1511735 (Refugee)

[2018] AATA 4505

1511735 (Refugee) [2018] AATA 4505 (17 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511735

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Angela Cranston

DATE:17 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 17 September 2018 at 2:29pm

CATCHWORDS
REFUGEE – Protection visa – Bangladesh – particular social group – family member of government officer – passed information to father – victim of assault – threatened and abducted by terrorists – delay in protection application – attended Chhatri Shibir lectures – family suspected to violence – inconsistent information – applicant claimed interpreter problems – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 on 31 July 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2.The applicant who claims to be a citizen of Bangladesh, applied for the visa on 9 February 2015. In his application, the applicant stated:

I am a Bangladeshi Sunni born in Dhaka and lived with my parents at [an address in], Uttara, Dhaka in Bangladesh. My father is a retired [senior security official] and is well-known in our area as a strict disciplinarian. My father wished that we too studied hard to work in the government sector. My father was serving the government and was known as a reliable [security official] who never feared to face the terrorists or religious fanatics who were harassing the locals with their radical ideologies. My father had risked his life many times with the terrorists when he went in search of them to Bangladesh Indian borders. He was shot numerous times and miraculously escaped death. He was slashed with a knife on his back and still he survived it. He had travelled to India in search of these terrorists known as Jamaat-e-Islami Bangladesh. My father was entrusted with the responsibility to control and discipline the students and the youths who are members of the Islami Chhatra Shibir (ICS) which is the student wing of Jamaat-e-Islami (Jel). Most of the students are aware that my father would go to any extent to arrest and detain any students at colleges and schools who engage in political activities supporting the Jamaat-e-Islami. My [brother] was terrorised by these student wing that he never wished to become a [security officer] like my father. My father was trying to educate me as to the problems faced by the younger generation in Bangladesh especially in the areas of Mankganj, Chittagong and Rajshahi where he was posted most the time to fight the terrorist infiltration. My father gave me courage and confidence and urged me to take up [security] training course so that I could enter the [government] department to serve my country. From my young days I was brainwashed by my father to become a [security officer] but my mother was against it as my father had escaped death many times.

At college many students repeatedly questioned me whether I would follow my father’s footsteps and in fear of being targeted I declined. I started to develop the idea of becoming a [security] officer and later end up as a [senior security official] like my father as I was taken up with my father’s privilege he had as a senior [official]. I was very young at the time and listened to my father’s advice. The students supporting the ICS frequently ordered the students to summon in different classrooms at different times to listen to their lectures in relation to their ideals and how the youths could reform the country. During and after the end of the meeting they would do hat-collection from all the students and those students who had no money to contribute had to pay the money the following day. This continued every week or two and my father advised me to listen to the contents of the speeches and the details of the students who were giving lectures.

Most of the time they were talking about supporting JeI and fight to make Bangladesh a Muslim country and introduce Shariat law and practice. They wanted to work along with Pakistani Muslim organisations to achieve this and the youths of Bangladesh should come forward to fight for the Unitary Muslim state. I told my father in details what were discussed. My father used these information to trace these students movements and informed the local police officers to arrest them during the meetings. During one of the meetings the police officers arrested all the students along with those students who convened the meeting who happened to be from neighbouring schools. When they interrogated all the students in batches they questioned about our ICS involvement in the past. When I was taken in for questioning along with six other students, the police officers released me immediately when I mentioned my father’s name and my address.

The following week few students met me at the street and wanted me to present at a meeting at the neighbouring school. When I attended the meeting, the senior students told me that they suspect that I was the cause for their arrest as I had told my father all the details about them and the contents of the discussion we had. When I kept silent, the boys beat me for passing information to my father and threatened that they would hurt my father and me if I ever attempt to pass information against them to my father in the future. I was in a dilemma in deciding whether I should tell this to my father or not as I feared that I would take risk of getting my father or me hurt if I failed to tell my father.

All around the college the students were talking about me and avoid talking to me. Once again few senior students approached me and wanted me to attend the meeting on the same premises where I was beaten before. The students told me that if I failed to attend they would suspect that I had told my father about them. I attended that meeting and during the discussion they spoke about taking the students on a trip to Rajshahi where we would be staying in a maddrasse school following lectures from their senior members. They said that this matter should be kept secret and if any one of us failed to adhere to the orders that student would be dealt with severely. The senior students told me that if I told my father about their plans I would be forcibly taken to Assam and would never be permitted to return home. As they had already beaten me before I never wish to go through it again. We were scheduled to leave on a private bus the following month after the examination. I feared to travel without my father’s knowledge and my father noticing my behaviour asked me whether I wished to tell him anything which bothered me. I told my father everything including the threat and the beatings that I received. He became very angry and reprimanded me for hiding from him and warned me that I could be taken away permanently for military training as they needed more youths to join them.

