1601180 (Refugee)

1601180 (Refugee) [2018] AATA 3258 (6 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1601180
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Tania Flood
DATE:6 July 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 06 July 2018 at 12:22pm

CATCHWORDS

Refugee – Protection Visa – Bangladesh – Political opinion – Supporter of Bangladesh Nationalist Party (BNP) – Effective state protection not available – Fear of persecution from both AL activists and state agents – Applied for protection visa in [Country 2] and was refused – Low level of political engagement with the BNP party– Credibility concerns – Delay in lodging protection visa application in Australia – Decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 January 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Bangladesh, applied for the visa on 4 June 2015. The delegate refused to grant the visa on 5 January 2016.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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
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
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Bangladesh for reason of his race, religion, nationality, membership of a particular social group or political opinion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
In his application for a Protection visa the applicant claims:
He left Bangladesh to study in [Country 1] and to escape from Awami League (AL) people who continue to threaten him.
If he returns to Bangladesh he will be targeted and seriously harmed because of his political opinion and affiliation with the Bangladesh Nationalist Party (BNP).
When he was studying in [Country 2] some criminals burned his family’s [equipment] during a demonstration organised by Jamaat [in] March 2013. His father lodged a General Diary over the incident and the police and local AL leaders insisted that they mention Jamaat as the perpetrators of the incident. The AL leaders warned his father that if he did not do this they would target his male children for not obeying their orders. The AL know that his family is affiliated with the BNP and so his brothers left Bangladesh.
On his father’s advice he sought protection in [Country 2] in 2013 but his application was refused and he was asked to leave the country. When he returned to Bangladesh he was subjected to an attack. His parents then sent him to [Country 1].
When his parents filed the General Diary in relation to the [equipment] incident they were subjected to humiliation and forced to implicate Jamaat members as being responsible for the [attack]. Because of this his parents did not want to inform the police of the attack he suffered. He cannot get adequate state protection because the present government is led by the AL and the authorities discharge their functions according to their wishes.
The AL is in power and has a network and influence throughout Bangladesh. He cannot relocate within Bangladesh because he will be identified and targeted due to his political opinion and because of his family’s refusal to implicate Jamaat leaders in the [equipment] burning incident.
In a statutory declaration dated 14 October 2015 the applicant provides the following additional information:
His father was a businessman and an active supporter of the BNP. He used to help local area supporters and give them advice. In fact, all his family support the BNP. His father’s cousin, [who] lives next door, is one of the local BNP leaders in their area. His father and uncle used to run meetings and processions and were field workers of the BNP. Because of this he was known as the son of a BNP family.
While studying for his higher secondary certificate [he] was known as a BNP supporter supporting the Jatiobadi Chatra Dal (JCD).
Narayanganj is one of the most dangerous places in Bangladesh. There are many cases of kidnapping, missing persons, murder and threats to life in Narayanganj which especially target BNP leaders, supporters and young members of BNP families. The local AL MP in Narayanganj, Samin Osman, has been involved in 7 murders and the police do nothing to prosecute him because of his political affiliation.
His family owned [an equipment] business in Narayanganj. On 3 March 2013 the [equipment] was burned by people under the protection of Jamaat. His family lodged a General Diary with the police and after that AL leaders tried to force his family to make a case against some persons who supported the BNP. His family refused and from that time on his family were regarded as enemies of the AL. They could no longer run the business. His father told him to stay in [Country 2], he sold the [equipment] and sent his brother to [Country 3] for his safety.
When he had to return to Bangladesh from [Country 2] his family was very worried about him. From [July] to [December] 2013 he lived in Narayanganj and Mirpur at great risk to his life. At that time he supported the BNP and became deeply involved in BNP area programs and activities. As a result he faced many problems and threats. He had to hide and could not move around freely.
[In] August 2013 while outside his home he was attacked by AL cadres and punched in the fact. He was able to run away. For his safety he applied for a student visa in [Country 1]. He went to the house of one of his uncles in Mirpur to hide. After two months he received his visa and went to [Country 1].
When he was due to finish his course in [Country 1] he applied for a [temporary] visa to Australia. He arrived in Australia on 8 March 2015.
Submission to the Department
In a submission to the Department dated 12 October it is submitted that the applicant has a well-founded fear of persecution from both AL activists and state agents for reason of his political opinion – holding and supporting the political ideologies of the BNP. Further, there is no meaningful option of relocation and nor is it reasonable in the circumstances. Also, there is no possibility of the applicant obtaining effective protection from the Bangladesh authorities.
The submission references numerous sources commenting on persecution against opposition party members and activists in Bangladesh published after release of the DFAT Country Information Report of October 2014. Based on those reports it is submitted:
Targeting killing against BNP members and supporters continues in Bangladesh.
