opinion as his family members. The Tribunal found this claim to be "very general in nature", and "mainly served as a preface" to the claim that the Awami League harassed the family over the land. Given the Tribunal's findings that Soleman was not a BNP office bearer and the family was not imputed with a greater political profile than being BNP supporters, the Tribunal did not accept that they were harassed in early 2009 : DR[36]-[37].
21 The Tribunal noted the claims concerning the linkage between the Awami League activists who targeted the family seeking revenge for Soleman's "torture" of them and the land dispute, with Mr M being part of the group that pestered the family. The claims were that there was continuous harassment including public verbal harassment (without physical violence); that by 2010, there was harassment of DBY16's father at the general store demanding payment of money to Mr M for the property; that the death of DBY16's father in 2010 had been contributed to by the stress and anxiety from Awami League extortion; that activists (with Mr M) came to the family home in incidents in early 2009, January 2010 and early 2011 demanding that the family give up the land or pay a fee (showing that Mr M was associated with the Awami League): DR[38]-[40].
22 The Tribunal was not satisfied as to the cause of death of DBY16's father and had significant doubts about these claims because:
(1) The regularity of the visits, the specific amount demanded at the beginning of each year and the linkage with the amount of the value of the land suggest routine rent payments (whether linked with the land dispute or not) rather than political harassment or extortion. DBY16 responded to this that the visits were unpredictable.
(2) These events occurred over a number of years; it is striking that the family remained in the home throughout.
(3) It was difficult to believe that Awami League figures are so motivated by their enmity towards Soleman to doggedly pursue his family years after he departed Bangladesh. While country information indicates that Bangladeshi politics are volatile and often violent, there was no persuasive material to suggest that Awami League activists targeted the families of BNP members over a sustained period.
(4) In relation to the attack in early 2011 (after DBY16's father died) DBY16 gave the first Tribunal specific details of those family members who had been present but when asked questions about it by the second Tribunal DBY16's response was vague about who had been present and that caused the Tribunal to doubt the truthfulness of the claims.
(5) At both hearings, DBY16 said the family went to the police after that incident, but the police did not record their complaint because the Awami League assailants had called the police beforehand but he could not explain how he knew that.
(6) At the first Tribunal hearing, DBY16 claimed for the first time that he took over his father's shop after his death in May 2010 and Awami League cadres started to confront him. He gave details of an incident in which they inquired after Soleman, demanded money and vandalised the shop. His reason for not making this claim earlier was that he had been stressed while in detention. The Tribunal queried why, given the popularity of the BNP and Soleman's absence, the Awami League had such intense interest in him and his family. DBY16 responded that the BNP leaders are in prison and there is simply not enough room in prison for everyone. The Tribunal queried why, if the Awami League were intent on extorting his family, they had not targeted the shop previously to which DBY16 responded that his father used to give the money when he was alive. The Tribunal found this comment suggested he was referring to routine protection money rather than more serious extortion and violence.
See DR[41]-[44].
23 The Tribunal concluded that it found the entirety of DBY16's claim problematic and it was difficult to believe that Soleman's profile as a BNP activist (or a person whom the Awami League claims "tortured" them while Solemon was in power) led Awami League cadres to target and harm other family members: see DR[45].
24 The Tribunal addressed country information included in post-hearing submissions concerning the "profile of targeted BNP individuals" which contends that political violence engulfs not only leaders and prominent activists but also thousands of opposition members. It stated that it found nothing in these materials to indicate that the Awami league cadres, the authorities or anyone targets and seriously harms (through extortion, physical violence or other means) the parents and siblings of BNP supporters or activists, including those living abroad who maintain some links with the BNP: DR[46]. Country information indicates that protection rackets and extortion are frequent in Bangladesh and the Tribunal accepted that DBY16 may have drawn on experiences that he and his father may have had of demands for protection money from time to time. It did not accept that there were any heightened demands or risks after the death of his father or for any reason linked with Soleman or the land dispute. While DBY16 may have paid some protection money or bribes in connection with the shop, the Tribunal did not accept that that involved harm or threats amounting to persecution or significant harm or that such practices were the cause of the shop closure either during 2010 (as he recently claimed) or in September 2012 (as he recorded in his protection visa application form): DR[47].
25 The Tribunal then considered DBY16's accounts of the incident in August 2012 in the protection visa application, the first and second Tribunal hearings and the BNP letter, including references to the injury caused by the throwing of the brick, whether DBY16 suffered an injury to his elbow or hand in the incident and the identification of Mr M's son as the person injured by the brick. It also addressed the incident in 2012 in which DBY16 claims to have confronted Mr M's son about the harassment and beaten him up and DBY16's failure to mention it in his protection visa application: DR[48]-[54]. The Tribunal queried why - given the claimed links to the Awami League - Mr M has not brought legal action for the land or the assaults and why DBY16 had not made any enquiries about that, which, in the Tribunal's view, cast doubt on whether he had been involved in any such incidents: DR[56]. The Tribunal stated that it did not draw any adverse inferences from DBY16's failure to raise the claimed attempted suicide earlier than he did, but it did not accept that his claim to have suffered depression around this time was evidence of what triggered it and it did not allay the Tribunal's concerns about the truthfulness of DBY16's claims about the land dispute. It did not accept his claim that he went into hiding at his sister's home: DR[57]-[58]. It also rejected his claim that, three and a half years after he left Bangladesh, the cadres were still harassing his mother and threatening to paralyse him if he returns on the basis that it lacks credibility. The Tribunal did not accept that DBY16's claims to past harm and adverse attention were truthful: DR[59].
26 The Tribunal accepted that DBY16 does not hold a Bangladeshi passport and he departed Bangladesh illegally by boat: DR[60]. It accepted that DBY16 and his family prefer the BNP and that Soleman may have been a member of the party before his departure for Saudi Arabia in 2006 but it did not accept that DBY16 had any political profile as an individual or through his association with his brother or his family. It accepted that his family may have had a long-term dispute with some neighbours due to questions about the legality of the land purchase but it did not accept that this was political in nature, that his neighbour enlisted Awami League cadres to support his case and put pressure on the family or that the Awami League cadres use this as an excuse to punish the family for Soleman's past political profile or treatment of the cadres. The Tribunal did not accept that the neighbour, acting alone or with the assistance of Awami League activists, extorted money from the family, robbed them, threatened to expel them from the land, forced the closure of the family shop or harmed them physically or psychologically. The Tribunal accepted that DBY16 may have drawn on some aspects of a land dispute when presenting his claims (such as disagreements over the use of land or payment of compensation) but it rejected the claims about the seriousness of the conflict or its political character: DR[61]-[62].
27 The Tribunal did not accept that DBY16 was involved in incidents as a result of which Mr M's son was injured either with a punch in the face or a brick that hurt his leg or that DBY16 suffered any injury during any such incident: DR[63]. It did accept that, like his father, DBY16 may have had to pay some protection money or bribes, including potentially to criminals associated with the Awami League, as part of the operation of the shop but it was not satisfied that this amounted to serious harm or that these practices led to closing the shop: DR[64]. It also did not accept, on the available evidence, that DBY16 had any mental health issues in relation to the claims or that he had ongoing mental health issues that are relevant to his protection claims: DR[65]. It did not accept that he had been in hiding for three or four months before his departure or that he left Bangladesh in order to avoid harm by the Awami League, or Mr M and his family or others for any reason associated with the protection claims: DR[66].
28 The Tribunal said that it was difficult to engage DBY16 about his future conduct if he were to return to Bangladesh, as he stated that he cannot contemplate returning there. It found, on the limited available evidence, that he would return to his home area where his mother and other close relatives live: DR[69].
29 In assessing the factual claims against the Refugee Criteria, at DR[70], the Tribunal noted that DBY16's claims to a well-founded fear of persecution arose from (a) Soleman's high-level involvement with the BNP; (b) his family's traditional support for the BNP; (c) DBY16's support for the BNP; and (d) DBY16's association with his family and Soleman. At DR[71] the Tribunal accepted that DBY16's family might have a land dispute with neighbours and that the family business may have to pay some protection money, perhaps to Awami League cadres, but it did not accept that these circumstances were for political reasons or that they involved harm amounting to persecution. It rejected all of his other claims. The Tribunal did not accept that if DBY16 returns to his home area now or in the reasonably foreseeable future that there is a real chance that he will face serious harm amounting to persecution for the reason of the fact that he may prefer the BNP, or any other associations through his family, or any land dispute, or any past events, so that the question of relocation does not arise: DR[72]-[73].
30 In relation to the claim of being part of a social group of "individuals who have held information (the witnessing of corruption) adverse to the interests of the Awami League", the Tribunal found that as it had rejected DBY16's claims that his family had experienced extortion (due to any political profile, land dispute or combination of these) carried out by the Awami League or its associates, it did not accept that he holds information about corrupt practices that goes beyond general knowledge or rumours. While it accepted that there may have been payments of protection money in the past, it did not accept that there were factors (such as the quantum of money or any threats) that made those significant. Further, based on DBY16's own evidence about his uncertain plans if he returns to Bangladesh, the Tribunal did not accept that he will feel compelled to expose corruption or take any similar action: DR[77].
