1601408 (Refugee)

1601408 (Refugee) [2019] AATA 6016 (26 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1601408
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Nathan Goetz
DATE:26 July 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 July 2019 at 4:46pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – genuine political opinion – active member of BNP – does not accept that the applicant has ever been harmed on account of political opinion –outstanding criminal cases – late provision of documents inconsistent evidence – tribunal satisfied the documents are fabricated – brother detained – not satisfied that the applicant’s brother was targeted and jailed on account of the applicant – credibility issues – 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

[In] August 2014 the applicant, who the Tribunal accepts is a citizen of Bangladesh without any right to reside in a third country, arrived in Australia on a Work and Holiday visa which was valid for 12 months. He had applied for that visa two months prior to this visa being granted.
On 29 July 2015 the applicant lodge a protection visa application with the department. He was interviewed by a delegate of the Minister for Immigration on 16 December 2015.
On 29 January 2016 the delegate refused to grant the protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant lodged an application to review the refusal decision on 8 February 2016 and attached a copy of the delegate decision to his review application form.
On 9 July 2019 the applicant appeared before the Tribunal to give evidence and present arguments. The applicant was assisted by a Bengali interpreter and his migration agent [details deleted] did not attend the hearing.
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 Tribunal advised the applicant that it had read the department file and listened to the delegate interview and had reviewed the Tribunal file when considering his claims for protection. The applicant confirmed to the Tribunal that everything that was contained in his protection visa applicant, and what he told the delegate during interview, was the truth. The applicant indicated that there were no amendments that he wished to make to his evidence, apart from the fact that there may have been confusion when he gave his evidence to the delegate about the colours of the Bangladesh Nationalist Party flag and that he may have given incorrect dates about some events. The applicant did not cite any specific instances about the date confusion, but told the Tribunal an example of confusion may be where he provided evidence of a date being December 2001 but it could have been January 2002.
Written protection visa application
In the written protection visa application the applicant claimed that he was an active member of the Bangladesh Nationalist Party (BNP). He became a follower of the Bangladesh Jatiotabadi Chatra Dal (the student wing of the BNP) after seeing how that organisation helped students of [College 1] where he had enrolled himself after he had passed his secondary school certificate in [year]. He noted that he had faced problems with an exam enrolment application in [year] and that the general secretary of the college Chatra Dal helped him sort out the issue which allowed him to complete his HSC exam, and his result was published in [date].
In June 2004 he enrolled in a [course] and expressed his interest in becoming an active member of the BNP student wing. The person who helped the applicant sought out his exam application advised the applicant on the ideology of the BNP and its structure and the applicant paid a fee and completed the application form for the organisation. In 2007 the applicant became [elected in a position] at his college.
The December 2008 national election resulted in the Bangladesh Awami League (AL) coming to power with a majority of seats. The applicant stated that the Bangladesh Chhatra League (the student wing of the AL) started a power struggle with the BNP youth wing at the college. The applicant stated that the BNP youth wing started to protest but the AL youth wing was backed by the administration. The applicant noted that the wings fought on a regular basis to control and manage the BNP youth wing on campus. In 2011 the applicant claimed that he and other members of the BNP youth wing were attacked by the AL youth wing. The AL youth wing wanted to ensure that BNP youth wing members could not sit their exams. The fight also included police, who opened fire and the applicant was shot in the back with a rubber bullet and he sought treatment in a private hospital and later hid.
In [date] the applicant passed his exam and in July 2012 he retired from student politics. He then joined the Jatiyatabadi Jubo Dal (BNP youth wing) and became [elected in a position] the Sylhet City BNP youth wing. He noted that in 2013 he participated and helped the BNP candidate for [an] election which resulted in a win. The applicant was then given responsibility for the pending National Election but noted that as the BNP boycotted the election, the AL came remained in power. According to the applicant, this resulted in the BNP being humiliated and subject to political oppression by the AL, and that the AL is trying its best to suppress its opponents and remain in power indefinitely in Bangladesh.