The UK, the UN Secretary General’s deputy Oscar Fernandex-Taranco and US Assistant Secretary of State Nisha Desai Biswal and the UN Human Rights Office have expressed deep concern at the ongoing political violence.
The country’s laws and criminal justice delivery system are under serious threat due to the prevalence of extrajudicial killing.
Criminalisation of politics started after the AL reassumed power through the controversial Parliamentary Elections on January 5, 2014.
Hundreds of opposition activists, including from the BNP have been rounded up and arrested across the country.
Security forces carried out abductions, killings and arbitrary arrests, particularly targeting opposition leaders and supporters.
The applicant has already faced past problems in Bangladesh and will be persecuted again if he returns to Bangladesh. Country information indicates that AL members and supporters either with the passive or active support of the Government are able to unleash activities which amount to persecution against persons who exercise or hold an alternative political opinion. It is not necessary for a person to be a member of a political party or other public organisation or that their oppositional views are a matter of public knowledge for a person to be found in need of protection. A person may be regarded as an enemy of the state by virtue of holding and propounding (or being perceived to hold or propound) views which are contrary to the views of the state or its government.
There is clear evidence that the AL and its supporters terrorise their political opponents and their family members even if they are innocent children, especially at the local level.
There is a systematic pattern of torture practiced in Bangladesh by AL members and the authorities and there is a real risk the applicant will be subjected to such treatment.
The submission concludes the following:
The applicant is a National of Bangladesh.
The applicant is outside his country.
The persecutors the applicant fears consider he holds a political opinion against their own due to his actual political opinion and particular social group.
Country information supports the finding that human rights abuses in particular against opposition political supporters and activists continues in Bangladesh.
Country information confirms that AL activists continue to target BNP activists and supporters at both the national and local levels, and in fact the reports indicate that the AL government has started a cleaning program to eliminate BNP activists to strengthen their powerbase.
The applicant reports that he is a supporter of the BNP.
The applicant further reports that he will continue to support and be involved in political activities in Bangladesh if he returns.
Political activists who do not accept the ruling government’s political views face persecution from the authorities.
Independent evidence supports the finding that BNP political activists continue to suffer harm at the hands of the AL supporters and miscreants with active or tacit support of the authorities.
Reports and recent incidents indicate that not only high profile BNP political leaders but also the local level BNP political supporters face serious harm from the AL supporters.
Past decisions of the RRT indicate that there is no place in Bangladesh to which a BNP activist can safely relocate.
Thus the applicant holds a political opinion against the ideologies of his persecutors and therefore faces potentially life threatening harm due to the cumulative reasons of his political opinion and given the current situation in Bangladesh.
Submission to the Tribunal
On 5 June 2018 the applicant’s representative provided links to, and summarises aspects of, more recent country information reports on continuing human rights violations against BNP members and activists including local level members. Based on that information it is submitted that:
Country information confirms that a deeply politicised, dysfunctional criminal justice system is undermining the rule of law and democracy in Bangladesh. In circumstances where a person such as the applicant who has a clear adverse political profile as a BNP activist would not be able to get adequate protection from the authorities.
Country information suggests that Bangladesh’s law enforcement and judicial system is tasked with suppressing the AL government’s political rivals.
Thousands of criminal cases have been lodged against opposition members and activists.
The AL government uses the state machinery to suppress the opposition.
The police are widely perceived as politicised, corrupt and inept.
The UK has voiced its concern and stated that Bangladesh is among 30 countries listed by the UK government that have shown no improvement in matters of human rights.
Political violence has increased in the recent past.
Bangladesh continues to experience political and social unrest since 2015.
Human rights organisation Odhikar opined that political violence continues in Bangladesh and said it has taken on serious proportions across the country.
European community members have raised concerns about the volatile human rights and security in Bangladesh and said the human rights situation in Bangladesh is a matter of deep concern for them. Some members stated that Bangladesh seems to be on a course departing from democracy and leading towards insecurity.
The High Court of Bangladesh has said that criminalisation of the political system is a stumbling block to the development of a robust political culture in Bangladesh.
The practice of summary executions continues in Bangladesh targeting political opponents.
The AL government in Bangladesh continues killing opposition activists perpetuating its power.
Torture is the norm in Bangladesh’s law-enforcement system.
The police and the paramilitary forces, use torture to satisfy political masters.
The ruling AL party and its allies use torture to silence their political opponents.
The security situation in Bangladesh is volatile and can deteriorate quickly with little warning.
Active members of opposition parties and auxiliary organisations who participate in demonstrations face a high risk of arrest and physical violence, both from security forces and ruling party activists.
International and local rights groups concur that enforced and involuntary disappearances occur frequently in Bangladesh and particularly target individuals associated with opposition political parties.