31 In relation to the claim of being part of the social group of "BNP landowners living under Awami League rule", the Tribunal noted that DBY16 is the youngest of four sons who has lived outside Bangladesh for several years and there is no evidence that he has title over or de facto responsibility for the family land (or the disputed parcel). It therefore did not accept that he is a "BNP landowner" or perceived as such: DR[78].
32 The Tribunal considered that the claims referred to at [30] and [31] above to be "repackaging" of aspects of the existing protection claims based on political opinion (mainly imputed) and personal circumstances and it was unnecessary to assess whether such particular social groups existed in Bangladesh, whether DBY16 is a member of one of them or whether he has a well-founded fear based on such membership: DR[79].
33 In relation to the failed asylum seeker who departed Bangladesh illegally claim, the Tribunal referred to the submission dated 5 November 2015 drawing on the press report in the Sydney Morning Herald and what might occur if DBY16 were to be detained and punished, in light of Bangladesh's poor humans rights record and prison conditions. It also referred to the post-hearing submission that it was a "factual matter" that it is offence under Bangladeshi law to depart the country unlawfully and that those convicted may face up to one year in prison or a fine. The Tribunal stated that there is no country information to support the "factual matter", although it possibly refers to press reports in February 2016 about a draft bill to replace existing passport law (which relates to the misuse of passports) and there is no information that that law had passed. More importantly, there is no evidence of persons departing Bangladesh illegally, with or without passports, or overstaying while abroad, or unsuccessfully seeking asylum abroad, facing punishment under passports or any other laws for those reasons: DR[80]-[82].
34 The Tribunal accepted that DBY16 does not have a passport and if he were returned to Bangladesh, there was a real chance that the authorities would become aware of his illegal departure from the country in December 2012. However the Tribunal found that there was no persuasive evidence to indicate that the authorities are punishing illegal immigrants. It noted DFAT's July 2016 Country Report which stated that a significant number of Bangladeshis continue to seek higher wages overseas. As of early 2016 there were an estimated 8.6 million Bangladeshi immigrants worldwide and Bangladesh received over USD 13 billion in remittances in 2015, which accounted for approximately 12% of its gross domestic product. Those workers include people who hold valid visas, those who are subject to work contracts, those who overstayed visas and illegal immigrants. The Tribunal was confident that if Bangladeshi authorities were punishing Bangladeshis who departed illegally this would generate reports in Bangladesh and abroad. It found "strong support" in DFAT's July 2016 guidance that Bangladesh accepts both voluntary and involuntary returnees and there is a program that provides assistance to returnees in cooperation with the returning country and the government of Bangladesh. Recent returnees from the UK had not been subjected to any adverse attention. Bangladesh did insist on verifying the identity of returnees. Authorities may take interest in high-profile returnees who have engaged in political activities outside Bangladesh but DFAT assesses that most returnees including asylum seekers are not subjected to adverse attention. Accordingly the Tribunal was not satisfied that DBY16 faced a real chance of harm amounting to persecution because of his departure or return to Bangladesh and there are no factors, such as any high-profile political activities in or outside Bangladesh, that suggest authorities might have an adverse interest in him at all: DR[83]-[86].
35 Considering DBY16's claims individually and cumulatively, the Tribunal did not accept that there was a real chance that he would face serious harm on any convention ground including any political association or his membership of any particular social group such as failed asylum seekers: DR[87].
36 The Tribunal then turned to assess whether, on the evidence before it there was a real risk that DBY16 would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh; that is the complementary protection basis. It was not satisfied that there were substantial grounds for believing that: DR[88], [91]-[92].
37 The Tribunal noted that country information indicates that there are generally high levels of political violence in Bangladesh both between and within the major parties but its findings about DBY16's political interests suggest strongly that he does not face a real risk of significant harm arising from those circumstances. In light of its previous findings it was also not satisfied that the land dispute and the conduct of the family's business would expose him to such a real risk: DR[89].
38 The Tribunal noted that country information also indicates that there are security and law and order problems in Bangladesh including that thugs associated with the ruling Awami League are responsible for some general criminality and protection rackets and that they can and do select their targets based on political allegiance at least at a local level. However for the reasons previously given, the Tribunal did not accept that DBY16 was in the past or will in the future have an elevated risk due to any political leanings. Insofar as his claims relate to the general security in Bangladesh, s 36(2B)(c) of the Migration Act provides that there is not taken to be a "real risk" that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally and the Tribunal was so satisfied: DR[90].
39 The Tribunal concluded that DBY16 was not a person of whom Australia has protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Migration Act: DR[93]-[95].