The applicant stated that in June 2014 he was granted a visa to travel to Australia and that in July 2014 police charged him with vandalism and other offences. He was [elected in a position] at the time. In August 2014 he moved to Australia and a warrant was issued against him for those charges.
The applicant wrote that he has been subject of another two criminal cases since his arrival in Australia. In October 2014 he was again charged with vandalism and in January 2015 he had been charged with vandalism and attacking a police vehicle for an incident in December 2014. The applicant wrote that police were attending his family residence and attacking his family. He stated that senior leaders of the BNP asked him to ‘go underground’ as it was impossible to operate on the surface. He noted that fellow politicians had been arrested on different cases. He stated that he fears for his life under the current AL government and believes that his life will be in danger if he returns to Bangladesh.
Documents provided by the applicant in support of this protection claims
At the delegate interview, the applicant provided the following:
·An English translation of a letter from [a person] who identified himself as a lawyer engaged to act for the applicant. The letter certified that the applicant has three cases lodged against him in Bangladesh which were pending for trial and that warrants of arrest had been issued against the applicant.
·An English translation of a letter from [an official] which certified that the applicant was personally known to the author and that the applicant had been previously elected [in a position] for Ward [number].
·An English translation of a bundle of documents related to case [number] in [a court] in Sylhet. This bundle of documents related to offences from a First Information Report lodged [in] January 2014, a charge sheet issued [in] June 2014, an order of that court made [in] July 2014, and a warrant issued by that court [in] July 2014.
·An English translation of a bundle of documents related to case [number] of [a court in] Sylhet. This bundle of documents related to offences from a First Information Report lodged [in] May 2014, a charge sheet issued [in] September 2014, an order of that court made [in] October 2014, and a warrant issued by that court [in] October 2014.
·An English translation of a bundle of documents related to case [number] of [a court], Syhlet. This bundle of documents related to offences from a First Information Report filed [in] December 2014, a charge sheet dated [June] 2015, an order of that court made [July] 2015 and a warrant issued by that court [in] July 2015.
Once the matter was at the Tribunal stage, the applicant provided the following:
·15 photographs of the applicant attending two events associated with the BNP in Australia. The Tribunal notes that these photographs were sent by the applicant on 10 July 2017 to his migration agent but were not provided to the Tribunal. The applicant did so on the day of the hearing.
FINDINGS AND REASONS
Does the applicant hold a genuine political opinion supportive of the Bangladesh Nationalist Party and its allied groups?
Noting that the applicant told the Tribunal that he may have given inconsistent information about the colour of the party flag, the Tribunal considered what the applicant told the delegate and is satisfied that the applicant he meant to say that the colour associated with the BNP is blue, as both the Awami League and Bangladesh Nationalist Party flags contain the same colours. The Tribunal takes no issue with the applicant’s knowledge of the party flag. The Tribunal listened to a recording of the delegate interview and considered his responses to questions about his knowledge of the Bangladesh Nationalist Party and his past involvement with that political organisation. The Tribunal also asked the applicant questions about his involvement in the 2014 Bangladesh national elections, and the history of successful candidates for his constituency seat in the National Parliament. From the responses given, the Tribunal is satisfied that the applicant holds a genuine political opinion that is supportive of the Bangladesh Nationalist Party and its allied groups. The Tribunal would describe the applicant’s knowledge as comprehensive. The Tribunal has also had regard to the claims made by the applicant that he was [elected in a position] for Ward No [number] and that he assisted in [an] election for the BNP aligned candidate. The Tribunal is satisfied that the applicant did so.
Was the applicant previously harmed in Bangladesh as a result of his political opinion/activities? What has resulted from his political activities or opinion?
In the written application, the applicant makes reference to a power struggle between the student wing of the Awami League and the student wing of the BNP at [College 1] where he was a student. The Tribunal accepts that there have been tensions between supporters of the Awami League and Bangladesh Nationalist Party following the success of the Awami League in the December 2008 election.
The applicant claims that there was an incident in 2011 when police opened fire on the applicant and his fellow protestors. The applicant had been part of a group of BNP supportive students who were protesting because the Awami League student wing was attempting to stop the applicant and his fellow BNP-aligned supporters from sitting exams. The applicant claims that while he was in Bangladesh, he was the subject of criminal proceedings in case [number].