He took me to India to meet one of his colleagues who promised me join me in once of the [training institution] so that I could complete my course and end up as a fully fledged [security] officer to work for the Bangladesh government. My father asked me to be secret about this trip and never to speak to anyone about our plans. When we went to India the youths found out from the locals that my father and I were missing. The local Moulana contacted my mother asking where we were. She told him that I had visited another district for work related matter and that I had accompanied him. My father was shocked to learn from my mother that some unknown men had telephoned her stating that they were aware that my father and I were in India and that my father was planning to join me at the [training institution] in India. They threatened that my father and I could be killed unless we returned back to Bangladesh immediately. They said that their men in India would take me away if I stayed in India. Hearing this my father brought me home back to Bangladesh immediately from India stating that he had travelled to India many times in search of terrorists from Bangladesh working for JeI and ICS. He said that the Indian government would not protect us if we were abducted in India as we are Bangladesh. He said that the Indian authorities are aware that I had been arresting and escorting Bangladeshi terrorists from India back to Bangladesh.

When we arrived back in Bangladesh my father feared that the fanatic ICS youths could hurt us and made me stay indoors for weeks till he made plans to send me out of the country. My father couldn’t give me protection as he expected as I started to receive threatening calls from these youths who wanted me to go along with them. My father along with the senior [officers] went in search of these youths in order to stop them from threatening me. Many youths were arrested during these raids. The police officers were visiting the schools and colleges in search of these youths. For few months I never received any calls. My father still ordered me to be careful as these terrorists could stay in sleeping cells till they planned a major attack. My father was informed by the other [officers] that they had received information from terrorists that they planned to kill my father for negotiating with the Indian authorities to crack down on JeI and ICS sleeping cells in Assam and Jharkhand District in India. The officers told my father that they also had received death threats likewise and that I should be careful. My father had to work along with other officers in search of these terrorists before they attacked or bombed civilian areas. While my father was away, a group of five men arrived home and took me forcibly by a truck to Rajshahi. I was kept in a private residence close to the Indian Bangladesh border. The men told me that they had been asked to bring me to their camps in Assam in India where I would be trained as an ICS militant and would be sent to [another country] where I would further trained with the use of military armaments so that I could work along with Pakistani militants to fight in different parts of the country. They said they were aware that I went to India to join the [training institution]. They said that I would not be able to return back home in the future and that my father would be killed. I was kept away from any contact with outsiders in the house for nearly 5 months during these times I was brainwashed to the extent of making me one of them. They were stating that Bangladesh should become a Muslim country and to fight along with Pakistan to create greater Bangladesh by including Assam and Jharkhand from Indian province. They further said that they would work along with Pakistan to make this country with nuclear capability so that our Muslims in India could be saved and protected. I was not interested in any of these ideas was praying hard my father should release me before I was taken out of the country.

When my father released me I came to know that my father negotiated with the terrorist groups for my release through some [officers] who advised my father to resign from his job. The terrorists had demanded that if my father retired from his position as a [senior security official] and sent me out of the country they would release me. The terrorists before releasing me warned me that if I identified any of their men or senior students to the police officers or to my father I could be shot and killed. They told me that if I returned back to Bangladesh I had to join them and support them failing which they would kill me. The terrorists told me that they receive information from other police officers about my father’s whereabouts and the police officers work for them. They threatened that if I attempted to leak any information about their threat to any one or to the public, my father and I would be killed. When I was brought to Dhaka and was handed over to the police officers, the police officers told me that they would not be able to protect me, as their children are abducted and killed by these terrorists. They wanted me to flee from the country before I could take away once again. They said that the terrorists are spread around Bangladesh and India and it would not be possible for me to escape from these terrorists unless I fled to the West. They said that they had to negotiate with the terrorists for my release and they specially demanded that my father retired from the services and I should not join the army or police force. When I met my father he was relieved and I realised how my family loved me and missed me so much. My father told me that he had enough problems from the terrorists and he was not at all sorry for resigning from his prestigious job especially if he could save me from these terrorists. He told me that Bangladesh has become a safe haven for terrorists and the Muslim radicals will never stop taking away more youths for military training to fight for their religion.

When I got the visa I left the country with the hope of not returning back to Bangladesh. I was feeling homesick that my father told me not return back to Bangladesh till he advised me. I was studying hard till I realised that my brother is having problems from the terrorists who demand money constantly knowing that he is [an occupation]. My father wanted me to study hard and apply for permanent resident status that I couldn’t concentrate as I expected. When I heard that my brother too was planning to leave the country, I decided to apply for protection. I had no other choice but to apply for protection because I couldn’t complete my studies as a plan too. When I asked my father whether I could return back to tell me that situation is much worse than it was before and if I returned back I could be taken away from the family. Many youths had joined the ICS when I could be taken away soon. My father advised me to apply for protection as soon as I could. I had financial difficulties and had to wait to my father arranged money for me to apply for protection visa. I fear to go back to Bangladesh.

3.The delegate refused to grant the visa and the applicant applied for review.

4.The Tribunal hearing was conducted on 8 August 2018 with the assistance of a NAATI professional interpreter (previously known as NAATI level 3 interpreter) in the Bengali and English languages. The Tribunal confirmed with the applicant that he was well enough to continue and that he wanted to continue with the hearing and also confirmed that he understood what had been said once it had been interpreted to him and told him that if did not understand, then to raise that immediately.   

5.The applicant confirmed that the application form had been completed with the help of his lawyer who had translated the applicant’s answers into English and that the answers were correct. He also stated that the lawyer had read back his statement, it was correct and he did not want to change anything. 

6.The applicant stated he had lived in [an address in] Dhaka for 8-9 years. He stated he was studying [a degree] from 3 or 4 months after April 2004 at [a] University. He also stated he was admitted into [his degree] at the beginning of 2005 and left Bangladesh in 2006. The applicant agreed that the [University] had [number] students but stated he was at [one of the] campus.

7.The applicant stated that his father was formerly the [security senior official] for [District 1]. The Tribunal put to him that it understood that the [different departments] were separate. He stated his father was the head of [one department].

8.The applicant said he came to Australia because he had been abducted for four months in November/December 2005. He said he obtained a student visa that ceased in 2013 and after that he had lodged an application for [another] visa in December 2014.

9.When asked if he had been anywhere other than Australia, the applicant stated he went to India in July 2005.

10.The applicant stated that many students were involved with Chhatra Shibir, he had heard their extreme views and had told his father. He stated once there was a police raid and he saw machetes. He stated a few students were taken into police custody including him but when the police heard about his father and address they released him and the others students thought he had informed. He stated after a week the Chhatra Shibir students assaulted him and also proposed that he go outside Dakar with them. After 8 or 9 days he informed his father who became angry. He stated after some time he and his father went to India but while there, his mother received threatening phone calls and they returned. He stated he was also threatened while his father investigated a bomb incident and for two weeks he was sent to his aunt’s house but he was also threatened there. He then returned home and his father told him to go to their village home but while going they probably followed him from his house and abducted him near the bus stop.

11.The applicant stated he attended lectures by Chhatra Shibir in June 2005. The Tribunal put to him that he would have started his course in September 2004. He agreed and stated he started attending Chhatra Shibir lectures in June 2005. When asked why he went he stated it was just the beginning and he wanted to know. He also stated that most students participated because if they didn’t, other students would think they were totally separate from them. He stated Chhatra Shibir also supported students. The Tribunal again put to him that it didn’t understand why he was attending their lectures given that there were many people at his university, Bangladesh had many political parties and it seemed strange for him to gravitate towards Chhatra Shibir. The Tribunal also put to him that in his statement he had also said that most of the college students were aware of what his father did. He stated the group of students he was with went so he could not remain separate from them. The Tribunal put to him that when the department asked him why he went to the lectures he had told them his three friends went. He agreed and stated they were apparently Chhatra Shibir members but he had not asked them directly. When asked why he hadn’t said that earlier he stated he was talking in general terms.

12.The applicant stated he went to 4 to 6 Chhatra Shibir meetings. He stated Chhatra Shibir talked about Sharia law and agreed that they also talked about Jamaat e Islami. When asked what was Jammat e Islami’s reaction to the International Crimes Tribunal (ICT), he stated he did not know but could express his own feeling. When asked if Chhatra Shibir ever mentioned it and what he thought their reaction would be, he stated they discussed how to make an Islamic State. He also questioned whether there was a relationship between Jamaat e Islami and the ICT and stated as far as he understood, the ICT was for war crimes. The Tribunal put to him that 5 JI leaders had been executed after being convicted of war crimes by the ICT. The Tribunal also put to him that if the student wing had been giving talks then it would imagine that it would say what had happened to the JI leaders. He stated the student wing recruited students and motivated them to obtain an Islamic state. He also stated a lot of people in the country were pleased with the convictions.

13.The applicant confirmed that when the police officers arrested the students, he too was present. The Tribunal put to him that he told the Department of Immigration at interview that he was not present. He stated the police also captured him but after hearing his father’s name they released him.

14.The Tribunal asked him where he went after this incident and he said he went home. When it was put to him that in his statement he said his father sent him to India, he said that happened in July 2005. The Tribunal put to him that in his protection visa application he said he was in India in October 2004. He stated he could not remember.

15.The applicant stated the last meeting was somewhere outside Dakar. The Tribunal put to him that at Departmental interview he told them he didn’t go to that second meeting. He stated he went to the last one. The Tribunal put to him that he told the department that he had only gone to one meeting. He stated that when they collected money (or did a hat collection) that was similar to a meeting.

16.The Tribunal put to him that he had said that at one meeting all the students were arrested and that the following week he attended another meeting and they threatened him. He stated there was a time difference of one week between two meetings and they thought he was the informer and he was assaulted. He stated the second meeting took place outside Dakar [where] he was assaulted and a week after that he informed his father that he had been assaulted.

17.The Tribunal put to him that he said he had been attending meetings in 2005 however he went to India once in October 2004 which was before he said his father took him to India because he was attending the meetings in 2005. He stated in 2004 he went to India for medical treatment.

18.The Tribunal also put to him that he had stated that he was abducted on his way to the bus terminal but in his statement he said five men arrived home and took him. He stated they followed him from his home and abducted him afterwards.

19.The applicant stated he applied for a protection visa nine years after he arrived in Australia because before that, he did not require protection since he had other visas. The Tribunal put to him that his student visa ceased in 2012 and he had still not applied for a protection visa application. He stated that was because he applied for [another] visa.

20.The Tribunal put to him it was finding it difficult to understand why someone who said that they had been raised in a moderate family, whose father was [a security official] and who he said everyone knew was a [security official] would go to Chhatra Shibir meetings. The Tribunal also put to him that in his statement he said that he was at the meeting where police had arrested students but when the Department of Immigration asked him the same question he said he was not there, that he told the Department that he was abducted on his way to the bus terminal in a rickshaw however in his statement he said five men arrived home and took him. He stated he did not say he was abducted from his home but that they arrived at his home. The Tribunal also put to him that he said he was at the meeting outside Dakar in 2005 and that after that he went to India but in his protection visa application he said he was in India in October 2004. He stated they followed him from home towards the bus stop and probably the lawyer misunderstood. He also stated in 2004 he had gone to India for medical treatment and in 2005 he had entered India with his father but not via the airport.

21.The Tribunal also put to him that there was a delay in his applying for a protection visa after he arrived in Australia. The applicant stated when his visa expired and he had no other visa he had applied for protection. The Tribunal also put to him that it was not sure whether there was a [senior security official] for [District 1] because [the area] was directly under [another authority]. The Tribunal also put to him that if it been attending Chhatra Shibir lectures they may have indicated their response to the International Crimes Tribunal.

22.The applicant stated that the [authority] controlled all [the] branches and he did not know the exact designation of his father’s job. He also stated there were only [number] students on his campus. The Tribunal put to him that there would be enough willing Chhatra Shibir participants as opposed to unwilling participants such as himself. He also stated the students didn’t initially know what his father was doing but became aware. He also stated he lived in [a] complex which was proof his father worked for [the department]. He also stated he went to the Chhatra Shibir meetings with his friends and the general perception was if people went they may get some concession or something for free.

23.The Tribunal put to him that his submission had suggested there were problems with the interpreter at the departmental interview. He stated his meanings had been cut. The Tribunal put to him that it had listened to the Departmental interview recording where he had been asked if he understood the interpreter and had said yes. He stated he shouldn’t have received a negative outcome and there may have been a misunderstanding and he had not emphasised the correct points. He also stated that the Tribunal may not have understood the Bangladeshi culture especially in relation to Chhatra Shibir and the way it operated. He also stated Chhatra Shibir would not explain a negative outcome in a meeting.

24.The applicant stated that one of the colleagues of his father’s wife had been executed.

25.At the hearing, the Tribunal also received the following:

Mentally I was shocked (at the Department’s decision) I notified the matter to my lawyer who helped me lodge the protection application and suggest me to appeal at AAT after he examined the notice of refusal. As I understand through the conversation with my lawyer I believe I simply wasn’t able to convey my message to honourable case officer properly or wasn’t able to emphasise on right information. And there is other fact as well while translating meaning gets cut and I was having hard time making the honourable case officer understand the real vengeance full political/social situation from my side due to my limited knowledge. Hence I am trying in written about some fact mentioned in my refusal notice.

On my refusal notice under findings of fact on the religion section respectable case officer mentioned that during my abduction my abductor accused me for not being strict Sharia law follower. He didn’t assess my religious basis claim further because he stated I didn’t claim so. But the thing is during my abduction which lasted approximately four months I was tortured, beaten, kicked alongside mental torture numerous and uncountable times which I mentioned in my interview. It is a true fact and also accepted by the case officer. Many times I have been beaten for my liberal belief about religion too. I grow into a targeted person during that period. Evidently they have threatened me abuse me physically for my belief I was sure I would have been executed after the so-called negotiation period, but police break in and stop that to happen. It is a very rare case to come alive out of extremist abduction.

Targeted killing in Bangladesh is common in recent years. They do so not because the person is famous or important only at also to make a statement or from the old grudge just to retaliate against whoever not follow their ideology…

On my refusal notice, respected case officer stated he believed that since 2006 me or any of my family member doesn’t receive any reasonable threat

Here is some fact to justify my claim

In my interview I stated that my father was a leading [officer] for the serial bomb blast case which took place [in] August 2005 across Bangladesh, two months earlier than my abduction. Now various incident leading one to another make me a target to make statement for the extremist and to do so they evidently abduct me, only reason they didn’t execute me because they have been lured through negotiation and police’s timely intervene for rescue.

[Upon] his retire from [the industry] he is in actually never could stop working because he had to help me and my [sister] to stay abroad and stay safe far from extremist, he had to bear our expenses. And the only way to do so to have a steady income source. With career expanding about four decades in law enforcement where he also worked in various [institutions] includes the largest [training institution] only things he knows is using law against criminal and bring them to justice. Which straight way put him under light and still make him a threat to criminals and extremist. Which we realised last year (2017) December.

When my father had a mild stroke and was hospitalised for month, my [sister] visited Dhaka after eight years taking known risk about her life, she was very desperate see my father despite my [brother’s] and dad’s strong warning. And to make the nightmare true she was attacked by acid. She was riding back home by rickshaw, the hood of rickshaw was on to make a shade to hide. The attacker came from behind and throw the acid, because of the hood her face and upper body was safe but her [body was injured] as well [the] rickshaw puller. After 5 to 6 day treatment she was forced to fly to [another country] by my brother.

Another accident took place on mid-2017 where the private car of my [brother] was set to fire in the middle of the night. We don’t know who was involved but after my sister’s incident we guess that there could be relation between this two incident. At these point we strongly believe that time duration is not making things calm, when you are targeted person to make a statement extremist we will do everything on their power. They will use their peoples connections and technology which is evident in recent targeted killing.

Before I was abducted for couple of weeks (approximately) I was in a safe home of my aunt hiding from everything but somehow the extremist find her number and location and threatened her and her family which forced me to leave her place for her safety. All these I mentioned in my interview.

The reason I pulled this matter up again is, we still don’t know how they find out the number of my aunt and location, the whole matter was very secretive and was handled by my dad. Without the help from proper authorities no one can have acquired this information. Which suggests that they have member in authority.

So it is easy estimated that after narrating all of the incident above, all my family members are still under threat, whether it’s because of my father’s activity or any member simply grow into a target of extremists so that they can make a statement.

Earlier I have mentioned that my father was a leading [security] officer of the serial bomb blast which I also mentioned in my interview, following up this investigation two Islamic extremist groups was banned named JMB (jamaat ul majahi) and HJI (harkat-ul-jihad) by Bangladesh government. A senior [security] officer [who] is involved several high profile chase against these two groups was also threatened during that time. He was my father’s work colleague. Time passed everyone thought nothing will happen but he wasn’t that lucky, in 2016 my wife was killed by extremist. To make him weaken and to revenge extremist kill his wife. So from my perspective I am still in wanted list as a target killing object for extremist no matter where I go whenever I go. Because that’s the point extremist try to make when they do target killing.

26.Following the hearing, the Tribunal sent the following letter:

The particulars of the information are:

Whether you attended Chhatra Shibir meetings after initially attending one meeting

At the interview on 21 July 2015 between you and the Department the following
conversation occurred:
Q. And did you go? (to the second meeting)
A. No.
Q. And why didn’t you go? .. You didn’t go why did you not go?
A. Because they had some associates and I saw they were carrying arms, a big
knife.
Q. So you felt unsafe going to the meeting, is that right…?
A. In this meeting I went to the initial meeting but after I was called again to go
somewhere I didn’t go to the next one…
Q. So, after the initial meeting, you saw these three people associating with
people carrying weapons and for that reason you didn’t go to the next
meeting, is that correct?
A. Correct.
Q. The second meeting was supposed to take place outside Dhaka a bit far
away from Dhaka. And you didn’t go to that one?
A. No… They were asking me to go to a meeting outside Dhaka but I didn’t in
fact go. Then I mentioned this incident, seeing the arms, to my father.
Q. This meeting outside Dhaka that they wanted you to attend - when did that
occur?
A. May 2005...
Q. And did your father do anything about that...?
A. They sent two trucks of police to raid them so that if they can catch them red handed,
that is proof…
Q. Did they catch them?
A. In the meeting the police beat them with sticks.
Q. And did they do anything else to these people?
A. I don’t know anything after that.

This is relevant because:
At hearing on 8 August 2018 you stated that you went to 4 to 6 meetings and
that the second meeting took place outside Dhaka, and you were assaulted
and that after that you informed your father you had been assaulted. The
Tribunal may find your answers inconsistent. If the Tribunal finds your
answers inconsistent, then, subject to your comments, it would affirm the
decision under review.

You also stated at hearing that you were present when the police officers
arrested all the students. The Tribunal may find your answers inconsistent. If
the Tribunal finds your answers inconsistent, then, subject to your comments,
it would affirm the decision under review.

You also stated at hearing that, after the incident where they were arrested,
you were sent to India; however, your protection visa application states that
you went to India in October 2004 which is before you said you were
attending meetings in 2005. The Tribunal may find your answers
inconsistent. If the Tribunal finds your answers inconsistent, then, subject to
your comments, it would affirm the decision under review.

Plausibility of you attending Chhatra Shibir meetings
At the interview on 21 July 2015 between you and the Department of Immigration
you stated you were raised in a moderate family, and that your mentality was
moderate. You also stated you understood the interpreter.
This is relevant because you also stated in your statement that everyone knew that
your father was a [security official]. Accordingly, subject to your comments, the Tribunal may not accept it plausible that, given your background, you would be attending Chhatra Shibir meetings in the claimed circumstances. If the Tribunal finds this, then, subject to your comments, the Tribunal would affirm the decision under review.

1. The Tribunal received a lengthy submission stating as follows:

   Firstly I like to mention that currently I am not in a sound mental condition. I am in distress and trauma, I have no idea what I am talking about, I can’t sleep in fear, my whole body shakes all the time, any mental distress help my temperature to rise. At the time of the interview I haven’t eat anything till then and I was shaking, the honourable member noticed that and asked me if I want to postpone the interview but to honour your request for interview I just go with it. Whatever I have said in my interview was purely a reflection of my memory about incidents took place 12 years ago involving me. Being [an age] year old at the time of incident I was merely aware of the process of bureaucracy and how it works in the terminology. After that I have gone through highly stressful time of my life, was subject to abduction and live on a hateful life on the top I am not that much educated as well. Then this interview took place. After I got the email from AAT for invitation to comment I realise something went wrong. I called my father and notified about the letter, he answered it’s ok you don’t supposed to know the part which you wasn’t involved with 12 years ago as you speaking I understand your word is all over the place probably you wasn’t able to convey the message properly. Then my father request my friend [to] listen to the hearing audio which I requested from AAT, after listening to the audio with the help of my friend I realise my father is correct, all the answer for the misunderstanding is right there in the audio. If someone who speaks both English and Bengali listen to that and try to understand the collaboration and sequence I was talking then he will understand I was speaking the truth the whole truth all the time and certainly consistent in my word. Here I mention that the audio CD I have received from AAT doesn’t contain the full interview of mine but almost the main portion of my interview. So I am answering based on that. It is understood for me that because of my way of speaking (due to distress and trauma) it makes the work way way hard to translate, so it is me who is responsible for every mistake and misunderstanding…

   28.The Tribunal also received a letter from [a] Hospital stating that [in] November 2017 the applicant’s sister was admitted to hospital. Also provided was a photocopy of a page from [a newspaper] and a further photocopy with a article entitled “[deleted].”

   Country information

   29.[Details deleted].

   30.According to DFAT Country Information Report Bangladesh 2 February 2018:

   Jamaat-e-Islami (JI) is the largest Islamist party in Bangladesh, with historical strongholds in Rajshahi (northern Bangladesh) and Chittagong, the country’s second largest city. The party is committed to the creation of an Islamic state adhering to sharia (Islamic law), and to the removal of ‘un-Islamic’ laws and practices. The Islami Chhatra Shibir (ICS) is the JI’s student wing. It is one of the largest Islamist student organisations in South Asia. International sources report that it is one of the strongest student fronts in the Universities of Chittagong, Rajshahi, and Jahangirnagar. Local academic sources describe the ICS as having a notorious reputation for violence.

   Government practices under the AL have severely restricted the JI’s ability to conduct activities on a day-to-day basis. In August 2013, the High Court deregistered JI as a political party because it judged that provisions in JI’s charter preventing women and non-Muslims from holding political or bureaucratic posts were inconsistent with the Constitution.

   Five JI leaders have been executed after being convicted of war crimes by the ICT (see International Crimes Tribunal (ICT) and Death Penalty). Unsurprisingly, JI has vehemently opposed the ICT, which it has characterised as an attack on Islam and on Bangladesh’s identity as a Muslim country. JI has periodically held major strikes and violent demonstrations across the country, particularly against the ICT, which have resulted in numerous deaths (mainly at the hands of security forces) and large-scale property damage. In response to these demonstrations, and in response to militant attacks, authorities have arrested thousands of JI members in counter-terrorism operations, including through enforced disappearances (see Enforced or Involuntary Disappearances).

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

   DFAT assesses that senior JI leaders face a high risk of arrest and legal sanction. Active JI members and ICS members who continue to engage in political activities and demonstrations also face a high risk of arrest. Ordinary JI and ICS members who do not engage in political activities and demonstrations face a low risk of arrest, although this may vary according to location.

   CRITERIA FOR A PROTECTION VISA

   31.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, he or she 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.

   32.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 because the person is a refugee.

   33.A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

   34.Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

   35.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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

   36.In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   37.The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s5J(1) in Bangladesh and if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.

   38.In his application, the applicant stated that his father was a retired [senior security official] of [a department], that at college many students repeatedly questioned him as to whether he would follow in his father’s footsteps, that students from ICS frequently ordered other students to listen to their lectures, that he told his father of this and that during one of the meetings the police officers arrested the students (including the applicant but then released him immediately) and that when he attended a further meeting at the neighbouring school, he was beaten for passing information on to his father and threatened not to do so again. He also stated he attended a further meeting in which they talked about a trip to Rajshahi but he told his father everything. His father then took him to India. He stated that when he and his father were in India, his mother received phone calls that threatened that if the applicant and his father did not return to Bangladesh immediately, they would be killed. The applicant also stated that on his return, he again received threatening phone calls and that while his father was away, a group of five men arrived home and took him forcibly by a truck to Rajshahi for nearly 5 months and when his father released him, he learnt that the terrorists had demanded that this father retire and he was told to flee to the west.

   39.However, the Tribunal has a number of concerns with the applicant’s evidence. Firstly, and as put to the applicant at hearing, the Tribunal doubts it is plausible that the applicant, who stated that he is the son of a former [security official] for [District 1] and that he was repeatedly questioned at college by students as to whether he would follow in his father’s footsteps and who also told the Department of Immigration at interview that he was raised in a moderate family and had moderate views, would be or would feel coerced by others to attend Chhatra Shibir lectures on campus. Adding to the Tribunal’s doubts is evidence before the Tribunal that suggests that organisationally, the district (or range) [security officials] in Bangladesh are separate from [another department]. [Details deleted]. When this was put to the applicant at hearing, he stated that he did not know the exact designation of his father’s job however it is difficult to accept that given that it was the applicant who identified his father’s title in the first place.

   40.As put to the applicant at hearing, the Tribunal considers there would be enough willing Chhatra Shibir participants as opposed to unwilling participants on campus and the Tribunal is not persuaded that the applicant himself would have wanted to attend Chhatra Shibir meetings in June 2005 given that he had been on campus for some time (having started in September 2004), that there are many political parties (with student wings) in Bangladesh and the applicant claims to hold moderate views. In addition, the Tribunal is not satisfied that Chhatra Shibir would either encourage the applicant to initially attend when he had moderate views, had been on campus for some time and it was common knowledge that he was the son of a [senior official]. Similarly, the Tribunal is not persuaded that Chhatra Shibir would continue to insist that the applicant attend when they suspected him of talking to the police. When this was put to the applicant at hearing, he stated that the students didn’t initially know what his father was doing but became aware, that he went to the Chhatra Shibir meetings with his friends and the general perception was if people went they may get some concession or something for free, however this is inconsistent with his written statement which was that many college students knew what his father did. 

   41.In addition to the above concerns, the Tribunal finds that the applicant has provided inconsistent evidence in relation to how many meetings he attended and if he attended a meeting in which he and other students were detained. The Tribunal finds that the applicant told the department at interview that he did not go to a second meeting because he saw people carrying weapons but at hearing he stated that he went to 4 to 6 meetings and that the second meeting took place outside Dhaka. When this was put to the applicant at hearing, he tried to explain the inconsistency by stating that he went to the last meeting and that they collected money (or did a hat collection) and that was similar to a meeting. After hearing he also stated that he had not counted the hat collecting meetings at Departmental interview, however given the applicant’s answers at Departmental interview about the number of meetings he attended, the Tribunal finds that the applicant is simply making up his explanations about attending hat collection meetings as opposed to meetings and does not accept he is recounting instances that have occurred. The Tribunal also finds that in his statement he stated that during one of the meetings the police officers arrested all of the students and that he was taken for questioning but then released and at hearing he confirmed that when the police arrested the students, he too was present but at departmental interview on 21 July 2015 the applicant stated that he did not attend a second Chhatra Shibir meeting because some associates were carrying arms and that after the initial meeting, he did not go to the next meeting which was held outside Dhaka and that his father sent trucks of police to raid that meeting. When this was put to the applicant at hearing, he did not address the inconsistency and simply stated that they captured him but after hearing his father’s name released him. After hearing, and in order to address the inconsistency, the applicant suggested that at hearing he was trying to describe another incident in which the police came and let him go and detained some of the students for questioning only, however the Tribunal finds that the applicant has merely attempted to again describe the incident already mentioned in his written statement (which was that police turned up to a meeting in Dhaka where other students were arrested and he too was questioned). As previously stated, if in fact such an incident occurred, then the Tribunal does not accept that the applicant would have told the Department at interview that he was not there.   

   42.In addition, the Tribunal finds that at hearing the applicant stated that after the incident where they were arrested, he was sent to India; however, the applicant’s protection visa application states that he went to India once in October 2004 which is before he said he first attended a Chhatra Shibir meeting in June 2005. When this was put to the applicant at hearing, he stated that he went to India for medical treatment in 2004 and that in 2005 he entered India with his father but not via the airport however when asked in the protection visa application have you travelled to any country other than Australia in the last 30 years he has only detailed the one trip to India in October 2004. After hearing the applicant stated that his father advised him that in a first world country like Australia where rules are followed strictly, any activity which is not authorised can cause the denial of a visa. However, the Tribunal finds that any unauthorised trip to India could have been explained by the applicant in his protection visa application. In addition, the applicant initially stated at hearing that his protection visa application was correct. Because that application provides the applicant’s earliest answer to the question concerning his travel to any country other than Australia and because of the mounting credibility concerns with the applicant’s evidence, then the Tribunal prefers the applicant’s evidence concerning his single trip to India in his protection visa application form as opposed to his subsequent evidence that he also travelled to India in 2005.

   43.The Tribunal also finds that the applicant provided inconsistent evidence in relation to where he was kidnapped, that is in his statement he said that a group of five men arrived home and took him forcibly by a truck to Rajshahi but at hearing he stated he was probably followed from his house and abducted near the bus stop. The Tribunal does not accept that if five men had arrived at the applicant’s home and kidnapped him, that he would at a later stage state that he was abducted near the bus stop. The changing nature of the applicant’s evidence is such that the Tribunal does not believe him.

   44.Accordingly, while the Tribunal accepts that Chhatra Shibir would not have talked about Jammat e Islami’s reaction to the International Crimes Tribunal in 2005, if the applicant had been exposed to Chhatra Shibir lectures, then he may have been able to judge their reaction to the International Crimes Tribunal which he was unable to do so at hearing. In addition, and for all of the reasons given above, the Tribunal does not accept that the applicant’s father is a retired [senior security official], or that you can tell [who they are] based on their address. The Tribunal does not accept that the applicant listened to any Chhatra Shibir lectures, or that he then told his father and that during one of the meetings, police officers arrested the students (including the applicant but then released him) or that when he attended a further meeting at the neighbouring school, the applicant was beaten for passing information onto his father. Neither does it accept that the applicant attended any further meetings, or that his father then took him to India and that when they were in India, the applicant’s mother received threatening phone calls and that the applicant and his father returned. Neither does it accept that the applicant again received threatening phone calls, was kidnapped or that when he was released, he learnt that the terrorists had demanded that this father retire and he was told to flee to the west. While the applicant has stated that his sister and brother have been attacked and his family threatened, the Tribunal does not believe him. In reaching this conclusion, the Tribunal has considered the two documents received after hearing, that is the letter from [the] Hospital stating that [in] November 2017 [name deleted] was admitted with injuries and a photocopy of pages from [a newspaper] dated [in] August 2018 as well as a separate page with an article headed “[deleted]” which allegedly relates to the attack on his brother. However, in the context of the significant, cumulative and overwhelming concerns with the applicant’s credibility detailed above, the Tribunal is not persuaded that the applicant or any of his family are the object for extremists or that these are genuine documents or that their contents are true.

   45.In reaching these conclusions, the Tribunal has considered the applicant’s mental state.  Initially at hearing, the applicant presented as agitated and the Tribunal was careful to talk to him and ask him what was wrong. He stated he had suffered from a fever that had passed but he was still taking medication and when asked, he confirmed that he wished to proceed with the hearing. In addition, the Tribunal did not detect any further problems in relation to the applicant’s demeanour at hearing.  After hearing, the applicant submitted that he was not in a sound mental condition, could not sleep, had body shakes, distress and trauma and had no idea what he was talking about. He also stated that the incidents took place 12 years ago and he may not have been able to convey his message properly.  No medical evidence was provided to support this submission.

   46.As stated, the applicant only raised his concerns about mental distress after and not at the hearing. Given this, and given the lack of medical evidence in support, while the Tribunal accepts that giving evidence is stressful, the Tribunal does not accept that the applicant’s stress or state of mind was such that it impaired his ability to give evidence. 

   47.The Tribunal has also carefully considered whether the applicant’s evidence was inconsistent because of his mental distress. However, taking into account the Tribunal’s findings that it does not accept that the applicant would have attended Chhatra Shibir meetings or that Chhatra Shibir would have encouraged him to continue to attend, the Tribunal is satisfied that the inconsistencies that have arisen over the course of this application are because the applicant has not been talking about events that have occurred but has been making up his evidence as he goes along.  The Tribunal has also considered whether it is satisfied that the interpreter at hearing was adequate since after the hearing, the applicant sought to provide a somewhat unintelligible commentary on the hearing (which did not necessarily suggest that the interpretation was wrong) that sought to explain what he really meant.  The interpreter used at hearing had the highest Australian accreditation level and the applicant confirmed at hearing that he understood the interpreter and did not raise any interpretation issues during the hearing. In the Tribunal’s view, there were no interpretation issues at hearing and the applicant’s post hearing commentary was his attempt to try to reconcile the inconsistencies which the Tribunal has already dealt with.  While the applicant also stated in that submission that the audio CD he received from the AAT did not contain the full interview but almost the main portion, given the Tribunal’s concerns with the applicant’s credibility the Tribunal does not concede that and in any event, there is and was nothing to stop the applicant from seeking the full interview.

   48.The Tribunal has also considered whether there were interpreter problems at departmental interview however having listened to the interview, the Tribunal is satisfied that the applicant stated at that interview that he understood the interpreter and the interview itself flowed in a way that is consistent with someone who understood the interpreter and who in turn was understood by the interpreter. Accordingly, the Tribunal rejects the claim that there were interpreter problems at interview or that his meanings were cut.

   49.For the reasons given above, the Tribunal does not accept that there is a real chance that the applicant will be persecuted for any refugee reason including religion if he returns to Bangladesh now or in the reasonably foreseeable future.

   50.The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   51.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal has rejected the applicant's claims that he is or has attended Chhatra Shibir meetings or that he is wanted by them. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

   DECISION

   53.The Tribunal affirms the decision not to grant the applicant a protection visa.

   Angela Cranston
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation
   …
   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)that is not inconsistent with Article 7 of the Covenant; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)that is not inconsistent with Article 7 of the Covenant; or

   (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)for the purpose of intimidating or coercing the person or a third person; or

   (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   receiving country,  in relation to a non-citizen, means:

   (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5J Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:    For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:    For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K  Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L  Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA  Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   ..

   36Protection visas – criteria provided for by this Act

   …

   (2A)A non‑citizen will suffer significant harm if:

   (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)    the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …