1502160 (Refugee)

[2016] AATA 4136

1502160 (Refugee) [2016] AATA 4136 (11 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502160

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Tania Flood

DATE:11 July 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 11 July 2016 at 3:29pm

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 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 [in] August 2013 and the delegate refused to grant the visa [in] February 2015.

3. The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, 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. Although the delegate refused the application as an application for a Protection (Class XA) visa, the effect of r.2.08F is such that the application the Tribunal must consider is one for a Temporary Protection (Class XD) visa.

4. The applicant appeared before the Tribunal on 1 July 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. 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).

8. 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.

9. 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’).

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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.

11. The issue in this case is whether there is real chance the applicant will suffer serious harm on return to Bangladesh for a Convention reason or alternatively whether there are substantial grounds for believing there is a real risk he will suffer significant harm if returned from Australia to Bangladesh.   For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Summary of claims

    Entry Interview

12. He left Bangladesh for political reasons.  He belonged to the BNP and in 2012 and 2013 people from the ruling Awami League party threatened him to give them money or be killed.  He said people came with a pistol and said that if he does not give money or join the party they will take him away and shoot him.

    Statutory Declaration dated 31 July 2013

13. He attained his higher school certificate in [year] and thereafter worked as [an occupation].  In 2008 he opened his own [business] which he operated until 2010.  [In] August 2011 he travelled to [Country 1] to work in a [products] company as [an occupation].  He returned to Bangladesh [in] August 2012 and was unemployed.  He spent his time being politically active and assisting his father on their [business].

14. [In] 2006 he joined the Bangladesh Nationalist Party (BNP).  He had been a supporter of the BNP party for many years but decided to become a member in 2006.  He joined as a member of the local BNP branch in [his home] Village.

15. The BNP party appeals to him because he agrees with their pro-development platform and their advocating for more charity and assistance for the poor and needy in Bangladesh.  The BNP is also seeking to rid Bangladesh of corruption.

16. As a member he attended political meetings and joined in with political discussions.  During election campaigns he joined the political rallies to raise support for the BNP and its candidates.  He encouraged friends and acquaintances to support the BNP and vote for them during elections.  He assisted the election campaigns of BNP candidates by erecting posters and other political paraphernalia.  He also looked for potential recruits and encouraged them to join the party.  His political activities had come to the attention of the opposing Awami League (AL) party.

17. On [a date in] October 2012 he was attending a BNP political meeting when AL members with sticks, knives, belts and axes arrived and disrupted the meeting.  The BNP members ran for their lives and he was also fortunate to escape.

18. After the attack the BNP local branch called the police however they were not interested in getting involved.  The police are linked to the AL which is now the governing party.

19. After the attack on their office he was walking to the market when he was approached by 10 to 12 AL members.  They stopped him and asked him to quit the BNP and join the AL.  They said that if he did not join the AL they would kidnap and kill him.  He was frightened by the threat but allowed to continue on his way.

20. Just over two weeks later on [a date in] November 2012 he was approached again by another mob of 15 to 16 AL members.  He was returning to his home from the supermarket.  One of the AL members had a pistol and placed it on his forehead.  He told him he had to give him money or join the AL party.  He asked how much money he wanted and he told him to pay [amount] laks.  He told the AL member he did not have the money and needed time to raise it.  The extortionist gave him a fortnight to pay.

21. After a fortnight he did not pay the money and the AL members began searching for him.  He had to hide with friends who were neighbours of his in his village.  He then left his village to hide with friends in the village of [Village 1].  Whilst he was hiding in [Village 1] he heard that the AL members had gone to his house looking for him and when they did not find him they assaulted and beat his [Relative 1] with sticks and belts.  His [Relative 1] was forced to tell them he was hiding in [Village 1] in order to save his own life.

22. He realized that eventually the AL members would kill him and he decided to flee Bangladesh for his own safety.  He managed to avoid the AL extortionist until he was able to arrange for his departure from Bangladesh.

23. If he returns he will be seriously harmed or killed by members of the AL party who have threatened to kill him and tried to extort money from him.  He is considered an opponent of the AL party as he is an active member of the BNP.  They are demanding that he cease his political activities for the BNP.

24. He is not able to get protection from the local authorities because the police are corrupt and are linked to the AL party.  He has been told the authorities will not assist him because he has no financial backing and the AL is connected to the police.