For the following reasons, the Tribunal does not accept that the applicant has ever been harmed in Bangladesh on account of his political opinion. In regards to the below concerns, the Tribunal is satisfied that the applicant is not a witness of truth.
Reason for not returning to Bangladesh
The applicant told the Tribunal that when he departed Bangladesh, he did not have an intention to remain in Australia. He stated that he wanted to bide his time in Australia while he was waiting for the government in Bangladesh to change. Noting that the applicant arrived in Australia in 2014, the Tribunal asked the applicant what political party was in charge when he departed Bangladesh. He confirmed that the Awami League was in power. The Tribunal queried how the applicant could say that it was not his intention to remain in Australia when the Awami League was in power at the time of his departure. To the Tribunal’s way of thinking, it would clearly be the applicant’s intention to remain in Australia until there was a change of government in Bangladesh and that intention would have been present at the time of the applicant’s departure. The applicant did not directly respond to the question, but stated that when he left Bangladesh, there was only one case filed against him. He then had two more cases filed against him after his arrival in Australia. When he discovered that there were three cases, he decided that he could not return to Bangladesh. He told the Tribunal that his family told him about those cases. They had discouraged him from returning. The applicant told the Tribunal he believed that if he returned to Bangladesh, he would be put in jail.
The Tribunal is not persuaded by the applicant’s evidence about this point. The applicant claimed that he had no intention to remain in Australia but wanted to remain here while waiting for the government to change from the Awami League to the Bangladesh Nationalist Party. The Tribunal struggled with the logic of the applicant’s claim to have no intention to remain in Australia at the time of his arrival here. In the Tribunal’s view, the applicant was clearly conscious that the Tribunal would be concerned about the applicant delaying his application for a protection visa until 11 months after his arrival in Australia. The applicant has crafted a narrative to try and account for this delay.
The Tribunal does not accept that the applicant, who claims that he was charged with a politically motivated case while he was in Bangladesh, would suggest to the Tribunal that he had no intention of remaining when he departed Bangladesh for Australia. Further, given that the applicant claimed that the AL student wing had tried to prohibit him and fellow BNP supporters from enrolling in examinations, that he had had experienced a power struggle on his campus between the two youth wings, and had been involved in election activities for [deleted] and had responsibility for the national election in 2014, and the applicant had been subject to political oppression by the AL following their electoral victory in 2014, it is incredulous for the Tribunal to believe that following the laying of a politically motivate case by supporters of the AL government, the applicant would leave Bangladesh but have intentions to return to that country.
In the Tribunal’s view, it would be reasonable to expect that the applicant would have formed a belief that he would be unable to remain in Bangladesh if the claimed facts about what occurred in Bangladesh were true. The Tribunal’s concern is compounded by the applicant’s evidence about the following.
2011 incident
The Tribunal discussed with the applicant his claim that he had been shot with a rubber bullet in 2011. The applicant claimed that he and others were protesting about the fact that forms for enrolment in a Masters Course were being controlled by the Chatra League who had fixed a hefty price for completing the forms. The applicant said that by doing this, the Awami League was segregating between people who supported the Awami League and those who supported the Bangladesh Nationalist Party. The applicant told the Tribunal that stipends were being dished out to supporters of the Awami League but supporters of the Bangladesh Nationalist Party were not not eligible for those stipends. Consequently, only those who supported the Awami League were able to fill in the appropriate enrolment forms. The applicant said that there were skirmishes and that the police got involved. The situation was resolved 8 to 10 days later when the principal of the educational institution got involved so that the BNP supports could fill out the forms and get enrolled. The Tribunal queried how this was possible if the Awami League actually controlled the process for filing out the forms as the applicant claimed. It would appear that the principal would not be able to resolve this conflict. The applicant said that the principal had the power to do those because his college was half-government and half-private. The applicant then told the Tribunal that the principal was suspended a couple of months after assisting the BNP students to file the enrolment forms and was later removed from the post.
The Tribunal does not accept that this incident happened. To the Tribunal’s way of thinking, it is incredulous on one had to suggest that the principal of an educational institution was beholden to the Awami League which put in place a system to stop BNP supporters from enrolling in educational opportunities, but on the other hand, the principal was able to resolve this issue 8 to 10 days later so that the BNP aligned students could fill in those very same enrolment forms. In the Tribunal’s assessment, this claim is not credible.
Departure from Bangladesh

The applicant told both the delegate and the Tribunal that he was stopped at the airport and question for approximately 40 minutes by immigration officials when he was departing Bangladesh. The Tribunal asked the applicant whether the immigration officials asked him about the criminal case or about politics. The applicant told the Tribunal that the officials asked him about his political background and that the officials were catching people from Jamaat-e-Islami, who the applicant noted had been linked to the BNP in a coalition. The applicant told the Tribunal that he was not asked about his criminal case, and when asked about his political background, he told the officials that he did not disclose that he was affiliated with anyone. He was asked which political party he or his family were affiliated with or supported, and he said that they were politically neutral. The Tribunal was curious as to why the applicant would tell the officials that he and his family were neutral and that they did not support anyone. The applicant told the Tribunal that he did not want to get into any trouble and that if he said that he was a BNP supporter and that he may land in trouble, noting that he already had a case lodged against him.
The Tribunal was perplexed by this answer. Again, noting that the applicant claimed that he was the subject of a politically motivated case, and had claimed to have experienced other difficulties in Bangladesh, the Tribunal struggles to understand that the applicant could suggest that when he departed Bangladesh his intention was not to remain in Australia. In the Tribunal’s view, being questioned at the airport for 40 minutes about your political beliefs by government officials, with an outstanding criminal case against you, would suggest that the applicant was clearly a person of interest to the authorities and would provide the applicant with concerns about his safety should he return to Bangladesh. In the Tribunal’s assessment of the applicant’s claim about his interaction with authorities at the airport, if it were true that he was questioned for 40 minutes as claimed, he would have left Bangladesh with every intention of not returning there, and would have done something to remain in Australia soon after his arrivial.
The applicant’s departure from Bangladesh is made more curious by the fact that he was able to depart notwithstanding that there was a current criminal case against the applicant. The applicant explained his ability to do so because the case against him had been registered in July 2014 and he said that it takes about 45 days to frame the charge sheet and for it to be processed. He stated that he was able to slip out of Bangladesh during that time. The Tribunal put to the applicant that country information suggested that it would be difficult to travel out of Bangladesh in the circumstances as alleged by the applicant. According to the DFAT Country Information Report – Bangladesh – 2 February 2018 at 5.20 the Bangladesh Department of Immigration conducts immigration checks and maintains a list of convicted criminals and person wanted by security forces and intelligence agencies. The department uses the list to determine whether to issue passports but may also use it to prevent people from leaving the country. DFAT is aware of cases in which authorities have prevented both senior members of the BNP leadership and ordinary BNP members from leaving the country. The Tribunal notes that the court documents provided by the applicant regarding the criminal case against him (Folio 60 to 86) provide a first information report of [January] 2014, a charge sheet of [June] 2014 and a court order of [July] 2014 with an accompanying warrant for the arrest of the applicant on the same date as the court order. The warrant notes that the applicant had absconded. The Tribunal struggles to accept that applicant, who was targeted by the AL because of his political opinion, would find himself in a position where he would be able to successfully depart Bangladesh with authorities unaware that that he had an outstanding criminal case and specifically a warrant out for his arrest.
Delay in application for protection
The applicant was asked by the Tribunal about when he became aware that he could claim protection in Australia. The applicant’s evidence about this point was vague and unpersuasive. He told the Tribunal that he became aware that he could claim protection in 2015 but could not be more specific. When asked who told him about protection visas, he was similarly vague, telling the Tribunal that ‘lots of people’ told him. The Tribunal pressed the applicant to be more specific but he remained vague about who told him about protection visas. Given that the applicant would have been required to return to Bangladesh at the conclusion of his work and holiday visa, and he claimed that he was unable to return because he feared harm in doing so, the Tribunal would think that being told about the ability by a person or a group of people that there was an avenue for the applicant to remain in Australia and instead of returning to Bangladesh and avoiding a repetition of past harm would be something that would easy for the applicant to recall.
In this case, the applicant arrived in Australia [in] August 2014 and delayed applying for a protection visa until 29 July 2015. In the Tribunal’s assessment of the evidence, the applicant’s evidence that he did not leave Bangladesh with an intention to remain in Australia, and his evidence that he did not find out about protection visas until 2015 was evidence that was crafted by the applicant to fit the dates of his arrival and protection visa lodgement date. He was attempting to persuade the Tribunal that there was in fact, no delay in lodging his protection visa because he did not form a believe that he could not return to Bangladesh until he became aware that there were three criminal cases against him. As discussed previously, the Tribunal does not accept as plausible that the applicant would not have a genuine fear of returning to Bangladesh if he was questioned for 40 minutes at the airport prior to his departure, and if he had an outstanding criminal case against him. The Tribunal therefore does not accept that the applicant would arrive in Australia and not make enquiries about remaining here until being told that he could apply for protection until 2015. The Tribunal’s concern about the lack of credibility is compounded by the issue of the late provision of documentation about the criminal cases as discussed below.
Documentation in support of three criminal cases
The applicant told the Tribunal that he obtained a copy of the court documents against him when he decided to apply for a protection visa. He told the Tribunal hat he got them from Bangladesh and he obtained them before he applied for the protection visa. The Tribunal asked the applicant specifically how those documents were supplied. The applicant told the Tribunal that a lawyer had been engaged by his family to get a copy of the original document and the translated version, and then the lawyer sent those documents to the applicant. He told the Tribunal that she showed those documents to the delegate, and the Tribunal accepts that he did so. Having listened to the delegate interview, the Tribunal notes that both a copy in Bangladeshi with an accompanied translation was produced to the delegate. The delegate retained the translation copy and returned the Bangladeshi copy documents to the applicant. Given that neither the copy of the Bangladesh court document nor its English translation was included in the written protection visa application, the Tribunal questioned why the applicant did not include those documents with the written application. Clearly, the applicant said that he had those documents with him before he lodged his protection visa claim. The applicant told the Tribunal that he did not do that because he wanted to provide ‘the originals’ at the interview delegate interview. He told the Tribunal this is why he did not produce copies at the time of his written protection visa application. The Tribunal notes that he made reference in the written protection visa application that he would provide a police charge sheet and warrant later.
The Tribunal has had regard to country information about the prevalence of fraudulent documents from Bangladesh, and notes that the September 2017 report of the UK Home Office Fact-Finding Mission for Bangladesh stated that according to British High Commission, forget and fraudulently obtained documentation was easily obtainable in Bangladesh. The applicant told the Tribunal that the documents he provided in support of his protection visa application were genuine.
The Tribunal has concerns about the veracity of the documents produced by the applicant for a number of reasons. Firstly, the Tribunal does not accept that the applicant would not have provided those documents (or a copy of those documents) with his written protection visa application when he submitted his written protection visa if those documents were genuine. They were clearly highly relevant in the applicant’s mind as supportive of his claims. The provision of those documents would have allowed the department to consider them together with the rest of his application prior to hearing and an applicant acting reasonably would have appreciated that this would assist his case. The Tribunal accepts that the applicant has indicated in his written protection visa application that he would provide a copy of the police charge sheet and warrant ‘later’, but when the Tribunal considers that these these documents were translated and attested to by a Notary Public in Bangladesh [in] December 2015 (which was after the applicant had submitted his protection visa application in July 2015) this clearly indicates that the documents were not in the applicant’s possession before he lodged his written protection visa application, and is in conflict with the applicant’s oral evidence to the Tribunal. In the Tribunal’s assessment, the applicant applied for his protection visa and then sought to produce supportive documentation after the fact, and not because he had the documents and wanted to produce the originals to the delegate at interview.
When the Tribunal considers the late provision of the documentation, and the fact that the applicant has provided inconsistent evidence about when he actually possessed those documents, together with the other concerns that the Tribunal has expressed, the Tribunal is satisfied that the documents are fabricated and were generated in an attempt to lend credibility to the applicant’s claims. The Tribunal does not accept that the applicant is subject to three criminal proceedings in Bangladesh.
Are there any other reasons why the applicant cannot return to Bangladesh?
Incident relating to the applicant’s brother
The applicant told the Tribunal that in 2017, which was after he left Bangladesh; his brother was jailed for two days because the applicant was against the country. The applicant said that he and his family had to spend money to get him released from detention. The applicant told the Tribunal that his brother was detained because [details deleted] and the government filed a case against his brother who was head of the family because there was a default in payment. The applicant told the Tribunal that this related to his claims for protection because the government were trying to harass the family. As none of his family are politically affiliated, the Tribunal understands the claim to be that his family were harassed because of the applicant. The applicant told the Tribunal that the case against his brother was false.
While the Tribunal concedes that the hearing would have been the first opportunity for the applicant to raise a claim that occurred in 2017, the Tribunal is not satisfied that this event regarding his brother occurred at all. The applicant provided nothing to the Tribunal by way of charge sheets, or other corroborative evidence to support this claim. As the incident involving the applicant’s brother was clearly something that the applicant cited as a reason that the applicant could not return to Bangladesh, and the applicant had seen the need to provide corroborative evidence to support his claims by way of copies of his own criminal proceedings in Bangladesh, the Tribunal viewed this claim with suspicion. When considering this claim together with the concerns that the Tribunal has previously expressed, the Tribunal is not satisfied that the applicant’s brother was targeted and jailed on account of the applicant.
Photographs of the applicant in Australia / Activity in Australia
The applicant provided 15 photographs of himself at two events in Australia. The Tribunal was asked about when and why those events occurred. The applicant said that the first event was a protest about [deleted] and that this was held in 2016. It was a protest held at a [location] in [Suburb 1] [State 1]. The applicant said that the second event was also held in [Suburb 1] [State 1] and related to the election of a new committee in 2016 for the BNP in Australia. The applicant was asked whether he was a member of the BNP in Australia, or whether he just attended events. The applicant stated that in Australia, the BNP is divided into factions and that he attends programmes, but was confused about which group would be the most active, so that is why he was not a member in Australia.
The applicant did not assert that his attendance at programmes in Australia, or indeed the two events in [Suburb 1] in 2016 provided a basis for a claim for protection. As the Tribunal understands the applicant’s case, these photographs were submitted to demonstrate that the applicant is genuine in his support of the BNP. As noted at the start of this decision, the Tribunal accepts that the applicant is genuinely supportive of the BNP and has been involved in that organisation in Bangladesh. However, for the reasons or the reasons previously discussed, the Tribunal is not satisfied that the applicant has previously been harmed in Bangladesh on account of his political opinion or that he is the subject of criminal proceedings in Bangladesh. The Tribunal does not accept that the applicant will be harmed on account of his political opinion if he were to return to Bangladesh. He is not a high profile member of the BNP diaspora, has held no leadership positions or membership in Australia, and has not previously been harmed in Bangladesh on account of his political opinion. There is no reason for the Tribunal to be satisfied that if he returned to Bangladesh where he will resume his support and membership of the BNP, that he would be at risk of harm.
CONCLUSION
The Tribunal’s task is to be satisfied that the applicant faces a real risk of serious harm on account of his political opinion, or to be satisfied that there are 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. In the Tribunal’s assessment, the applicant has been involved in political activity associated with the Bangladesh Nationalist Party in the past, and after a period abroad, will resume that activity if he were to return to Bangladesh. However, as the Tribunal is satisfied that he has not previously been subjected to harm nor is he subject to the criminal proceedings as claimed, the Tribunal is not satisfied that the applicant faces a real risk of serious harm, or a real chance of significant harm, if he returns to Bangladesh.
Refugee Criteria
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary Protection Criteria
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, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
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.
…

[2019] AATA 6016

26 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction