1507145 (Refugee)

[2015] AATA 3688

1507145 (Refugee) [2015] AATA 3688 (16 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507145

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Chris Thwaites

DATE:16 November 2015

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 16 November 2015 at 1:05pm

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] October 2011 and the delegate refused to grant the visa [in] October 2012.

   CONSIDERATION OF CLAIMS AND EVIDENCE

3. The Tribunal has before it the Department’s file relating to the applicant’s protection visa application and the Tribunal’s files relating to the review application.

4. The applicant’s initial written claims for protection are contained in his visa application forms. In summary the applicant claims that he was involved in Bangladesh Nationalist Party (BNP) politics in Bangladesh. His [Relative A] is a [city official], and his [Relative B] was elected [to a local elected position] and [his relative C] is serving as a [support official] of the [political organisation]. While in Bangladesh the applicant undertook politics under their supervision. While at college the applicant was elected as [office bearer] of the [student organisation]. Due to his active involvement with the BNP he became an enemy to the Awami League and its coalition, and from time to time he would receive threats to stop politics for BNP from the Awami League. To avoid political harassment the applicant obtained a [temporary] visa for [Country 1] and went there. In [Country 1] he was actively involved in BNP politics. From [Country 1] he frequently donated money to his local BNP leaders and activists. In September 2010 he went to Bangladesh attending a political agenda. While in Bangladesh fighting occurred between the BNP and the Awami League. As a consequence, the Awami League members ransacked some BNP members’ houses including the applicant’s. The applicant moved to Dhaka and stayed there for a few days. In the meantime the police visited his area and arrested some BNP supporters. They put them in jail. From Dhaka the applicant went back to [Country 1] to avoid further attack and police arrest. From [Country 1] he came to Australia. The applicant claims he is afraid to return to Bangladesh because he is fearful that his life is not safe under the present Awami League government regime. The applicant fears that if he returned to his country the Awami League will harass him and he will face false cases. The applicant fears police will arrest him and put him in jail. The Awami League government is very hostile to opposition party politicians and their activists. The applicant claims the government has put many BNP politicians in jail without any reason. The applicant fears the police will arrest him and put him in jail or put him into crossfire. The applicant thinks he will be harmed by the Awami League members and leaders, and the government authority, like the police and RAB. The applicant believes he will be harmed if forced back to Bangladesh. The reason for this belief is that the Awami League members, and the present government, is very hostile to BNP members.

5. The applicant claims that Bangladesh authorities cannot protect him. In fact and in tradition the Bangladesh government authorities like politically motivated police and the highly politicised courts will listen to the government. The current Awami League government is very hostile to the BNP politicians and their activists. The applicant believes that if he goes back to Bangladesh the Awami League will kill him as he will go against them.

6. The applicant provided a number of documents in support of his application to the Department including: a number of photographs; originals and copies of letters in support from the applicant’s father [name] dated 10 October 2010 and 15 March 2012, a letter from [Mr D], [a former official] of BNP Australia dated [in] April 2012, a letter from [Relative A], [official and agency], a letter from [Relative C], [support official of a political organisation], dated 20 March 2012, a letter from [Relative B], [a former local elected official], dated 25 February 2012, and a copy of a National University Marks Certificate dated [year]. The applicant also provided a number of internet news articles relating to political violence in Bangladesh, specifically in relation to the BNP.

7. [In] October 2012 the delegate refused to grant the applicant a protection visa because the delegate was not satisfied the applicant had provided an open and honest account of his political activities in Bangladesh. Despite accepting that the applicant may be related to [Relative A name]], [Relative B] and [Relative C], the delegate was not satisfied the applicant was actively involved in politics in Bangladesh, or that he was forced to flee Bangladesh due to his political opinion in 2007 and 2010. The delegate was of the opinion that the applicant joined the BNP Australia in bad faith and solely for the purpose of creating claims of refugee status, and found the applicant had engaged in conduct in Australia for the purposes of strengthening his claims to be a refugee. The delegate was not satisfied the applicant had a real chance of being persecuted for a refugee’s convention reason, and therefore found the applicant’s fear of persecution was not well founded. The delegate was not satisfied that Australia had protection obligations to the applicant under the refugees convention and as a result, the applicant did not meet the criteria for the grant of the protection visa under s.36(2)(a). The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there was a real risk the applicant will suffer significant harm, and therefore the applicant did not satisfy the criteria in s.36(2)(aa). The delegate was not satisfied the applicant was a person to whom Australia has protection obligations under section 36, and refused to grant the applicant a protection visa.

8. On 8 November 2012 the applicant applied to the Refugee Review Tribunal (RRT) (differential constituted) for review of that decision. The applicant provided a copy of the delegate’s decision record to the Tribunal at that time.

9. On 9 September 2013 the applicant’s representative provided a written submission to the Tribunal submitting that the applicant is a person to whom Australia has protection obligations, as he has a well-founded fear of suffering persecution for convention reasons if he returned to Bangladesh for the cumulative reasons of:

   Political Opinion:                    Holding and supporting the political ideologies of the Bangladesh nationalist party (BNP);

   Particular Social Group:         Member of a family unit of the BNP members.

10. The representative’s written submission also referred to a number of country information reports and articles on the political background of Bangladesh as well as the more recent human rights violations and violent attacks against the opposition parties in Bangladesh, in particular against the BNP and its members and supporters. The submission summarises the applicant’s claims stating the applicant fears his persecutors consider he holds political opinions against them due to his actual and imputed political opinion. The applicant reports that he is a local supporter and member of the BNP and a financial supporter of the local BNP, and that he will continue to support and be involved in political activities if he returns to Bangladesh. Political activists who do not accept the ruling government’s political views face persecution from the authorities, and that country information supports the finding that BNP political activists continue to suffer harm at the hands of the Awami League supporters and miscreants with the active and tested support of the authorities; that not only high-profile BNP political leaders but also local level BNP political supporters and members face serious harm from Awami League supporters. The representative submits that the applicant holds a political opinion against the ideologies of his persecutors and therefore the applicant faces potentially life-threatening harm due to the cumulative reasons of his political opinion.

11. On 12 September 2013 the applicant appeared before the RRT to give evidence and present arguments. That Tribunal also granted the applicant time to provide further documents in support of the application after the hearing. On 27 September 2013 the applicant provided copies of letters from [his] college in [Country 1] dated 9 August 2011, a copy of a police entry dated [in] December 2011, a copy of forensic procedure consent form dated [in] December 2011, and a photograph of the applicant in a BNP meeting, and a page from an online newspaper ([named]) showing that photograph published.

12. On 14 January 2014 the RRT affirmed the decision not to grant the applicant a protection visa because, while that Tribunal accepted the applicant and his family members were BNP members and supporters, and that the applicant was involved in BNP activities as a student, it did not accept the applicant was politically active in Bangladesh after he concluded his studies, as he had claimed, or that he had a political profile such that he would be of interest to the authorities/government of Bangladesh/Awami League supporters, or that he had had the difficulties he claimed were the reasons he left Bangladesh in 2007 and 2010. That Tribunal was not satisfied the applicant had a well-founded fear of persecution in Bangladesh; or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there was a real risk the applicant would suffer significant harm. That Tribunal was not satisfied the applicant was a person in respect of whom Australia had protection obligations, and found the applicant did not satisfy the criterion set out in s.36(2)(a) or (aa). That Tribunal concluded the applicant did not satisfy the criterion in s.36(2) and therefore affirmed the decision not to grant the applicant a protection visa.

13. [In] February 2014 the applicant applied for judicial review of that decision to the Federal Circuit Court of Australia. [In] May 2015, by consent, that court quashed the decision of the RRT and directed the Tribunal to reconsider and determine the matter according to law. The court noted that the first respondent conceded that the RRT decision was affected by jurisdictional error in that it had failed to consider the applicant’s claims that he would face persecution because of his continued involvement in Bangladeshi politics upon his return to Bangladesh.

14. On 18 August 2015 the Tribunal received a further written submission from the representative referring to country information reports and statements from relevant independent sources in relation to the persecution of opposition party members and activists in Bangladesh, published after the DFAT Country Information Report of October 2014. The representative also submits that the applicant is an active member of the BNP and that he continues to be involved in his political activities in Australia as well. The submission attached a copy of a letter from [Relative A] and a number of photographs taken of the applicant with BNP Australia members.

15. The submission also attached a copy of a statutory declaration from the applicant dated 18 August 2015. In summary the applicant declares that he was born in [year] in Bangladesh and completed his primary and secondary education before joining a college from [year] to [year]. He declares he is from a politically influential family supporting the BNP, [his Relative C] is a [support official] of [a political organisation], his [Relative A], with whom he has a close association, is [Relative A name], a notable BNP politician in Bangladesh. The applicant declares that while he was studying in college he worked as a supplier of [materials] and also supplied goods to a [business]. The applicant declares he joined [the student organisation] in [year] when he was at college, and soon after that was elected the [office bearer] of the [organisation], after a vote of more than 500 students. In that position he undertook activities such as organising meetings and preparing agendas, promoting parties policies and encouraging students to join the [organisation]. The applicant declares that during the [year] election, he supported [Mr E] who appointed him as a member of the election committee. The applicant went with other BNP supporters and engaged in door-to-door election campaigning and helped organise the election meetings on the college grounds. The applicant distributed handbills and pasted posters. [Mr E] won the election in [year], and the applicant celebrated the victory over the Awami League. When the new [organisation] committee was formed the applicant became an adviser as per party tradition. During the [year] local elections the applicant went to Dhaka and was engaged in political activities supporting his [Relative A], who contested the election on the BNP ticket. The applicant campaigned for her during the election and through her became acquainted with BNP leaders including [name] and [name]. The BNP was in power between 2001 to 2006. In April 2007 the applicant went to [Country 1] on a [temporary] visa after the caretaker government took over office from the BNP. The applicant stayed in [Country 1] from 2007 to 2011. While in [Country 1] the applicant expressed his political opinion and was involved in the BNP [Country 1] branch. He also used to send money to the local BNP in Bangladesh for activities to mobilise BNP supporters. The local BNP activists use the money to convene meetings and educate the public about the party. In [Country 1] the applicant worked as a [occupation]. [In] September 2010 the applicant returned to Bangladesh and stayed for a month. When the local BNP activists heard about his visit they organised a meeting and invited him to give a speech on the activities of BNP particularly in [Country 1]. The meeting occurred in the applicant’s village and was attended by 200 to 300 people [in] September 2010. The meeting was attacked by local Awami League supporters. After the attack the Awami League members attacked the houses of the BNP supporters including the applicant’s house. The applicant was not at home at the time and afterwards the applicant went to Dhaka. The applicant later heard the police visited his area and arrested and jailed some BNP supporters. After one week the applicant returned to [Country 1] [the next month]. The applicant came to Australia [in] August 2011 and applied for a protection visa [in] October 2011. The applicant had previously travelled to Australia, while studying in [Country 1], [in] June 2009 and had left Australia [in] August 2009.

16. The applicant declares that after coming to Australia he continued to be involved in political activities supporting the BNP in Australia. He has attended meetings and protests organised by BNP Australia. He joined BNP Australia in 2011. He has attended meetings and protests including [specified events]. The applicant attended the protest in 2011 at Hyde Park, and in May 2015 he was selected for the post of [office bearer] of [organisation in] Australia.

17. The applicant declares that he will be particularly targeted in Bangladesh because he is from a politically active family, and people in Bangladesh know that he worked for his [Relative A] in her election campaigns. They know that the applicant was close to his [Relative A] and that she helped him in his political activities, and therefore the Awami League people think that his [Relative A] is helping him become a leader in Bangladesh through her connections and help, and they think he will become a notable BNP leader in the future. The local Awami League supporters consider the applicant a real political and potential political threat to them. The applicant declares he continued to be involved with and support the BNP overseas, previously in [Country 1], and now in Australia. There are considerable numbers of Awami League members in Sydney who know of his political activities because his photo was published in the local Bengali newspapers. The applicant fears that his active political involvement in Australia would have been already passed onto local Awami League supporters in Bangladesh. The applicant declares he will continue to be involved in political activities even if he returns to Bangladesh and even if he moves to other parts of Bangladesh. The applicant fears he cannot get police protection in Bangladesh because the police are some of his persecutors. Therefore he cannot get protection from the people from whom he fears harm.

18. On 20 August 2015 the representative provided to the Tribunal a copy of a letter from [Relative C], [support official for a political organisation], dated 10 August 2015, and a copy of a letter from [Mr F], [from the organisation] Sydney Australia dated 11 May 2015, in support of the application.

19. The applicant appeared before the Tribunal on 27 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr D], [the former office bearer of] [a committee of the political organisation] and [former official] of Bangladesh National Party in Australia, as well as oral evidence from [Mr F], [from the organisation] in Sydney Australia. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant was represented in relation to the review by his registered migration agent who attended the hearing.

20. During the hearing the applicant told the Tribunal that if he returns to Bangladesh he will continue his political activity in support of the BNP, and believes he will be at risk of harm from the Awami League members and supporters as well as the police and the RAB. The applicant told the Tribunal that many young people have gone missing and have been killed in Bangladesh recently due to their political activity. The representative submitted to the Tribunal that the applicant comes from a politically active BNP family, which means his profile is different to low level supporters of the BNP, in that his persecutors perceive he will become a BNP leader.  At the conclusion of the hearing the Tribunal granted the applicant time in which to provide any further evidence in support of his application.

21. On 8 November 2015 the Tribunal received a further written submission from the representative referring to country information articles and reports on the continuing human rights abuses targeted at BNP supporters, and submitting the Bangladeshi  government has escalated arbitrary deprivation of the right to life through extrajudicial executions targeting political opposition, and that judicial institutions in Bangladesh are not capable of administering justice in compliance with basic principles of a fair trial, and that Bangladesh’s National Human Rights Commission remains an ineffective organisation and that in real life it is virtually impossible to get a legal remedy from the criminal justice institutions, unless someone is politically or financially influential. The representative submits that the applicant’s persecutors perceive him as a potential future political leader of the BNP. The representative submits the applicant’s political activities in Bangladesh, [Country 1], and in Australia, and his close association with his [Relative A], would establish that the applicant has an adverse profile from the perspective of his persecutors. In addition his active political involvement in Australia is now public knowledge in Bangladesh through Bangladeshi community newspapers published in Australia, online news reports, and news reports telecast on Bangladesh TV channels in Bangladesh. The representative submits that the applicant will be particularly targeted and harmed due to his political opinion and activities and that internal relocation is not an option in the applicant’s case. The representative also submitted an online news article and its English translation with photographs showing the applicant at [an event] held by [organisation] [in] 2015.

1. On 9 November 2015 the representative submitted four photographs picturing the applicant’s attendance and participation in a BNP Australia meeting at [venue] [in] 2015.

2. On 10 November 2015 the representative provided a further written submission referring to a recent Tribunal decision and enclosing a number of online photographs showing the applicant at the [organisation’s event] in October 2015.

3. On 11 November 2015 the representative provided a translated copy of the newspaper report from [source] entitled “[title]” dated [in] October 2015, and a translated copy of a newspaper report from [source] entitled “[title]” dated [in] October 2015.

4. On 12 November 2015 the representative provided a copy of a news report and its English translation published in Bangladesh in [source], reporting on the meeting of Australia BNP leaders and noting the photographs published with the article include the applicant among the leaders.

5. The Tribunal has had the advantage of more evidence than was before the delegate and the RRT, including photographs of the applicant attending BNP meetings and protests in Australia, media articles and letters in support as listed above, as well as oral evidence from [Mr D] and [Mr F] about the applicant’s political activities with BNP Australia. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   FINDINGS AND REASONS

   Nationality

6. On the basis of the applicant’s consistent information provided to the Department and Tribunal about his place of birth and citizenship of Bangladesh, and the presentation of his Bangladeshi passport at the hearing, the Tribunal finds that the applicant is a citizen of Bangladesh.  There is nothing in the evidence before the Tribunal to suggest that the applicant has a right to enter and reside in any country other than Bangladesh.  Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.  As the Tribunal has found that the applicant is a national of Bangladesh, the Tribunal also finds that Bangladesh is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

   Credibility

7. During the hearing the Tribunal discussed with the applicant his background in Bangladesh, his education and family composition, as well as employment and travel history. The Tribunal discussed with the applicant his interest in Bangladesh politics and his family’s connection with the BNP, and his political activities in Bangladesh, and in [Country 1], and Australia, and his fears of returning to Bangladesh.

8. The Tribunal questioned the applicant in detail about his political activities and the positions he held and responsibilities he undertook as a student, and his political activities after he left college in Bangladesh. The applicant’s oral evidence was generally consistent with his written claims and his statutory declaration. The Tribunal also spoke to the applicant about his relatives’ political careers with the BNP, especially his [Relative A’s] political career, and his activities working with her and campaigning for her. His oral evidence was consistent with the contents of the letters from [Relative A]. The Tribunal notes the information about [Relative A’s] elections to the [agency] is consistent with the information available from the Election Commission Bangladesh[1].  The applicant also gave detailed evidence about his activities with BNP [Country 1] and his more recent activities with BNP Australia. The applicant was aware of the leadership of BNP related organisations in Australia and the most recent organisational alliances in Australia. The applicant’s oral evidence was consistent with and supported by the oral evidence of [Mr D] and [Mr F], as well as photographic evidence of the applicant’s participation in BNP Australia meetings.

   [1] >

   While the Tribunal has considered the credibility concerns raised by the delegate and the RRT, and the Tribunal remains concerned the applicant may have exaggerated and embellished his political profile in Bangladesh, the Tribunal notes the applicant has remained generally consistent in relation to his claims to be related to a number of people connected to the BNP, and to have campaigned and been active in the BNP in Bangladesh in the past, as well as to have remained active in the BNP organisations in [Country 1] and Australia. This evidence is supported by a number photographs, publications, and letters he has provided in support of his application, as well as the oral evidence of [Mr D] and [Mr F]. On the evidence before it the Tribunal is satisfied the applicant has told the truth in relation to important aspects of his claims.

   Refugee criterion

9. 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).

10. 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.

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

    Well-founded fear of persecution

12. On the evidence before it the Tribunal finds the applicant comes from a family who supports the BNP in Bangladesh, and has a number of relatives who are active in the BNP. The Tribunal accepts the applicant’s [Relative A] is [Relative A name] and that he has worked with her closely in the past undertaking campaigning and political activities. The Tribunal also accepts the applicant’s [Relative B, named] is [a former elected local official], and his [Relative C] is a [support official] of the [political organisation]. The Tribunal notes these findings are consistent with previous decisions in this matter. The Tribunal accepts that the applicant was active in the BNP student wing while he was a student, and accepts that he was elected as [an office bearer] of the [student organisation] while at college.

13. While the Tribunal accepts the applicant continued his political activity in support of the BNP after he left college, specifically his work supporting and campaigning for his [Relative A], the Tribunal also accepts the applicant’s oral evidence that at the time he left Bangladesh for [Country 1] in April 2007, he had not experience any adverse incidents related specifically to him, and that he left Bangladesh to study in [Country 1] and earn some money and to remove himself from a generally unsafe environment during the period of transition from the BNP government to the caretaker government, as the army was arresting people from all parties at that time. On the basis of the immigration stamps in the applicant’s passport, the Tribunal accepts the applicant was able to leave the country using his own passport, under his own name, and that the applicant returned to Bangladesh in 2010. The Tribunal does not accept the applicant had a political profile at the time he left Bangladesh in 2007 that attracted any ongoing adverse attention from the government, the Awami League members or supporters.

14. The Tribunal accepts the applicant was active with the BNP organisation in [Country 1], and that he returned to Bangladesh for one month in September 2010. The Tribunal notes the applicant re-entered Bangladesh using his own passport in his own name and it does not accept that the applicant had a political profile at that time that attracted any ongoing adverse attention of the Awami League government, police or RAB. While the Tribunal accepts the applicant may have attended a BNP meeting while in Bangladesh, which was attacked by Awami League members, and that BNP members’ houses, including the applicant’s family home, were ransacked in the aftermath, the Tribunal does not accept that the applicant was specifically targeted in this incident. While the Tribunal accepts that the police may have visited his area and arrested and jailed some BNP supporters, the Tribunal also notes the applicant was able to leave Bangladesh at this time using his own passport under his own name, and the applicant did not make an application for protection on his return to [Country 1]. The Tribunal does not accept the applicant was of any ongoing adverse interest to the Awami League government and the police or the RAB in Bangladesh at this time.

15. The Tribunal accepts the applicant remained active with the BNP organisation in [Country 1] after he returned in 2010, and on arrival in Australia in 2011 he became involved with BNP Australia. The Tribunal accepts the applicant has remained regularly involved in the activities of the BNP Australia and its related organisations since his arrival in Australia. The Tribunal accepts that the applicant has been appointed Vice President of [the related organisation in] Sydney Australia in May 2015. The Tribunal accepts that the applicant was amongst a number of attendees at a press conference held [in] 2015 in relation to the importance of a united BNP in Australia. This finding is supported by photographs and the oral evidence of [Mr D] and [Mr F], who were also in attendance.

16. While the Tribunal is not satisfied the applicant is currently of any adverse interest to the Awami League government or its members and supporters or the police or the RAB, given the applicant’s long history of political activity in support of the BNP, and his activities with BNP [in Country 1] and now BNP Australia, as well as his relative’s political careers with the BNP in Bangladesh, the Tribunal accepts the applicant will continue his political activity in support of the BNP if he returns to Bangladesh. Given his family’s BNP connections, the Tribunal does accept there is a real chance the applicant will be perceived as a potential BNP leader and would therefore attract ongoing and specific adverse attention of the Awami League and its members and supporters.

17. The Tribunal has considered the country information provided by the representative and accepts that there is violence between supporters and members of rival political parties in Bangladesh. The Tribunal accepts the DFAT Country report Bangladesh (20 October 2014) assessment which states:

    DFAT 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. Opposition leaders or members with high profiles face a low risk of being individually targeted for arrest and detention due to engagement in general political activities. Opposition party members engaged in protests face a low risk of being arrested. However, opposition leaders, or members with high profiles, may face higher risk of arrest when engaged in political protests.

18. In the applicant’s particular circumstances, the Tribunal accepts there is a real chance the applicant will be perceived as a potential BNP leader and will gain a profile that attracts the adverse attention of the Awami League and its members and supporters. The Tribunal finds that if returned to Bangladesh there is a real chance the applicant would come to the adverse attention of the Awami League and its supporters due to his political opinion and activities, and will be harassed, threatened and physically attacked or killed. Therefore the Tribunal accepts there is a real chance the applicant would suffer serious harm if he returned to Bangladesh.

19. In these circumstances, and given the DFAT assessment noted above, the Tribunal is not satisfied the applicant could access adequate protection from the State authorities against the feared harm, due to his political profile and the political affiliations of the people who wish to harm him.

20. For the reasons outlined above, the Tribunal is satisfied that the applicant’s fear of persecution is well-founded.

21. The Tribunal is satisfied that the applicant’s political opinion is the essential and significant reason for the persecution as required by paragraph 91R(1)(a) of the Act. The Tribunal finds that the harm the applicant fears involves ‘serious harm’ as it amounts to significant physical harassment and significant physical ill-treatment as listed in paragraph 91R(2), and as required by paragraph 91R(1)(b) of the Act. The Tribunal also finds that the persecution which the applicant fears involves systematic and discriminatory conduct, as required by paragraph 91R(1)(c).

22. 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, objectively, there is no appreciable risk of the occurrence of the feared persecution, that is, where the feared persecution is localised rather than nation-wide. The Tribunal finds the applicant fears persecution from Awami League members and supporters assisted by State authorities, and therefore the feared persecution is not localised and relocation inside Bangladesh is not an option in these circumstances. The Tribunal finds the applicant has a well-founded fear of persecution for a Convention reason throughout the entirety of Bangladesh.

23. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

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

    Chris Thwaites
    Member  16 November 2015

    
    

    ATTACHMENT: RELEVANT LAW

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

    Refugee criterion

26. 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).

27. 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.

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

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

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

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

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

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

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

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

    Complementary protection criterion

36. 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’).

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

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

   Section 499 Ministerial Direction

3. 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.