25. The AL is in government at present and there is nowhere in Bangladesh he can go to find protection.

26. On 21 June 2016 the applicant’s representative submitted the following:

27. Regarding the level of the applicant’s political profile it is not even necessary that he actually hold political opinions in support of the BNP, it is sufficient that he merely be perceived to do so.

28. Given the nature of political violence in Bangladesh it may be said that the level of one’s political involvement may be largely irrelevant to whether or not it is likely a person will be targeted for harm on that basis.  Country information is referenced indicating the level of political violence prevailing in Bangladesh.

29. The environment has not improved since the applicant left Bangladesh in 2013.  In April 2014 a Human Rights Watch report, Democracy in the Crossfire: Opposition violence and government abuses in the pre and post-election period in Bangladesh, describes the 2014 elections as the most violent in the country’s history.

30. The Delegate rejected the applicant’s evidence about his involvement with the BNP on the basis that it did not conform with country information about the structure and operations of the party.  Information referred to by the Delegate in his decision dates from 2006.  The BNP have not been in power in Bangladesh since 2006 and it is arguable that in the ensuing chaos of the Bangladeshi political atmosphere, village politics may have been considerably less formal.

31. Regarding the Delegate’s query of the fact the applicant’s appointment appeared to be open ended when the country information indicated that membership of the ward was a [number] year term, the applicant submits that there were no elections because many people were afraid to take on the responsibility.

32. It is not enough to discount the evidence in relation to the attack on the applicant’s [Relative 1] on the basis of speculation about the level of English used by the local doctor in his letter.  This is particularly the case in light of ample country information evidencing the widespread use of political violence of the kind described by the applicant.

33. The harm feared by the applicant, amounts to serious harm, and will be inflicted for reasons of his political opinion and/or imputed political opinion.

34. Country information demonstrates that both supporters and members of parties opposing the Bangladeshi government have been subject to persecution.  This persecution is not limited to attacks on high-profile individuals; even ordinary opponents of the government have been subject to violence from supporters of the ruling party, aided and abetted by the state.

35. The applicant’s fear of harm is well founded in light of the increased violence since Bangladesh’s disputed presidential election of January 2014.

36. While DFAT’s reported dated October 2014 assesses that supporters or members of political parties in Bangladesh are not at risk of being arrested or living in fear of violence on a day to day basis due to their political affiliations, very recent news reports recount that at least 12 people were killed and over 200 injured in violence surrounding the local council elections in many districts including the applicant’s [district].

37. Country information shows that the Bangladesh state has been accused of being complicit in the suppression of opposing party’s supporters.  Even where the state does not directly target the applicant it will not take effective measures to protect him from non-state actors on account of his imputed political views.

38. Relocation is not a relevant alternative for the applicant as he fears persecution from members of the AL who are the ruling party and who have a presence across all of Bangladesh.  The harm feared by the applicant will be condoned or tolerated by the government.  There is nowhere to which he may go where such violence will not continue to be tolerated by the state.

39. Nonetheless it would be unreasonable to expect the applicant to relocate within Bangladesh because he would have difficulty finding employment due to his lack of connections in other parts of Bangladesh.  Even if he were to find a home and employment it is not reasonable for the applicant to attempt to hide from those who are opposed to the BNP throughout the nation of Bangladesh.

40. Attacks against those who appear to be aligned with the BNP have become increasingly violent in Bangladesh.  The applicant cannot be required to renounce his allegiance to the BNP in order to gain the state’s protection.

41. The likelihood of the applicant being individually targeted in an atmosphere of general political mayhem is not remote.

42. If the applicant were to return to Bangladesh he would experience significant harm whether for Convention reasons or otherwise.  He would be unable to receive state protection against the harm he fears and would not be able to relocate within Bangladesh to escape such harm.  Therefore there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia there is a real risk he will suffer significant harm.

43. Country information is referenced including reports by the US Department of State, Amnesty International, Human Rights Watch, Freedom House and Odhikar.  Based on those reports it is submitted that:

    -opposition parties and their supporters have been harassed and targeted in violent attacks, with party activists suffering assaults and abductions.

    -The Bangladeshi state has been accused of complicity in the suppression of opposition supporters including through politically motivated arrests and charges

    -The Bangladeshi state, even where willing to intervene, has failed to protect opposition supporters against harassment, intimidation and persecution

    -Such conditions prevail throughout Bangladesh.

    BNP member and activist

44. The applicant was able to speak in detail and at length about the history of the BNP and was conversant with the four main principles of the party and the party’s internal structure.  In his interview with the Delegate the applicant accurately described the BNP flag and the significance of the colours of the flag.  He was able to name for the Tribunal the local Chairman of the BNP and the BNP candidate he voted for in the 2008 election and knew the outcome of the vote.  Further, the applicant described in some detail his motivation for supporting the party which he said commenced in 2006.

45. As to his claims to be a formal member of the party the applicant originally stated he joined up in [2006]. In further discussions he said he starting working for the party in 2006 and became a registered member in 2009. He said that the party takes some time to observe the activities of its supporters before offering them formal membership. The applicant could not accurately describe the process of obtaining membership but later said he did fill out a form in 2006 but never paid a joining fee because he supported the party financially in other ways.

46. The Tribunal put it to the applicant that it was unusual he had such difficulty articulating the membership process given he claims to be [a specific] Committee Member and to be familiar with the BNP’s constitution[1] which clearly outlines the membership process. Based on the entirety of his oral evidence, it is the Tribunal’s view the applicant was confusing the discussion about taking out membership of the party with the process he engaged in to become [a specific] Committee Member of his local Branch.  In this respect he stated he did not complete any application and that there was no need for an election as there were not enough people interested in holding the position.  

    [1] Bangladesh Nationalist Party – BNP Constitution, amended up to 8 December 2009

47. With respect to his level of political involvement the applicant stated he attended party meetings regularly; weekly during election periods and at least once per month otherwise.  He said he also attended meetings at the Upazila level where they received instructions on and advice on what and how to speak with people in their local area.  He said that he was actively engaged in promoting the ideas of the party by going door to door and discussing issues with people in the market and other public areas.  He said he regularly invited and encouraged people to attend BNP meetings. 

48. The Tribunal asked the applicant whether he was in contact with the BNP in Australia and he said he was.  He said he has attended some meetings here but not regularly as he does not have that much time due to his work.  He said he last attended a meeting in 2015 in [suburb].  The Tribunal put it to the applicant that his actions in Australia don’t appear to support his claims to be a tireless worker for the party and asked whether he would resume the same or a different level of activity if he returns to Bangladesh.  The applicant replied that he is involved with the BNP in Australia but cannot always attend meetings.  However, he said that if he returns to Bangladesh he will have to get involved with the BNP.  When asked to explain this he said that he is fully committed to the party and will re-engage with their political programs on return to Bangladesh.  He said he could not detach himself from the party as he supports their policies and considers the BNP like family.  Further, he stated that if he does not continue his involvement with the BNP he will be separated from a potential source of protection and therefore will be more at risk.  He said it will be better for him to remain involved with the BNP. The applicant’s representative submitted that his level of activity in Australia is not indicative of what he will do if he returns to Bangladesh and the Tribunal found this persuasive.  In a post hearing submission the applicant provided the Tribunal with a copy of a photograph which shows him attending a BNP meeting in Australia.

49. While the applicant’s responses to questions about the BNP could have been rehearsed his claims regarding his involvement with the BNP have been consistent throughout and in the Tribunal’s view he has demonstrated a level of knowledge of the party and a level of activity consistent with a person who has been involved with the BNP for several years.  In support of his claims, the applicant has produced a copy of a letter from [Mr A], [Office Bearer] of the BNP, [Branch 1].  The applicant was asked how he knows [Mr A] and he replied he is from his village but is also the leader at the Upazila level.  He said he always came to their party meetings and activities.

1. At hearing the Tribunal expressed reservation about the authenticity of the letter from the BNP noting the prevalence of document fraud reported in Bangladesh.[2]  However, given the applicant’s level of knowledge of the BNP, his reported level of activity and stated commitment to the party, and the fact he has had some contact, albeit limited, with the BNP in Australia, the Tribunal has given weight to the letter from the BNP. 

   [2] DFAT Country Information Report, Bangladesh, 5 July 2016

2. While the Tribunal notes the Delegate did not accept the applicant was anything other than an ordinary member of the BNP, based on the information before it, the Tribunal is persuaded he is a member of the BNP and that he was [a specific] Committee Member of his local BNP branch.  The Tribunal also accepts the applicant was actively involved in promoting the BNP party in his local area in Bangladesh making him a known supporter of the BNP in his local area.  Further, the Tribunal accepts the applicant remains committed to the party and motivated to continue working with them should he return to Bangladesh, both for political and practical purposes.

   Past encounters with Awami League (AL) members and supporters

3. When asked to describe his past encounters with Awami League members the applicant again provided a broadly consistent account of the claims outlined in his written statement.  He was able to recall without hesitation and in detail the dates, location and circumstances of three critical events.  When asked about the meeting which was interrupted [in] October 2012 he could state the time of day, how many people were present and the topic of discussion at the meeting.  Similarly, in discussing the times when he claims he was accosted by Awami League members he was consistent in the detail of when and where the events occurred, the numbers of people involved and what was said to him on those occasions.  Based on his oral evidence, the Awami League members had noticed he was a politically active person and were attempting to recruit him to their side of politics and/or extort money from him.  In this respect, the Tribunal notes DFAT’s latest country report[3] acknowledges that Awami League members and activists reportedly extort BNP supporters or members, particularly in rural areas, threatening them with violence if they fail to comply with demands for money.

   [3] DFAT Country Information Report, Bangladesh, 5 July 2016.

4. The Tribunal expressed some reservation at hearing about why he would have been targeted in this manner by Awami League members given he was away in [Country 1] for a year from August 2011 to August 2012 and therefore had only relatively recently resumed in his political involvement when the incidents occurred.   The applicant replied that his political involvement had become apparent to the local Awami League and the Tribunal acknowledges the applicant indicated early in the hearing that when he returned from [Country 1] he was unemployed and therefore had more time for his political activities. 

5. The Tribunal has also had regard to the fact the applicant made no attempt to report these incidents to the police.  When questioned about this the applicant stated that when the meeting was disrupted on [a date in] October 2012 the local [senior official] did place a call to the police but it was given no importance.  Further, he stated that he did not go to the police himself when accosted by the Awami League members because the police collaborate with the Awami League and he knew it would not achieve anything. 

6. DFAT’s most recent reporting on state protection in Bangladesh[4], acknowledges that political manipulation and corruption operate to constrain the rule of law.  DFAT’s report notes International Crisis Group advice that political and bureaucratic interference is a significant impediment to police efficiency.  BNP and AL Governments have both used the police to undermine opposition forces, and many politicians have used the police to advance their political interests.  While it is noted that senior officers are relatively well trained, the lower ranks are often poorly paid, trained and equipped.

   [4] DFAT Country Information Report, Bangladesh, 5 July 2016

7. A report published by Landinfo, the Norwegian Country of Origin Information Centre, dated 4 July 2013, states in its summary that the police force in Bangladesh is generally inefficient, and corruption is widespread at all levels.  Low wages, lack of education and poor working conditions contribute to maintain corruption and susceptibility to pressure.  Police investigation of criminal offenses is often inadequate and the police can be reluctant to investigate persons affiliated with the ruling political party.  Malicious accusations and fabricated cases occur in order to frame personal and political enemies and to achieve financial gain.

8. The Asian Human Rights Commission noted in 2013[5] that in Bangladesh’s criminal justice system practically every step requires bribery and persuasion by influential persons from the ruling political parties.  Complainants have to pay bribes to police officers to register complaints, along with using their political connections to pressure the police and others involved in the process.  Often, the perpetrators become very influential due to their capacity to pay a higher bribe to the police and manage to ensure backings from the ruling political parties.  The police protect the perpetrators, receiving bribes and/or following political persuasions.

   [5] Asian Human Rights Commission, Collapsed criminal justice system compounds violence against women, 21 May 2013

9. A UK Home Office report of November 2014, quotes various sources (US State Department, Odhikar and Human Rights Watch), who report the Bangladesh security forces commit abuses of power and act with impunity.

10. In view of the above country information, the Tribunal accepts the applicant was unwilling to report the threats made on him by the Awami League to the police for the reasons given and has not inferred his lack of action against his alleged perpetrators casts any doubt on the veracity of his claims.    The Tribunal has found no reason to disbelieve the applicant’s account of his past encounters with Awami League members or supporters and considers he has provided a broadly consistent and plausible account of the events outlined.   The Tribunal accepts the applicant attended a BNP meeting on [a date in] October 2012 which was disrupted by members of the Awami League and that Awami League members or supporters subsequently accosted him on two different occasions and demanded money and that he join their ranks or be seriously harmed.

    Avoidance of harm and continuing harassment of family

11. The applicant claims that following the threats received from Awami League people in his local area he went first to hide with neighbours and then with friends in [Village 1], which is approximately four to five hours drive from his village.  He said he had many friends in [Village 1] and stayed in various houses for a period of about two and a half months.  He said he kept a low profile, remaining at home with the support of his friends.

12. The applicant claims that during this time Awami League people went to his family home and when they did not find him they beat his [Relative 1] and obtained information from him about where he was staying in [Village 1].  The Tribunal notes the applicant has produced a copy of a medical certificate which indicates his [Relative 1] was treated for injuries to his [specified body parts], which were received on [a date in] January 2013.

13. The Tribunal expressed doubt that his [Relative 1] would have revealed his true location in [Village 1] but the applicant stated it was because he is young and he was scared.  The Tribunal asked whether his [Relative 1] and the rest of his family knew his exact address in [Village 1] and the applicant stated that he provided them with an address.  The Tribunal asked why the Awami League people who were looking for him did not come to that address.  He then said he was staying in several different places but that his friends told him that there were people in town asking around about someone but they did not exactly say they were looking for him personally. 

14. At the commencement of the hearing when asked where he was residing immediately before his departure from Bangladesh the applicant stated that he was staying with various classmates in [Village 1] which accords with the above.  The Tribunal is therefore not persuaded the applicant’s [Relative 1] had an exact address to give to the Awami League people.  Further, while the above mentioned medical certificate indicates the applicant’s [Relative 1] was treated for various injuries the evidence sheds no light on the manner in which those injuries were sustained.  The Tribunal is not persuaded that Awami League members or supporters beat the applicant’s [Relative 1], obtained information about his whereabouts in [Village 1] or that they came to search for him in [Village 1]. 

15. The applicant also claims that the Awami League people who are looking for him continue to abuse and harass his family.  He said for this reason he has stopped calling his family.  When asked why he cannot call his family he said when he used to call they would be abused and harassed afterwards.  The Tribunal questioned how the Awami League people would even know he had called his family and the applicant replied that the neighbours commonly report such things in the village.  The Tribunal is not persuaded that the applicant’s parents would place him or themselves at risk of harm by speaking about the applicant or his whereabouts publicly in the village or that the act of him phoning his family would place them at risk of harm.  The Tribunal considers the applicant has introduced these claims in a bid to embellish his circumstances and strengthen his overall claims.

    Relocation and future political involvement

16. The Tribunal put it to the applicant that his political involvement before departing Bangladesh appears to have been restricted to his local area from which he has been absent for some three or four years.  The Tribunal asked the applicant why the Awami League people who previously threatened him would still maintain an interest in him given his political involvement in the area has long ceased.  The applicant maintained that they will still want to destroy him because he was deeply involved in local BNP politics. 

17. The Tribunal asked the applicant why he could not relocate elsewhere in Bangladesh to avoid any harm from these people.  He replied that he moved to [Village 1] which is a considerable distance away and he still wasn’t safe there.  He said that Dhaka is only [distance] from his village.  Further, he said that the Awami League and the police and RAB are working together and through their networks they could easily locate him. 

18. Based on past experience and given his ongoing commitment to the BNP and likely ongoing political involvement the Tribunal accepts the applicant’s presence in his local area might reignite old resentments and place the applicant at risk of serious harm at the hands of Awami League supporters.  However, the Tribunal does not find it plausible that the perpetrators from his past would maintain an interest in locating him in another part of the country.  Indeed, given the size of the population of Bangladesh the Tribunal is not persuaded they would easily be able to do so.

19. Unlike the Delegate, the Tribunal has also considered the likelihood of the applicant continuing to engage in BNP political activity on return to any part of Bangladesh.  As noted above, the Tribunal accepts the applicant will continue to be politically active in support of the BNP if he returns to Bangladesh.  In view of his willingness to accept a leadership role in the past and based on the claims made at hearing, the Tribunal considers it likely he may again pursue an active role in the party and possibly another higher role in the organisation on return to Bangladesh.  The Tribunal considers this will elevate his political profile and place him at higher risk of harm than an ordinary BNP supporter.

20. In arriving at this decision the Tribunal has had regard to independent country information and accepts that there is a very high level of violence between supporters and members of rival political parties in Bangladesh.  Most of the current reporting details attacks against the BNP and other opposition party members and supporters by members and supporters of the ruling Awami League and/or security forces.

21. DFAT’s latest country report[6] states that the Awami League’s current term in government has seen as escalation in longstanding tensions between religious and secular Bangladeshi identities and an increasingly gridlocked set of national political institutions and this has resulted in significant levels of political violence.   The 2014 national election failed to create the necessary conditions for transparent, inclusive credible elections and the local government and council elections on 28 April 2015, 30 December 2015 and 23 March 2016 were similarly marred by violence, electoral irregularities and suspension of voting.  In May 2016, the Asia Foundation published the findings of a survey which reveal that political tolerance and freedom of speech had declined significantly since 2006, suggesting increasing political polarisation in Bangladesh.  A third of respondents stated that they did not feel free to express their political opinions, and a third said they would be unwilling to allow other political parties to hold meetings in their area.

    [6] DFAT Country Information Report, Bangladesh, 5 July 2016

22. DFAT assesses that under the current Awami League Government BNP leaders and JI members are subject to a high level of official discrimination during periods of heightened political tension, particularly national elections.  BNP supporters or members in rural areas are subjected to a low level of violence associated with Awami League extortion.

23. Various reports by Amnesty International[7] point to the lack of freedom of expression in Bangladesh and associated political violence and to inadequate and often complicit responses of the Bangladeshi authorities to such intolerance and violence.  Similarly reports by Human Rights Watch and Odhikar[8] document growing numbers of cases where opposition members and political activists have disappeared without trace and the use of excessive force by the security forces against anti-government protesters. 

    [7] Amnesty International, Amnesty International Annual Report 2013 – Bangladesh, 23 May 2013; Amnesty International, Bangladesh, Investigate deaths in protest clashes to prevent more bloodshed, 7 May 2013; Amnesty International, Bangladesh: Disturbing increase in disappearances, clampdown on press freedom, 2 September 2014

    [8] Human Rights Watch, Bangladesh, Alarming Rise in Disappearances, 27 April 2012; Human Rights Watch, Bangladesh: End Unlawful Violence against Protesters, 3 May 2013; Human Rights Watch, Bangladesh, A Tragic Backward Slide on Human Rights, 21 January 2014; Odhikar, Human Rights Report 2013, 15 April 2014

24. The Tribunal put it to the applicant at hearing that despite this reporting, given the size of the BNP it is difficult to accept that every BNP supporter is at risk of serious harm in Bangladesh.  However, on further consideration and given the above findings about the applicant’s likely future political involvement, the Tribunal has adopted a cautious approach in determining the degree of risk he is likely to face on return to Bangladesh in view of the country information before it.  As such the Tribunal is persuaded and prepared to accept there is a chance, which is not remote, that that the applicant will attract ongoing and adverse attention of Awami League members and supporters regardless of where he is located on return to Bangladesh on account of his political involvement.   

25. Given the above reporting about the efficacy and political affiliations of the Bangladeshi security forces the Tribunal is not satisfied the applicant could access adequate protection from the State authorities against the feared harm.

26. The issue of whether it would be reasonable to expect an applicant to relocate within their country only arises if the circumstances indicate that there is a region where there is no appreciable risk of the occurrence of the feared harm, that is, where the feared harm is localised rather than nation-wide.  The Tribunal accepts that the applicant will continue to be politically active in opposition to the current government in Bangladesh wherever he resides.  The Tribunal finds the applicant fears harm from members and supporters of the ruling Awami League party, assisted by the State authorities, and therefore the feared harm is not localised and relocation inside Bangladesh is not an option in these circumstances.

27. Given the reportedly heightened political and security situation in Bangladesh the Tribunal finds that there is a real chance that the applicant, with his political profile, would be exposed to serious harm on return to Bangladesh.  The Tribunal finds there is a real chance he would be targeted by Awami League members or supporters and that he would be harassed, physically harmed, tortured or even possibly killed for his political involvement. 

28. For all the above reasons, the Tribunal finds the applicant has a well-founded fear of persecution for a Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore the applicant satisfies the criterion set out in s.36(2)(a) of the Act.

    DECISION

29. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    Tania Flood
    Member