Domestic and international NGOs report that law enforcement agencies routinely use both physical and psychological torture as a tool of interrogation or punishment.
DFAT assesses as highly credible allegations that Bangladeshi law enforcement agencies routinely use torture as a tool of interrogation or punishment.
DFAT assesses that most Bangladeshis and particularly those with connections to opposition parties, would seek to avoid engagement with the police.
Authorities enjoy impunity for serious violations including arbitrary arrests, torture, enforced disappearances, and extrajudicial killings.
Law enforcement authorities continue to arrest opposition activists and kill them summarily.
The government had engaged law enforcement agencies to ‘disappear’ opposition activists and implement extra-judicial executions on a large scale.
Bangladesh’s incumbent government has escalated crack downs on the country’s opposition prior to the general election.
Violations of human rights abuses occur so frequently they are being normalised in society.
The attitudes of the government and law enforcement agencies suggest movement toward an even harsher crackdown against opponents.
The government of Bangladesh has engaged its student wing, the Bangladesh Chhatra League to unleash violence against demonstrators.
It is further submitted that:
The applicant has an active political opinion and has provided corroborative evidence to conform that. Due to his activities and political opinion, particularly in Australia he would be perceived as a person holding (or believed to hold) views antithetic to the government and as a result he may be targeted as an enemy of the state.
The applicant is not an ordinary member of the BNP – he has a political profile. This profile will attract his persecutors to target and harm him to stop his political activities.
Due to his past, present and future political activities the applicant will be identified and seriously harmed in Bangladesh.
Further documents provided to the Tribunal include:
Three translated news reports from Bangladesh sources dated in 2013.
A letter from the BNP Australia dated [July] 2017.
A letter addressed to the Department of Immigration and Border Protection dated [May] 2018 from [a] Registered Psychologist.
TRIBUNAL HEARING
When the applicant appeared before the Tribunal he confirmed he is [an age] year old single male from Narayanganj. He said that before departing Bangladesh he resided at his uncle’s house from [August] to [December] 2013. Prior to that he had been living with his parents in his village. The applicant confirmed that his parents are still living at the same village address but his sisters are married and living with their husbands and both his brothers live in [Country 3]. When asked how long his brothers have been living abroad he said that one left many years ago and the second left after the [equipment] incident referred to in his claims. He said that neither of his brothers have been back to Bangladesh since the [equipment] incident.
The applicant verified that he completed [certain grade] in 2009. He said that he went to [Country 2] in 2011 to pursue further education. When asked what he was doing between completing his school studies and moving to [Country 2] he said that he was involved in Chhatra Dal political activities. He confirmed to the Tribunal that his reason for moving to [Country 2] was purely for educational purposes.

The applicant confirmed that he remained in [Country 2] until 1 July 2013. Further, he confirmed that he was detained for a couple of months before returning to Bangladesh. He explained that his university closed down and he was unable to enrol in another course on time because he didn’t get any support to do so due to the problems which were going on at home. He said he couldn’t fulfil the requirements to honour his visa and that is why he was detained.
The applicant was asked when he applied for a protection visa in [Country 2] and he confirmed it was while he was in detention. He said that he was advised by his family not to return home. He confirmed he applied for the protection visa in April 2013. The Tribunal put it to the applicant that the timing and circumstances of his asylum bid in [Country 2] raise some concerns. Specifically the Tribunal indicated that he was already detained some months before the claimed [equipment] incident occurred and that it appears he was attempting to remain in [Country 2] long before the [equipment] incident occurred. The applicant confirmed that the [equipment] incident was the trigger for his protection visa application. The Tribunal put it to him that an alternative view could be that he had overstayed his visa, was located by immigration officials and detained and that this is when he applied for a protection visa in a bid to remain in [Country 2]. The applicant then stated that he was aware there were avenues to appeal the decision on his protection visa application but he decided to withdraw from the appeal process. He said his family were experiencing difficulties at home and he wanted to support them. He said he thought he would be able to handle the situation. When asked if he had any documentation in relation to his asylum bid in [Country 2] he said he left everything behind in [Country 2].
The applicant confirmed that he has been working as [an occupation] in Australia and that he did similar work while studying in [Country 2].
The applicant was asked about his family’s affiliation with the BNP. He said that his father was a BNP supporter in the local area and his family are recognised as a BNP family. He said that all his relatives are associated with the BNP in some way or another and he was involved with Chhatra Dal from 2009 to 2011. He confirmed his father was not a member of the BNP and held no position in the party. However, he said his father supported his uncle who was a BNP community leader for four or five jurisdictions. He confirmed his uncle held no elected position within the party. When asked if his uncle is still a BNP member he said he is although he is not living a stable life. He said whenever there is political turmoil his uncle has to leave the area.
When asked to describe his father and uncle’s level of political activity he said his father helped his uncle to organise and gather people to join in marches. He said they organised programs and put up posters in the local area. He said that he also participated in these types of activities between 2009 and 2011. When he was with Chhatra Dal he put up posters, banners and helped with communication. He also participated in marches.
The applicant was asked why his family supported the BNP and not the AL. He said he was influenced by his parents and family. He said that he heard the BNP’s policies were good and aimed at progressing the people. He said that in contrast he witnessed how the AL were abusing power and did nothing to progress the people. The Tribunal put it to the applicant that his responses were very general and asked him to elaborate on which aspects of the BNP’s policies particularly appealed to him. He replied that when the BNP was in power they saw major developments. He said that they had a personal relationship with the BNP leaders who would regularly visit them. The applicant was able to speak about the four main principles of the BNP with a reasonable degree of accuracy.
The applicant was asked to explain some of the key causes of conflict between the BNP and the AL. He replied that the AL is after power and will do anything to pursue power. The applicant was asked if anything had happened in the country in recent years to heighten the conflict between the two parties. He said that the AL’s main aim is to weaken the BNP.
The applicant was asked when the next national election will be held and he said it will be in 2019. He said he does not know whether there will be a local BNP candidate at this stage. He said they will only know this closer to the election because if anybody identifies as a candidate they will become entangled in a false case or detained by the AL. He said he does not know what the outcome of the election will be because the BNP’s leader is currently detained and they don’t know whether she will be permitted to run as a candidate in the election.
The applicant was asked whether his family had encountered problems with the AL prior to the claimed [equipment] incident and he said they did not. When asked if he had experienced any harm at the hands of the AL prior to his departure to [Country 2] he said he did not.
The applicant testified that his father operated the [equipment] business from 2008 until the [equipment] was burned. He said his brother was also involved with the physical aspects of running the business. [Details deleted]. Prior to owning this business he said his father worked in [Country 3] in [a certain] industry and when he returned to Bangladesh he also had a [certain business] for a while. He testified that his father has not worked since the incident. He said he remains mostly at home.
The applicant testified that on the day his family’s [equipment] was burned there was a protest in [Town 1] which was organised by Jamaat. He said the [equipment] was operating that day and was torched by the protestors. He confirmed his father was not present and did not witness the event. He said [a person] called to inform his father what had happened.
The applicant testified that his father went to [Town 1] police station to lodge a complaint about the incident. Afterwards he said that AL leaders came to their house with a list of names of opposition people they wanted his father to implicate in the attack. However, he said that thousands of people took part in the protest and his father was unable to identify anybody in what was a random attack. When asked why the AL would go to this trouble given their claimed ability to pervert the course of justice he said the 2014 election was approaching and that a BNP family naming Jamaat people would have given them more ammunition to prosecute their opponents. The applicant confirmed that the report to the police resulted in no further action being taken.
The applicant testified that his father has remained living in the family home since the time of the incident. However, he said he has been mostly homebound. He said that since the [equipment] was burned AL people have been pressuring him to name people on their list but he has refused to do that. As a result, he said his political life is over and he is no longer doing anything. When the Tribunal questioned the likelihood of the AL continuing to apply pressure on his father to do this he said that an election is looming and the AL are therefore trying to cause problems for potential candidates. He said that previously they were watchful of his father but recently the pressure has increased again. He said his father has also been threatened that his sons will be harmed. The Tribunal asked why the AL would threaten to harm him or his brothers when they are aware where his father is living and could easily harm him. He replied that should they kill his father they would not be able to make out their case.
The Tribunal put it to the applicant that it is difficult to accept that he withdrew his protection decision appeal in [Country 2] and returned to Bangladesh given his evidence. He said that he wasn’t aware of the extent of the problem and thought he could handle it. The Tribunal pointed out that this doesn’t seem to be correct because he has also said he was informed by his family that the situation was dangerous and that he shouldn’t return home. Again he said he wasn’t aware of the full extent of the problems until he returned.
When asked what he did when he went back to Bangladesh the applicant said he also became housebound but struggled with that after a while. The applicant maintains that his family became a political target of the AL because of the [equipment] incident. He said that after his return, [in] August 2013, he went outside the house and a group of about four or five AL cadres attacked him. He said they punched him in the face but he was able to escape and ran home. That night his family decided he should move to his uncle’s house in Mirpur. However, he said that two to three days after going to his uncle’s house he saw the same group of AL people loitering outside the house. At that point his uncle feared he would be kidnapped and so organised for him to get a student visa to [Country 1].
When asked whether he was engaged in any political activity before [August] 2013 he said he was doing little jobs for the BNP such as mailing, communication, helping with posters. He said that small gatherings of people sometimes met in the house as well.
The applicant confirmed that he lived in [Country 1] from December 2013 until March 2015. When asked what he did there he said that his intention was to be safe. He said that when his visa was nearing its end he needed to find another safe place and so came to Australia. He said he knew from doing research that he could get help in Australia. The Tribunal pointed out that he arrived in Australia on 8 March 2015 yet only made his application for a protection visa three months later. He said that when he arrived it took him some time to familiarise himself with the system and to meet people who could help him. He said the moment he felt settled he contacted a lawyer. When asked why he did not seek protection in [Country 1] he said that he found out it would be easier to get protection in Australia. The Tribunal put it to the applicant that his pattern of behaviour causes some concern. That is, he withdrew his protection appeal in [Country 2] and returned to Bangladesh; he didn’t seek any help during the time he lived in [Country 1] and waited three months after arriving in Australia to lodge his protection visa application. The applicant replied that he had a sense of urgency but thought he had three months to get his application together.
The applicant was asked about his involvement with the BNP in Australia. He said that the BNP in Australia conveys information about what is happening in Bangladesh. He said they run different programs in Australia and he has participated in these programs since the end of 2015. When asked to be more specific about his BNP activity he said that he attends events to mark prominent anniversaries of BNP figures. He also said that he participates in discussions with like-minded people to exchange ideas. He added that he attended a protest in May [2018]. He confirmed this is the only political protest he has attended in Australia. When asked if he was similarly involved with any BNP groups in [Country 2] he said he was not because he was focused on his studies.
The Tribunal put it to the applicant that it does not appear that he has a high level of political engagement with the BNP party. He reiterated his claim to be an active BNP supporter. When asked what level of political activity he would assume if he returns to Bangladesh he said that he is sick of thinking that he would have to face his attackers again. He said he hasn’t thought beyond that.
The Tribunal put it to the applicant that it appears the problems his family have with the AL are localised and that it might be possible for him to relocate to another part of Bangladesh to avoid the harm he fears. Further, the Tribunal discussed country information with the applicant which suggests that Bangladeshi authorities and AL activists mostly pursue more broadly throughout the country prominent BNP members and activists. The applicant replied that he tried fleeing to another area in Bangladesh in 2013 but he was located by the AL within two or three days. He said that anybody with a political past will be hunted down in Bangladesh.
The Tribunal also discussed with the applicant country information which suggests that the highest levels of politically motivated, inter-party violence occurs outside Dhaka and at present intra-party violence, especially within the AL, accounts for most of the reported violence. The applicant replied that formerly his family had no issues engaging in their political activities but that since the [equipment] incident they have been made a target.
The Tribunal asked the applicant if his family would be safe if it wasn’t for the [equipment] incident and he agreed that despite them being affiliated to the BNP they were alright beforehand.
Referring to the above submissions, the Tribunal asked the applicant’s representative to clarify the harm the applicant fears because of his membership of a particular social group. The representative confirmed that the applicant fears harm on account of his political opinion and not because of his membership of a particular social group. When asked to verify the corroborative evidence of the applicant’s active political opinion referred to in submissions the representative referred the Tribunal to the letter of support provided by the BNP Australia.
FINDINGS AND REASONS
Country of reference
At the Tribunal hearing the applicant produced a copy of his Bangladeshi passport which verifies his claimed identity and nationality. In the absence of any information to the contrary the Tribunal accepts the applicant is a national of Bangladesh and has assessed his claims against Bangladesh.
The Tribunal acknowledges the applicant has provided largely consistent evidence in respect of the claimed [equipment] incident which he testifies ultimately led to his family being targeted as opponents of the AL. However, the Tribunal has a number of overarching concerns in this case which call into question the credibility of key aspects of the applicant’s protection claims.
Firstly, the Tribunal finds it highly coincidental that the applicant made a claim for asylum in [Country 2] only after he was taken into immigration detention for overstaying his student visa. Even putting this aside, he maintains that he applied for protection in [Country 2] because his family advised him it was unsafe for him to return to Bangladesh. Based on his evidence, when his application for asylum was refused he appealed the decision but subsequently withdrew the appeal before it was finalised and returned to Bangladesh. When the Tribunal questioned this decision at hearing the applicant responded that he returned to Bangladesh because his family was having problems and he thought he would be able to handle the situation.
The applicant made his application for asylum in [Country 2] in April 2013 and on his evidence he returned to Bangladesh in July 2013. As flagged at hearing, the Tribunal finds it difficult to accept that he returned to Bangladesh only a few months after the [equipment] incident which he claims gave rise to the ongoing political problems his family is facing. During the hearing the applicant also stated that he was not aware of the full extent of the problem until he returned home. However, as flagged with him the Tribunal is not persuaded by this given he says his family had advised him that the situation was unsafe to return to. In the circumstances, the Tribunal considers it more likely a person in the applicant’s situation would have pursued the appeal of his failed asylum bid in [Country 2] to its conclusion if the situation at home was as bad as he claims. That he did not, in the Tribunal’s opinion, calls into question his claims.
Secondly, after departing Bangladesh a second time the applicant spent approximately fourteen months living in [Country 1]. While he made no attempt to contact the UNHCR in [Country 1] he said that he researched his options and realised that he would be better placed to ensure his safety in Australia. Despite this, the applicant delayed his application for a protection visa in Australia by approximately three months. When this was discussed at hearing he claimed he needed time to familiarise himself with the system and to seek out people who could help him. The Tribunal notes that the applicant lived in [Country 2] for three years and in [Country 1] for over twelve months. Further, he indicates on his application form that he can speak, read and write (limited) English. On his evidence he was also able, through research, to determine that he could apply for protection in Australia. Indeed the reason given for his travel to Australia was to ensure his personal safety. In the Tribunal’s view the applicant has not convincingly accounted for the delay in lodging his application for a protection visa in Australia. Faced with the fear of being seriously harmed in Bangladesh and armed with sufficient language skills and some knowledge of the processes for seeking asylum, based on his Australian research and past experience in [Country 2], the Tribunal considers the delay between his arrival and applying for a protection visa raises questions about the applicant’s need for protection.
The Tribunal acknowledges that the applicant has produced evidence which verifies that [an equipment] was burned in [Town 1] [in] March 2013 by Jamaat Shibir and BNP supporters. The Tribunal accepts on this evidence that [an equipment] was burned in similar circumstances described by the applicant but as flagged with him at hearing the evidence does not name the owner of the [equipment] and therefore it is of little assistance in substantiating his claims.
Similarly the copy of the general diary entry claimed to have been lodged by his father following this event is little more than a typed statement on a blank piece of paper which bears few if any hallmarks of an officially noted document. When this was put to the applicant at hearing he stated that in the local area they don’t bother with such things, they simply sign it. The Tribunal is of the view this general diary entry could easily have been written by anybody and produced for the purpose of strengthening the applicant’s claims. The Tribunal is not satisfied that this document can be relied upon to overcome the concerns expressed above and below.
The applicant claims that his father was pressured by the AL to implicate Jamaat Shibir and/or BNP leaders in the burning of the [equipment] and that this pressure continues to be applied today. As discussed with the applicant at hearing the Tribunal finds it far-fetched and implausible, given country information reports and the submissions made in respect of the AL’s ability to act with impunity, that they are continuing to apply pressure on his father to implicate opposition leaders in a crime committed five years ago. Further, the evidence is that despite this ongoing pressure the applicant’s parents have remained living in their family home all of this time.
The Tribunal also doubts the claimed reasons for his brothers’ departures from Bangladesh. The applicant claimed in the application form that his brothers left Bangladesh because of the problems the family encountered in connection with the [equipment] incident. In his statutory declaration he says that only one of his brothers, the one working alongside his father in the [equipment] business, left for [Country 3] after the [equipment] was burned. At the hearing, the applicant clarified that the first of his brothers to move to [Country 3] did so many years before the [equipment] incident occurred.

In the Tribunal’s view the family’s behaviour does not support the claim that the family have endured ongoing threats and harassment from the AL in connection with the [equipment] incident.
The Tribunal notes that a psychologists report dated [May] 2018 provides a similar account of the applicants claims in respect of his family’s affiliation with the BNP; the [equipment] incident; his and his family’s harm at the hands of the AL and his subsequent departure to [Country 1]. The report indicates the applicant has symptoms of Post-Traumatic Stress Disorder and Generalised Anxiety Disorder. It was observed during four counselling sessions that the applicant had some difficulty concentrating and was sometimes forgetful. Despite this, it was not submitted in either the written or oral evidence to the Tribunal that the applicant was unfit or that he had a mentally reduced capacity to participate in the Tribunal hearing. In any event, as noted above, the Tribunal considers the applicant has provided a generally consistent account of his claimed circumstances.
The psychologists report states that the report was written for the purpose of supporting the applicant’s application for a protection visa. It is largely a recount of his written claims based on information provided by the applicant in the course of four counselling sessions. As a piece of evidence it arguably provides some support for the applicants claims in that the information contained in the report is largely consistent with his written and oral evidence. However, the Tribunal has already accepted that the applicant has provided a largely consistent account of his claims throughout the proceedings to date. The Tribunal has placed little weight on the report.
Having carefully considered the evidence, and having regard to the concerns expressed above, the Tribunal is not persuaded that it was the applicant’s family [equipment] which was burned on 3 March 2013. It follows that the Tribunal does not accept the applicant or his family have or are being pressured to name opposition persons in connection with this event or that the applicant was beaten by AL people in August 2013 and forced to flee his home in connection with this event or that one or both of his brothers relocated to [Country 3] to avoid being harmed for this reason.
Nonetheless, the applicant’s evidence is that he and all his family are associated in some way with the BNP. He said that in the past his father supported his uncle who was a local BNP leader. The applicant stated at hearing that he was personally involved with Chhatra Dal for about two years when he was a student.
The discussion about the applicant’s political activities in Bangladesh at hearing did not reveal, in the Tribunal’s view, that he has a high political profile in Bangladesh. The applicant claimed that he and his father helped his uncle to organise and gather people to join in marches and to put up posters in the local area. He said that when he was with Chhatra Dal he similarly put up posters and banners and helped with communication. He said he also participated in some marches. The applicant explained his attraction to the BNP over the AL in very general terms and did not demonstrate a detailed understanding of the points of conflict between the two parties in recent years. The Tribunal found the discussion did not elicit any meaningful detail about the BNP’s political platform despite that he could recount with a reasonable degree of accuracy the four main principles of the party.
Notwithstanding the above, the Tribunal accepts that the BNP is one of Bangladesh’s oldest and largest political parties. The Tribunal also accepts that a person may develop a genuine political preference on the basis of family tradition without a strong understanding of political ideology. The Tribunal accepts it is possible that the applicant and his family are supporters of the BNP and may have helped organise and have attended some local public activities of the BNP. The Tribunal is also prepared to accept the applicant may have had a period of involvement with Chhatra Dal between 2009 and 2011.
Based on his evidence, while his uncle may have held an unelected BNP leadership role at the local level neither the applicant nor his father were members of the BNP in Bangladesh or occupied any elected positions. At the hearing he stated that neither he nor his father encountered any problems on account of their political preferences or activities prior to the [equipment] incident. As noted above the Tribunal accepts [an equipment] was burned but not that it belonged to the applicant’s family. The applicant claims in his statutory declaration dated 14 October 2015 that he became deeply involved in BNP area programs when he returned from [Country 2]. The Tribunal does not find this statement is supported by his evidence at hearing, namely that he did some little jobs such as mailing and helping with posters and attending small gatherings at home. Based on the available evidence, the Tribunal does not accept that the applicant had any local political profile or influence prior to his departures from Bangladesh that might bring him to the adverse attention of AL figures if he returns home.
The applicant also confirmed at hearing that he had no involvement with the BNP in [Country 2]. However, as noted above, he has presented a letter from [a member of the] Bangladesh Jatiotabadi Dal (BNP) Australia dated [July] 2017 stating that he is a general member in Australia and that as an opposition activist in Bangladesh the applicant participated in various anti-government rallies and demonstrations. The letter also states that to the best of his knowledge the applicant and his family suffered severe violent acts by the ruling party in Bangladesh. The letter also testifies that the applicant has been involved with the political and community activities of the BNP Australia since his arrival in Australia.
When asked at hearing to expand on his political activity in Australia the applicant said that he attends important anniversary events and participates in discussions with like-minded people about the situation in Bangladesh. He also said he attended one demonstration in [Australia]. The applicant did not provide any further details or supporting evidence to show his involvement with the BNP in Australia.
[The member of BNP Australia] states that he has personally known the applicant since [November] 2015. Therefore the Tribunal is not satisfied that he is well placed to comment on the applicant’s past political activity or claimed past harm in Bangladesh. The Tribunal finds it likely his comments are based on information provided to him by the applicant himself. Nevertheless, the Tribunal accepts that the applicant has attended some BNP-related activities in Australia and on the available evidence is not concerned that this was done solely for the purpose of strengthening his claims for protection. However, the applicant’s conduct in Australia does not alter the Tribunal’s assessment that the applicant does not have a high or adverse political profile in Bangladesh. In this respect the Tribunal finds it significant that the applicant was never a member of the BNP and has spent just six months in Bangladesh in the past seven years. The Tribunal does not consider his attendance at BNP gatherings in Australia, some of which appear to be more social than political in nature, is an indication that he has strengthened or heightened his political resolve or that his attendance at one political protest gives him an adverse political profile in the eyes of the Bangladeshi authorities or his alleged political enemies in Bangladesh.
The Tribunal accepts that if the applicant returns to Bangladesh he may continue to favour the BNP and may participate in some low level local events. However, the Tribunal is satisfied that he is not sufficiently motivated to join the party or actively engage in any high profile political activities which will heighten the risk of him coming to the adverse attention of his political opponents.
As to any risk he may face in respect of his father’s and uncle’s political profiles the applicant’s evidence is that his father is no longer politically active. He claims his uncle is still a member of the BNP and in times of turmoil he leaves his local area for his own safety. However, according to the applicant his uncle was a BNP leader long before he departed Bangladesh and on his evidence he experienced no past harm before his departure to [Country 2] in 2011 despite his association with his uncle.
The Tribunal has had regard to a range of country information sources and the country reports referenced in the submissions made on behalf of the applicant. The Tribunal has also had regard to DFAT’s country information assessment which states:
The AL has focused on restricting the activities of opposition political parties, particularly the BNP and JI. These restrictions have included arresting thousands of opposition political party members and supporters, often in conjunction with political demonstrations, preventing opposition parties from holding meetings and demonstrations, and pressuring opposition candidates to withdraw from local and municipal elections….
DFAT assess that under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges and travel bans. Active members of opposition political parties and auxiliary organisations who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. This risk is elevated around times of heightened political tension, including elections. Ordinary members of opposition political parties and auxiliary organisations who do not engage in political activities and demonstrations face a low risk of arrest, although this may vary according to location and timing.
DFAT goes on to state that in recent years, the frequency and level of intra-party violence has far outweighed that of inter-party violence, particularly between competing AL factions.[1]
[1] DFAT Country Information Report, Bangladesh, 2 February 2018
During the hearing the Tribunal discussed with the applicant country information which indicates that violent incidents between the AL and BNP have declined since 2014 whereas intra-party violence, especially within the AL, has increased in recent years. Despite ongoing reports of inter-party violence since 2013, DFAT assessed that the number of casualties remains relatively low in proportion to the size of these parties.[2] This advice is supported by statistics reported by Ain o Salish Kendra (ASK), a legal aid and human rights organisation. For instance, in 2016, 9 incidents of political violence were reported between the AL and the BNP resulting in 1 death and 135 injuries. In the same period 75 incidents of intra-party violence within the AL were reported resulting in 13 deaths and 890 injuries. Similarly in 2017, 11 incidents of political violence were reported between the AL and the BNP resulting in 1 death and 166 injuries compared to 135 incidents of intra-party violence in the AL resulting in 28 deaths and 2282 injuries.[3] A Dhaka Tribune article reports a decrease in political clashes overall from 848 in 2013 (22,407 injured; 507 killed) to 256 (3,506 injured; 44 killed) in 2017. A breakdown by party reveals AL versus BNP violence at 304 incidents compared to AL versus AL violence at 845 incidents.[4]
[2] DIBP, Issues Paper, Bangladesh: Political violence involving Awami League and Bangladesh Nationalist Party supporters 2014-2016.
[3] Ain o Salish Kendra (ASK), Political Violence: January-November 2017; Ain o Salish Kendra (ASK) Political Violence: January – September 2016
[4] ‘Five years of political violence: 1,028 deaths and 52,000 injuries’, Dhaka Tribune, 20 November 2017.
Based on available country information, the Tribunal accepts that political violence in Bangladesh continues but there is nothing before the Tribunal to support that the applicant’s local area is any better or worse off than other parts of the country, except for the possible exception of Dhaka. The Tribunal accepts the submissions made in respect of the AL’s pursuit of its political opponents, including physical attacks and politically motivated cases as well as police interference and corruption. Further, the Tribunal accepts the likelihood that local level BNP supporters can on occasion suffer serious harm especially during times of heightened turmoil. Despite this, the country information reveals that the number of casualties arising from inter-party violence remains relatively low in proportion to the size of these parties and in recent times relatively low compared to the reported incidences of intra-party violence.
The Tribunal notes its earlier findings in respect of the applicant’s past political profile in Bangladesh. The Tribunal also refers to the fact that the applicant, with the exception of a six month period, has been absent from the country for seven years and had no political involvement with the BNP in [Country 2] and has had only a low level involvement with the BNP in Australia. Also, the Tribunal has placed weight on the applicant’s own evidence, namely that his past level of political activity attracted no adverse attention in Bangladesh and had it not been for the [equipment] incident (which the Tribunal rejects) he believes he and his family would be alright despite their political affiliations.
Taking into account the applicant’s personal circumstances and prospects, and the country information referred to above, the Tribunal finds that there is not a real chance he will attract adverse attention from AL supporters or the Bangladeshi authorities for political reasons if he returns to Bangladesh. The Tribunal finds that he will not have to refrain from his current level of political activity or modify his conduct in order to avoid the risk of being persecuted.
The Tribunal finds that the applicant does not face a real chance of serious harm amounting to persecution, for reason of his political opinion or for any other reason set out in s.5J(1) of the Act, in Bangladesh, now or in the reasonably foreseeable future. Therefore the applicant does not satisfy the requirements in s.36(2)(a) of the Act.
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). For the same reasons already articulated the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh that there is a real risk he will suffer significant harm. The Tribunal finds the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
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.
…

[2018] AATA 3258

6 July 2018

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