1603243 (Refugee)

[2018] AATA 4608

1603243 (Refugee) [2018] AATA 4608 (10 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1603243

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:James Silva

DATE:10 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 10 October 2018 at 3:58pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh Nationalist Party (BNP) – political violence – victim of threats and extortion – violent assault on family member – member of BNP affiliated organisations in Australia – ex-wife’s family has influence in the Awami League – credibility issues – limited evidence of applicant’s political activities – no evidence of an adverse political profile – delay in applying for protection – decision under review affirmed

PRACTICE AND PROCEDURE – invalid non-disclosure certificate 

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 91R, 437, 438, 499

Migration Regulations 1994 (Cth) Schedule 2

CASES

MZAFZ v MIBP [2016] FCA 1081

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a man [age] from Bangladesh. He claims to be a citizen of Bangladesh.

2. The applicant first arrived in Australia [in] July 2005, as the holder of [Temporary Visa 1] (as the dependant of his ex-spouse). He applied for a Protection (Class XA) visa on 17 September 2015. (The applicant lodged a Protection visa application form on 1 September 2015, but this was found to be an invalid application.) He attended an interview with the delegate of the Minister for Immigration on 15 February 2016.

3. On 1 March 2016, the delegate refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

4. This is an application for review of that decision.

5. The applicant appeared before the Tribunal on 18 October 2016, to give evidence and present arguments.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

7. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. The relevant law is in Attachment A.

   CLAIMS AND EVIDENCE

   Summary of Claims

8. The applicant claims to have been an activist in the Bangladesh Nationalist Party’s (BNP) student wing, the Jatiyatabadi Chhatradal (‘JCD’) from 1994 to 2005, and to support the BNP. He claims that cadres of the ruling Awami League party (AL) attacked him during a brief return visit to Bangladesh in 2007. He claims that since then, the AL government, party members and cadres have signalled their adverse interest in him, including a serious assault of his brother in 2013, fabricated criminal charges against the applicant in 2015 and ongoing harassment of his family.

9. He claims to also fear harm from his ex-wife’s family, who have influence in the AL. Following the couple’s divorce in October 2012, they are angered that he has brought her and the family into disrepute, and are making extortion demands on the applicant’s family.

10. The applicant claims to fear that the government and its agent will subject him to persecution or significant harm, such as physical assaults, arrest, torture, imprisonment or extra-judicial killing, if he returns to Bangladesh, for political reasons. He also claims to fear that his ex-wife’s family will incite or be involved in such actions, or directly attack him, with impunity.

    Background

11. The applicant is a [age] year old man from [City 1] [Division 1], Bangladesh. He identifies as a Sunni Muslim, and indicates that he is a speaker of Bengali (Bangla) and English. He gave one residential address in [City 1], where he lived from birth until his departure for Australia in July 2005.

12. The applicant attended primary school and secondary school in [a town of a certain district] (which is part of [Division 1]). He completed his Higher School Certificate at [named] College, [City 1]; and commenced a Bachelor [degree] at the same college, but withdrew from the course. He provided no details in his application of past employment in Bangladesh. At hearing, he said that from about 1996 to 2001[1] he worked part-time with a few friends, organising labour for [particular] projects. In response to the Tribunal’s questions, he said that he and his friends got preferential treatment in the ‘sale’ of these contracts, on political grounds. For a short period, he also ran a small shop, but this was not profitable, and he closed it. The applicant was vague about his activities and income from 2001/2002 until his departure for Australia some three years later.

    [1] The applicant was uncertain about the periods, variously stating that he did this work from 1996, 1997 or 1998, until about 2000, or 2001/2002.

13. The applicant’s first marriage took place in January 2004, to a Bangladesh national whom he accompanied to Australia as her dependant (see below), [Ms A]. They divorced in October 2012. In July 2014, he married a [Country 1] citizen, [Ms B].

14. The applicant’s widowed mother, and [several of] siblings, [live] in [City 1]. He claims to be in regular contact with them.  He has a married sister who lives in [Australia in City 2], [Ms C], who attended the Tribunal hearing. The applicant’s father died in 2012.

15. As noted above, the applicant’s first Bangladesh passport was issued on [date] 2002. He also brought to the hearing a passport issued by the Bangladesh High Commission in Canberra on [date] 2013.

16. The applicant has been in Australia since July 2005, except for a return visit to Bangladesh in 2007. He gave information about his migration history in his written submissions and oral evidence. In brief:

    §  He obtained a [Temporary Visa 1] in May 2005, as the dependant of his former wife [Ms A]. He arrived in Australia [in] July 2005.

    §  He obtained successive temporary visas on the basis of his relationship with [Ms A] – a [Temporary Visa 1] in December 2007 and a [Temporary Visa 2] in July 2009. [Ms A] applied for two permanent [visas], in June 2009 and in November 2009, in which the applicant was included as her dependant. However, she withdrew her applications and in November 2013, the applicant was refused these visas.

    §  The applicant lodged his protection visa application in September 2015. He also applied for a partner visa in September 2016, on the basis of his relationship with [Ms B]. On 8 February 2018, the Department refused the application, as the delegate was not satisfied as to the genuineness of the claimed relationship. The applicant has a separate ongoing application before the Administrative Appeals Tribunal for review of that decision. [Ms B] attended the Tribunal hearing as an observer.

17. The applicant has lived in various addresses in [City 2], and provided details of past employment in various restaurants. At the time of application (September 2015), he claimed to have been unemployed since July of that year. He told the Tribunal that he has worked as a [occupation] and in [a particular workplace].

    Evidence

18. The Tribunal has before it a range of material including, relevantly:

    §  The applicant’s protection visa application form lodged on 17 September 2015. This includes brief reasons for the applicant claiming protection, but foreshadows a detailed statement later. He attached an undated statement of claims to the application form.

    §  Documents relating to the applicant’s identity, nationality and background

    -   Partial photocopies of his Bangladesh passports: (a) passport issued in [City 1] on [date] 2002, initially valid to [date] 2007, and extended on several occasions; and (b) passport issued by the Bangladesh High Commission in Canberra [in] 2013, valid for five years.

    §  A detailed 102-page submission from the applicant’s representative, dated 9 February 2016. This includes a brief statement of the applicant’s claims and a conclusion. For the main part, it consists of a list of country information references, selected excerpts and summaries of country information, and examples of recent AAT decisions. The focus of these is on political violence in Bangladesh, and the targeting of BNP activists and members.

    §  Statutory declaration from the applicant, dated 10 February 2016.

    §  Documents to support the applicant’s protection claims:

    -   An ‘injury report’ from  [Hospital 1], [City 1], dated 5 January (or July) 2013, relating to the applicant’s brother.

    -   ‘To whom it may concern’ letters from [Mr D], [a member of an Australian BNP group, Organisation 1], dated 1 January 2015 and 1 February 2016. These address the applicant’s circumstances in Bangladesh and vouch for his role in the BNP office in Australia.

    -   To the Tribunal, a further letter from [Mr D], dated 14 September 2018.

    -   A letter dated [September] 2018 from [the] Secretary of the BNP, [City 1].

    -   A photograph showing the applicant sitting at a restaurant or function table with two other diners, annotated: ‘Meeting with [BNP] leader [Mr E] who visited [City 2] in [2018]’.

    §  Medical documents:

    -   A ‘To whom it may concern’ letter dated 8 January 2015, from [a]Clinical [Psychologist].

    §  General character reference from [the] Centre Manager and Public Officer of [a community organisation], dated 19 January 2015.

    §  A Protection visa interview (‘Department interview’) held on 16 February 2016, an audio recording of which is on the Department file, and which the Tribunal has listened to.

    §  The Protection visa assessment (‘delegate’s decision record’) of 1 March 2016.

19. The Tribunal also has before it Department file [number deleted] which contains the applicant’s completed protection visa application form, lodged on 1 September 2015. The form refers to an attached statement of claims, but there was no attachment, and the application was therefore found to be invalid.

20. The Tribunal received a pre-hearing submission dated 26 September 2018, which provides updated country information and commentary; extracts from recent ‘RRT [former Refugee Review Tribunal] decisions; and a brief summary of the applicant’s claimed political profile.

21. The applicant appeared before the Tribunal on 2 October 2018, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The applicant’s representative [of] [named organisation] accompanied him to the hearing. The applicant’s spouse [Ms B] and his sister [Ms C] attended as observers. The Tribunal flagged that it may wish to take evidence from the applicant’s sister. However, it did not proceed to so, as it emerged that she had no firsthand knowledge of events in Bangladesh relevant to the applicant’s protection claims (for instance, she was not present in Bangladesh during any of the incidents critical to his claims).

    Non-disclosure certificate – s.438 of the Act

22. The Department issued a certificate under s.438 of the Act, purporting to restrict disclosure of information on folios 57 and 194 of the Department file [number]. Folio 47 is a Department pro forma ‘Identification test: protection visa applicants’ which contains a checklist for Department officers’ use. Folio 194 is an earlier form completed by the Minister’s delegate indicating that there were no documents/information which, in her opinion, should be subject to s.437 or s.438 of the Act.

23. The s.438 certificate states that disclosure of the information on folios 57 and 194 would be contrary to the public interest because they contain information ‘relating to an internal working document and business affairs’. In light of the Federal Court decision in MZAFZ v MIBP[2], which considered a s.438 certificate with similar wording, the Tribunal finds that the certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity. Furthermore, the certified folios contain no information that is relevant to this review.

    [2] MZAFZ v MIBP [2016] FCA 1081, Federal Court of Australia, Beach J, VID 461 of 2016

    Receiving country

24. The applicant claims to be a Bangladeshi national. He brought his most recent Bangladesh passport to the hearing, and presented other documents that link him with Bangladesh. He speaks the national language, Bengali, and has shown his familiarity with that country. The Tribunal is satisfied that Bangladesh is the receiving country for the purpose of assessing the applicant’s protection claims.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility

25. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

26. The Tribunal has a range of concerns about the credibility of the applicant’s claims and evidence. Overall, it found his knowledge of local politics in Bangladesh to be commensurate with that of an educated person who had been out of the country for a lengthy period. By way of contrast, his account of his own activities lacked the kind of detail that a person recalling actual lived experiences might provide. It was generally uncertain, vague and disengaged. Also, he showed no real genuine interest in trying to obtain corroborative evidence to support his claims, for instance, about his brother’s claimed leadership role in the local BNP and the assault that allegedly left him (the brother) paralysed.

27. The applicant’s delay in seeking protection in Australia, more than ten years after first arriving in Australia,[3] is significant. The applicant attributed this in part to the sur place nature of his claims, in particualr (a) that the Awami League was pursuing its political opponents with particular vigour after the 2014 elections; and (b) that his first wife’s family are antagonistic towards him after the couple’s divorce in Australia in October 2012.

    [3] The Tribunal has sourced this information from the applicant’s first Bangladesh passport, a partial photocopy of which he attached to his original application form (including pages with entry and departure stamps), and from the exchange at hearing.

28. However, as discussed at hearing, the applicant claimed that his political opponents tried to attack him as early as 2007; the AL government was first re-elected in December 2008, and reportedly pursued its opponents from that time; and the applicant presented a serious incident in which AL members attacked and maimed his brother in early 2013, allegedly for reasons linked with the applicant’s own claims. He also claimed that AL members have also been threatening and demanding money from his family since the divorce in 2012. In other words, the lodgement of a protection visa application in September 2015 still represents a significant delay after the applicant claims to have first realised that it was unsafe for him in Bangladesh.  

29. The applicant told the Tribunal that he has applied for multiple visas in Australia, including after the divorce in 2012 and the consequent cancellation of his visa. Asked why he had not applied for protection earlier, he commented that he was not familiar with Australian migration law (even though, the Tribunal notes, he was obviously able to arrange other kinds of applications). It is clear that non-citizens may rely on the advice of others or their own impressions, and may therefore not have a good understanding of their options. However, in the Tribunal’s view, the applicant’s lengthy delay in seeking protection raises doubts as to whether he genuinely fears persecution or significant harm in Bangladesh, or whether this application is merely another option to secure permanent residency.

    Mental health issues

30. Neither the applicant nor his representative raised any concerns about mental health issues that affected the conduct of the hearing, or the Tribunal’s assessment of the applicant’s protection claims. The Tribunal nonetheless discussed these matters with him, in light of material on the Department file.

31. The applicant had presented a letter from [a] clinical psychologist, dated 8 January 2015. The applicant had had six consultations with her as of that date. She opined that he ‘appeared to be suffering from [a specific condition]’. She described this as ‘symptoms of anxiety, depression, despair and withdrawal in reaction to exceptional physical and/or mental stress’. She noted that the mental illness usually resolves itself if the significant stressors are removed, i.e. if the applicant had been granted a visa to remain in Australia. The letter seems focused on the applicant’s need for a partner visa (based on his relationship with [Ms B]), although [the psychologist] also mentions having sighted a statutory declaration in which he gave reasons for being unable to return to Bangladesh. At hearing, the applicant could not remember how many times he had seen [the clinical psychologist]; he thought between five and ten.

32. The applicant told the Tribunal that he saw another psychologist some four or five months ago. He said that he was referred to one doctor, and then another; and that he had had five or six counselling sessions with the new psychologist. It was difficult to follow the applicant’s account of his recent interactions with medical experts, but he mentioned that one counselling session had costs $250 (implying that he had not proceeded with that proposed visit). He gave the impression that he had visited two GPs, with a view to obtaining a ‘referral’ (presumably a GP mental health treatment plan, as an alternative to paying out of pocket for counselling sessions). In any event, he provided no details or supporting documents concerning recent consultations. He also did not claim to have any ongoing mental health issues that potentially support his protection claims (such as the genuineness or his claimed fears in Bangladesh), or that raise matters about his capacity to present his claims and evidence at hearing.

33. In sum, the Tribunal has extensive concerns about the credibility of the applicant’s claims, and his need for protection in Australia. These cast strong doubt over the entirety of his protection claims. The Tribunal nonetheless considers it appropriate to assess them, in order to confirm whether there are any circumstances that may give rise to protection obligations.

    ASSESSMENT OF CLAIMS AND EVIDENCE, AND FINDINGS

    Political involvement in the BNP

34. The applicant claims to be have been a member and office-bearer in the JCD from about 1994 to 2005, and to be a supporter of the BNP.

    In Bangladesh

35. Political views: At hearing, the applicant explained his attraction to the BNP with reference to its founder former President Ziaur Rahman, and his [Zia’s] efforts to establish democracy and freedom of the press. He gave examples of the BNP’s achievements, such as the construction of canals and the establishment of the South Asian Regional Cooperation (SARC) group. In a similar vein, at the Department interview, he mentioned the BNP’s policies with respect to religion, nationalism, democracy and social welfare, and its achievements in areas such as women’s rights, education, food distribution, clothing, housing and sanitation. As for the party’s and his views on Islam as the state religion, the applicant commented that the majority of the population is Muslim, and so these values should inform the society. In the Tribunal’s view, the applicant’s comments related to broad policy and platitudes, which shed little light on his actual political commitment. This is unsurprising given his prolonged absence from the country.  

36. Family background: The applicant claimed that his family background also influenced his choice of party, as they were well-known BNP supporters.

1. In particular, his brother, [a named person] had been a senior BNP member. At hearing, the applicant initially described his brother’s position as [Position 1] of the BNP in [City 1], but corrected this to state that he had been [in Position 2] of the [City 1] Corporation. He also said that his brother was a businessman who [did a particular job]. Asked how his brother juggled these responsibilities, he explained that he (the brother) had been active in politics for many years. He did not have any documentary evidence to show that his brother had held such a position, or any references to him. The applicant said that his father supported the BNP, but only he (the applicant), his brother and an uncle were actively involved in the party and its associated groups.

2. The applicant provided no persuasive details or corroboration to support his claims about his family’s, or even his brother’s, involvement with the BNP. Nonetheless, the Tribunal notes that the BNP is one of Bangladesh’s two main parties, that [City 1] is regarded as a BNP stronghold, and that the BNP ‘has been more conservative, anti-India, urban-based and more accommodating of political Islam’[4] than the AL. These factors tend to support the applicant’s claim that his family at least prefer the BNP, and that this in turn influenced his political leanings. However, there is minimal evidence to indicate that his family has any political profile, for instance through his brother’s role as a ‘senior BNP member’ or office-holder.

   [4] See, for instance, Department of Foreign Affairs and Trade, Bangladesh – Country Report, February 2018

3. The applicant’s activities and profile: The applicant claimed that he took part in a range of BNP political activities in [City 1], which also gave him a local profile as a BNP activist.

4. He claimed that he joined the JCD in around 1994/1995, initially as a general member and supporter. He said that he stood for election in the College Union, as an Assistant Secretary, but was unsuccessful. At hearing, he alluded to there being different factions within the JCD, and inferred that he did not secure the JCD’s nomination as a candidate for the College Union position.

5. The applicant claimed that he nonetheless gained a local profile through his activities. For instance, as a JCD member, he used to recruit new members, call on businesses to seek donations, and help organise meetings and election campaign activities. While the applicant enumerated various activities, the Tribunal found it difficult to gain any real insights into what these entailed, and there was no corroborative evidence from that period of claimed activism.

6. The applicant gave as one example that, in the 2001 parliamentary elections, he campaigned for the local BNP member, [Mr F], who defeated his AL rival [a named person]. The applicant said that he used to participate in campaigning, taking the candidate door-to-door. He later clarified that this did not mean that he acted as [Mr F]’s direct assistant, but rather that he was part of a larger group who accompanied [Mr F] on such activities. This also suggested that, even at face value, the applicant’s role as a general member was confined to group activities and not the kind of responsibilities that might establish a profile.        

7. The Tribunal noted the applicant’s earlier advice that he and his friends had benefitted by having local labour hire contracts awarded to them, through local political connections (presumably BNP contacts). It wondered why, if he was politically active, he had left Bangladesh during a period in which the BNP was in power. In response, he said that he was doing well, but he had deferred to [Ms A]’s wish to study abroad. As noted elsewhere in this decision, the Tribunal has some reservations about the genuineness of this relationship. In any event, it considers that the applicant’s departure from Bangladesh at a time when the BNP was in power raises some questions about the extent of his political commitment to that party, and his ambition at that time. Moreover, an absence abroad inevitably reduces a person’s ability to remain involved in local activities, maintain contacts and stay abreast of political developments, and hence sees any political profile reduce over time.

8. The applicant presented a letter from [the] General Secretary of [City 1] Mahanagar (Metropolitan) branch, dated 10 September 2018. This states that the applicant joined the BNP in 1994; he was until 2004 an ‘ordinary senior member’ of the BNP’s student wing (which the author mixes up with the youth wing, Jatiyatabadi Jubodal (JBD)); and that he used to temporarily hold senior positions while other leaders were on leave. The applicant told the Tribunal that his mother and his brother arranged for the letter.

9. The Tribunal notes that the letter goes somewhat further than the applicant’s own evidence, insofar as it states he was an ‘ordinary senior member’ and that he was sometimes acting in more senior positions. It lists a range of duties that the applicant performed, such as collecting donations, recruiting new members, undertaking publicity and campaigning, providing student welfare and arranging protests. Again, taking into account the broad nature of these activities and the passage of time since the applicant allegedly undertook them, there was little scope for the Tribunal to seek further details.

10. The letter was written many years after the applicant’s last active work, and therefore is of much less probative value than, say, materials from that period. Also, by the applicant’s own evidence, it was produced at the request of him or his relatives. Country information discussed at hearing indicates that document fraud in Bangladesh is prevalent, and that officials or political figures are reportedly willing to write letters at request (or upon payment) to assist local people, irrespective of whether they know  or have been able to verify the truth of the contents.  Against this background, the Tribunal places minimal weight on this letter as independent corroboration of the applicant’s claims.  

11. The applicant, responding to the Tribunal’s observation that [the General Secretary's] letter appeared to show the BNP’s presence and operations in [City 1], added that [a BNP member] is mayor of [City 1]  and head of the [City 1] Corporation. He went on to observe that certain high profile leaders in the BNP (and all parties) have managed to hold on to senior positions, but that does not mean that activists and workers can safely work there.

12. The Tribunal explored with the applicant whether he had contemporaneous evidence from his ten-year period of claimed activities with the JCD, such as photographs, correspondence or similar material. He did not present any such material, or demonstrate interest in trying to obtain them.

13. In sum, the Tribunal accepts on the basis that it is plausible that the applicant prefers the BNP, taking into account among other things that the BNP enjoys fairly strong support in [City 1] generally, his family’s location in the main city, and his background. It notes, too, that the applicant appeared to be reasonably familiar with general political developments in [City 1], despite his prolonged absence from the area. However, his evidence about having been a JCD member and potential candidate for an executive position at his college, and about having undertaken a range of activities for the local party, is very thin. (The Tribunal returns to this, and makes findings of fact, after considering the applicant’s activities since his arrival in Australia in 2005.)

    In Australia

14. The applicant claims to have participated in activities of a BNP-affiliated group in Australia, [Organisation 1]. At hearing, he said that since arriving in Australia in 2005, he has regularly attended gatherings with this group such as national celebrations. He said, in response to the Tribunal’s questions at hearing, that he receives a printout of an annual schedule of events, and sometimes people call to ask him to attend an event. The applicant said that his actual involvement is limited because he is often busy working.

15. The applicant submitted to the Department and the Tribunal three letters from [Mr D], written in January 2015, January 2016 and September 2018 respectively. [Mr D] wrote in January 2015 that the applicant has been involved with the group since December 2005, and is an ‘active member’ who helps organise special events. In February 2016, he added that the applicant recently played a ‘major role’ in organising some processions and a prayer session. In September 2018, he wrote that the applicant had organised and participated in a peaceful demonstration against the visit of Prime Minister Sheikh Hasina, and had attended other events.

16. The Tribunal places very little weight on these letters as independent corroboration of the applicant’s involvement with any BNP groups in Australia, or the extent or significance of this activity. [Mr D]’s letters are vague. In the absence of further detail or supporting evidence, they have the character of generic statements intended to assist well-wishers.    

17. The applicant provided a single photograph showing him at a restaurant dining table (with place settings, but no food) with two other men, annotated ‘Meeting with [BNP] leader [Mr E] who visited [City 2] in August 2018’. Apart from the applicant, one of the persons in the photograph is an older man in smart casual attire, and the other is a young man with a smartphone or camera. It is not possible to tell from the photograph whether the group ate together, or had any further interaction.

18. Asked whether he had any other evidence of his claimed involvement in BNP-affiliated groups in Australia since 2005 – such as photographs, membership or similar correspondence – the applicant said that he is not technologically savvy, and does not take photographs. He did not express any interest in exploring whether such evidence might exist (such as photographs or other materials that friends might have to hand), and the Tribunal did not press the issue.

19. In sum, the Tribunal considers the applicant’s claims and evidence in relation to his BNP-related activities in Australia to be scant and somewhat unreliable. The presentation of just one photograph, and three letters from one individual, leaves the Tribunal unsatisfied that he has participated in activities since 2005. The Tribunal finds that he has had minimal contact with BNP-related groups in Australia, and that he engaged in this conduct (contacts with [Mr D] and his association, and the photograph in a [City 2] restaurant) solely for the purpose of strengthening his claims to be a refugee (and hence within the scope of s.91R(3)).

20. Taking all of the applicant’s evidence about his activities and interests in both Bangladesh and Australia together, the Tribunal finds that he may prefer the BNP and support the party in elections. It accepts that he and some friends might have played on this to obtain labour hire contracts, by way of political patronage. However, it does not accept that his political opinion extends beyond a general preference. It does not accept that he was a member of the JCD at college, or that he was associated with the party proper, or that he undertook activities such as organising meetings, campaigning or anything similar. Similarly, it does not accept on the available evidence that the AL or anyone else perceived him to be a political opponent (that is, an activist or a member of any BNP-linked group), or that he had any political profile, including through his brother or other family members.

21. Given the extent of the Tribunal’s concerns about the applicant’s own claims, and the paucity of supporting detail and evidence, it also does not accept that the applicant’s brother was a senior BNP member, including [Position 1 or Position 2], in [City 1] or, more specifically at [City 1] Corporation.

    The applicant’s marriage to [Ms A]

22. The applicant was vague at the hearing as to when he married [Ms A], estimating that it was in about 2003, although other evidence indicates that it was in June 2004. He confirmed that she was the main applicant in their successive [Temporary Visa 1] applications, and he came to Australia as her dependant. He told the Tribunal that the wedding ceremony and celebrations were held at her family’s home in [City 1], about 2 km, or 25-30 minutes by rickshaw from his family home.

23. The applicant said that his and [Ms A]’s families got to know each other, and both sides were present at the wedding, except for his sister in Australia. The applicant said that wedding photographs were taken, but he did not offer to show the Tribunal these, or any similar evidence.

24. The Tribunal noted the applicant’s claims that [Ms A]’s family were prominent AL supporters, and he and his brother were well-known for their BNP activities (the latter [in Position 2]). It queried whether this had caused any discussion or tension at the time. The applicant explained that both sides knew of these political differences, but these were not an issue. He implied that the point of contention was the later marriage break-up, and that it was at this point that  [Ms A]’s family brought their political influence to bear.

25. The applicant said that in 2009, in Australia, he discovered that [Ms A] was having an affair with another man. According to his statutory declaration of February 2016, the couple were applying for permanent residency around this time. The applicant told the Tribunal that he discussed this issue with his family, and also alerted his mother-in-law to the couple’s marital problems. He wrote in his statutory declaration: ‘I wanted to file for a divorce and go back to my country, but my ex-wife’s family was threatening me and my family not to do that and told me that I should wait until our PR application was finalised’. In 2012, [Ms A] filed for divorce in Australia, and this was finalised in October 2012.

26. The applicant claims that his last contact with [Ms A] was sometime during 2012. She sent the police to him with an Apprehended Violence Order. He has not seen her since that time, and is not sure whether she is in Australia or Bangladesh.

27. The Tribunal accepts that the applicant was married to [Ms A]. There is minimal evidence to support the relationship as being genuine, although the Tribunal takes into account that the applicant’s and his representative’s focus in this review has been his claims for protection (rather than demonstrating his first relationship). Of some concern is the applicant’s comment that even in 2009, when the relationship was in trouble, one or both sides was keen to conceal this and present them as a couple, with a view to securing permanent residency in Australia. Nonetheless, the Tribunal accepts for the purpose of this decision that the applicant and [Ms A] were in a relationship that has now ended. There is minimal evidence about the circumstances of the breakdown and divorce, apart from the applicant’s summary. The Tribunal accepts that [Ms A] obtained an AVO in Australia at one point. However, given the paucity of evidence and the Tribunal’s already strong concerns about the applicant’s credibility, it does not accept at face value that [Ms A]’s family was angered by the divorce.

    Adverse experiences in Bangladesh

28. The above adverse findings, in relation to the applicant’s claimed political profile (and that of his brother and family) casts doubt over all his claims to be a person of adverse interest to the AL government and its agents and supporters. The Tribunal’s concerns about the relationship with [Ms A] add to these doubts. The Tribunal nonetheless proceeds to assess his claims, for completeness.

29. The applicant told the Tribunal that he did not really experience problems prior to his departure from Bangladesh, even in the period after 1996, when the AL was in power. He noted that the parties’ student wings were engaged in fighting, but this did not involve or affect him personally. Country information about the JCD and its rival student wings indicate that political violence, for political and criminal reasons, is rife. A study from 2014[5] captures the sense of this.

    Violence […] takes places in colleges and universities between student fronts of various political parties. Control of campus is the motivation for this type of violence as the group that controls the campus gains the right to extort money and indulge in other illegal activities. More importantly, control of educational institutions open doors for these student leaders to graduate into major national leaders when they can aspire to get nomination for parliamentary seats. 

    [5] Rounaq Jahan, Political Parties in Bangladesh, CPD-CMI Working Paper Series.

30. The Tribunal accepts that the applicant witnessed or heard of such violence on the college campus, or in the local area. His advice that he was not involved or directly affected is consistent with the Tribunal’s finding above that he was not, in fact, a JCD member or office holder.

31. Return visit to Bangladesh in 2007: The applicant claimed that in mid-2007, when he returned to Bangladesh for just over a month to visit his unwell father, AL thugs tried to attack him. The caretaker government was in power at the time. In summary, his claims are:

    §  One day, he was visiting his mother-in-law in [City 1] City. She lived some 20-30 minutes away by rickshaw, a few km. A group of young men arrived unexpectedly, on three or four motorcycles. The applicant estimated at hearing that there were about five, or perhaps as many as eight, men in total. He did not know who these men were, but he later learned from his brother that they were AL cadres. Asked how his brother knew the identity of these men (as he had not witnessed the incident), the applicant then said that it was his mother-in-law who told him. He explained that he went back to her place later, and she told him that she had recognised the men as young AL cadres.

    §  As the men arrived at her home, his mother-in-law noticed them and directed the applicant out the back door so that he could escape.

    §  The applicant’s mother-in-law told the men not to chase the applicant, and they complied. The applicant said that these were low-level AL cadres, and his mother-in-law influenced them because the family is well-connected with the AL. The applicant suggested that this gave him the chance to run away but also, it allowed him to continue his stay and even visit his mother-in-law again, safe in the knowledge that the local AL cadres would leave him alone for the time being.

    §  The applicant said that the men came after him because of his profile in the BNP, but they did not realise that he was married to [Ms A]. The Tribunal signalled its disquiet with aspect of this claim, such as how it was that they knew of his political profile, but not his (alleged) marriage into a family of prominent AL supporters. It also signalled its doubts about his mother-in-law’s ability to stop AL cadres pursuing him (even if, as claimed, they were low-level activists).

    §  The Tribunal noted the applicant’s comment that he later returned to his mother-in-law’s home during his stay, even though he could not have known at that time whether the young men would follow her instructions. It asked if he had changed his accommodation arrangements in [City 1], or his return travel to Australia. The applicant intimated that he did not need to do so, as his mother-in-law had managed to secure his safety.

32. The Tribunal does not accept that there was any such attempted attack. It takes into account the following:

    a)    its finding above that the applicant was not involved in the BNP or JCD before his departure from Bangladesh;

    b)    the lack of any credible context, such as why local AL people would pursue him after his absence from Bangladesh for several years, and while the caretaker government was still in power;

    c)    the changeable and illogical aspects of his evidence, such as the number of men who attacked him, and his willingness to return to his mother-in-law’s after the attack (given that he could not have known for sure that the AL cadres would comply with her instructions not to attack him; and

    d)    his subsequent conduct, including his continued stay in [City 1], his failure to bring forward his departure from Bangladesh, and his failure to seek protection earlier in Australia.

    Political and family-related incidents in Bangladesh since 2007

1. The applicant claims that there have been several incidents since 2007 that lead him to conclude that the AL government and its agents have an ongoing adverse interest in him.  Some of these appear to be for political reasons. Others appear to be linked with the antagonism of [Ms A]’s family towards him, after the couple’s divorce in October 2012.

2. Father’s death: The applicant’s father died in 2012. He claims that he was unable to return to Bangladesh to attend the funeral, fearing arrest by the government or attack by AL cadres. The applicant said that his sister also did not return to Bangladesh. The Tribunal has few details as to the circumstances of the father’s death, although at face value he appears to have been unwell for a long period, given the applicant’s claim that he returned to Bangladesh in 2007, after his father had been given just weeks to live.

3. The Tribunal accepts that the applicant’s father died in 2012, and that the applicant did not return to Bangladesh even though he would have preferred to do so. However, it finds that the applicant has not given a complete and truthful account of the reasons why he did not go back. First, the applicant’s failure to seek protection earlier suggests that fears for his safety in Bangladesh were not foremost in his mind at that time. Second, his other evidence suggests that he was preoccupied with other matters, such as problems with [Ms A] and the impact this would have on their applications for permanent residency. These, together with the adverse credibility findings above, lead the Tribunal to disbelieve that the applicant stayed in Australia rather than returning to Bangladesh, for fear of his safety.

4. Threats from [Ms A]’s family: The applicant claimed that the couple’s divorce in October 2012 angered [Ms A]’s family, as he had ‘ruined [her] honour and reputation’. The backdrop to this was that he claimed to have discovered [Ms A]’s infidelity in 2009. Although he contacted his mother-in-law to explain the situation, she preferred to believe her daughter’s version of events, in which the applicant was to blame.

5. The applicant claimed that [Ms A]’s family had strong AL connections, and hence influence with the ruling party. Although they had not objected to her marrying into a BNP family, they could now harness their influence in the AL to put the applicant and his family under pressure, and in harm’s way, and more specifically, to demand extortion money.

6. The applicant had initially claimed that one of [Ms A]’s uncles, [Mr G], was a leader of the AL’s student wing, the Jubo League, and another close relative, [Ms H], was an AL member of parliament. At hearing, the Tribunal asked the applicant for further details. He said that [Mr G] was a paternal uncle, but he was not sure how many brothers her father had (and hence, the family composition). As for [Ms H], he said that he is not sure how they are related, but he thought that they were distant (rather than close) relatives. However, he added, that they had close friendships with her family.

7. The applicant claimed that [Ms A]’s family made extortion demands on his family, namely the return of $A 50,000, an alleged dowry payment (which, in fact, he said they had never made). The Tribunal asked for details as to the timing of these demands, such as whether they started before or after his father’s death in 2012 (which, in turn, might indicate whether any demands were linked to the couple’s Australian divorce in October 2012). He replied that he was unsure of the timing. In response to further questions, he said that for about three or four months, young men came by his family home on motorbikes, once or twice a week, harassing his family and demanding money. They were abusive and made threats involving the applicant. At hearing, he claimed that his mother tells him that a group of four or five men continue to come by the family home and threaten her, to the present day.

8. The applicant also suggested more broadly that [Ms A]’s family may have been involved in other ongoing ‘severe threats’ to him and his family. In other words, they might have had a hand in the AL’s subsequent threats and attacks, although, it is inferred, it would be difficult to ascertain this with any confidence.

9. The Tribunal asked whether the applicant had considered seeking protection in Australia at that time, in light of these threats. He replied obliquely that he needs protection now, not just because of the threats from [Ms A]’s family, but also because of the ongoing deterioration in the political climate, as reported in newspaper articles. He also said that, at that time, he did not know much about protection.

10. The applicant stated that he currently does not know [Ms A]’s whereabouts, i.e. whether she is in Australia or Bangladesh, or elsewhere. He has not made any enquiries since the [Police] handed him an AVO in [City 2] in 2012, forbidding any contact with her. The Tribunal put to the applicant that his lack of knowledge of or enquiry about [Ms A] was problematic. In response, he stated that he is now married to [Ms B]. He reiterated that he was subject to an AVO in October 2012. Asked whether he has made any enquiries about her family through mutual friends, his own family (they live close by) or BNP colleagues, he replied that he is not interested in [Ms A], and only knows that ‘they’ (the AL cadres or others seeking repayment of the alleged dowry) still go to his home and threaten his family. The Tribunal considers the applicant’s response to be unpersuasive. In its view, [Ms A]’s circumstances – for instance, whether she has re-married, her whereabouts and whether she or her family have any ongoing reason to resent him – would be of great interest to the applicant, if he were genuinely worried about the family’s motivation to pursue him. This undermines his claim significantly.

11. Given these concerns, the Tribunal does not accept that [Ms A]’s relatives or any AL cadres or others acting on their behalf, have made extortion demands of the applicant’s family; that they continue to harass or threaten them or the applicant; or that there has been any similar harm.

12. Assault of his brother: The applicant claims that in January 2013, AL members and supporters attacked and stabbed his brother, [a named person], leaving him with life-threatening injuries. He is now disabled (the applicant implied that he is completely immobile).

13. At hearing, the applicant said that a group of people attacked his brother, leaving him permanently incapacitated and needing ongoing personal assistance. As for the link between the incident and the applicant’s claims (he had been out of the country for more than five years at that time, and it was more than seven since his first departure), the applicant said that the attackers had said many things during the attack. They had mentioned the applicant by name and other family members, and their support for the BNP.

14. The applicant said that his brother continues to live in the family home in [City 1], despite the attack. He said that his brother needs personal care, and the AL no longer regards him as a threat to their political interests. Moreover, the applicant’s sister-in-law has held a good position for some 20 years. In response to the Tribunal’s questions, the applicant said that his brother mainly draws income from rental properties that he owns in the area.

15. Asked whether the family made a complaint about the attack, the applicant said that they approached the police but they refused to provide assistance. In response to questions about any complaint or statement in which, for instance, the family identified any perpetrators, the applicant said vaguely that there is a written complaint, but he has not yet collected it.

16. The Tribunal has before it an ‘injury report’ from [Hospital 1], [City 1], which records the brother’s admission to the hospital [in] January 2013. In poorly legible English, it states that he has life-threatening injuries, involving deep cuts on his back and his skull. The incident allegedly occurred around 1:30 pm (i.e. six hours prior to his hospital admission). As the Tribunal noted at the hearing, the document bears a stamp and signature dated [in] January 2015. It is therefore unclear whether this document was prepared at the time of admission (and certified two years later), or whether it is the transcription of a purported injury report. The applicant said that he had asked his relatives to obtain this document, but was not sure as to why there are different dates.

17. The Tribunal has a number of concerns about this incident, and its relevance to the applicant.

    §  First, it notes that the applicant’s brother was a businessman with several [businesses], and that the applicant has not provided detail or corroborative evidence to indicate that he held any position with the BNP (including [as Position 2]).

    §  Second, there is some doubt as to the provenance of this document, especially given the uncertainty as whether it was produced in 2013 or two years later, at the request of the applicant’s relatives, to support this application.

    §  Third, the document is silent as to circumstances of the attack, which is not surprising given that it is merely an injury report. The applicant has provided no further references to the attack, such as BNP complaints, media reports or any correspondence from that period. Nor is there any further evidence to indicate that his brother is in fact incapacitated as a result of such an attack. This is relevant, given the applicant’s claims that his brother’s disability makes it impractical for him to relocate from [City 1] (despite ongoing threats from the AL), and yet this also makes it less likely that AL cadres will attack him.

    §  Fourth, the attack occurred some eight years after the applicant first arrived in Australia. The applicant suggested that it could be relevant to him because of his and his brother’s political profiles with the BNP, and also because of his conflict with [Ms A]’s family. It was only when pressed for further details that the applicant recounted that the attackers had talked specifically about the family’s BNP activism, and explicitly named the applicant.   

    §  Finally, this incident, if taken at face value (which the Tribunal does not necessarily do) represents a significant escalation of the threats and violence towards the applicant’s family. It is difficult to imagine that the applicant delayed seeking protection for a further two and a half years if, as claimed, this attack on his brother is of direct relevance to him.

18. On the limited available evidence, the Tribunal accepts that the applicant’s brother was attacked in early January 2013. It is unable to determine the exact circumstances of the attack, such as whether there were criminal, business or other motives. Given its credibility concerns and the applicant’s conduct, the Tribunal does not accept that the attackers were motivated by any political or personal factors that relate to the applicant (such as the family’s alleged BNP profile, or the applicant’s alleged conflict with [Ms A]’s family).

19. Harassment of nieces: The applicant claimed that AL party members targeted and harassed two nieces (his brother’s daughters), one aged [age] and the other in about Year [grade] or [grade]. He told the Tribunal that this was not ‘eve-teasing’,[6] but a continuation of the family’s political harassment and an illustration of the continuing threat to him. He dismissed the notion that the family might be able to relocate, noting that no one wants to leave their place of origin, as their forefathers owned the land and their father is buried there.

    [6] The term used for public sexual harassment or sexual assault of women.

20. The Tribunal considers it possible that the applicant has drawn on some real-life incidents where his nieces or other female relatives have suffered harassment. However, it is concerned that he is exaggerating and misrepresenting such incidents to bolster his protection claims. It does not accept that these are of any relevance to his personal circumstances.

21. Alleged false case filed in 2015: The applicant claims that the police came to his home in 2015, looking for him. They were acting on false charges that the government had brought against him, his brother and his brother-in-law, alleging that they were involved in the 2004 Dhaka grenade attack (which took place at an AL anti-terrorism rally held on 21 August 2004).[7] The applicant said that the police showed his family an arrest warrant, but he did not indicate that there was any other documentation relating to the charges.

    [7] See, for instance: BBC on-line, 22 August 2004: Blasts hit Bangladesh party rally,

22. The Tribunal discussed with the applicant the context for his (alleged) inclusion in such charges, and what follow-up there has been in the meantime. He said that this is part of the government’s ongoing campaign against the BNP. In relation to his own family, their main interest is his brother (given his past political profile), but they are also after the applicant as a BNP supporter. The police now come by his family’s home regularly, demanding money. AL cadres do likewise. The applicant wrote that his brother-in-law was included in the false charges, and he fled to [Country 2] in response to this. At hearing, the applicant confirmed that his brother-in-law is working in [Country 2]. Given the extent of the Tribunal’s concerns about the applicant’s credibility, the Tribunal does not accept the applicant’s suggestion that his brother-in-law fled to [Country 2] to avoid police arrest.  

23. Asked whether other BNP colleagues and counterparts had had similar experiences, the applicant said that he talks to some friends by telephone. He commented that many BNP people were subject to such charges, but they cannot disclose such matters (by implication, they are too afraid to talk about them). He added that some had actually left the BNP and joined the AL (in response to such threats). The applicant appeared to be improvising in his responses, and the Tribunal is not satisfied that he has in fact made any enquiries as to whether the government has brought false charges, especially relating to the 2004 grenade attack, against BNP supporters or activists in [City 1].

24. The Tribunal accepts that the AL government and its agents are known in Bangladesh to use false charges as a means of pursuing political opponents, threatening them with legal action and potential imprisonment. In many instances, the details of the claims – such as whether the accused were present at the location – are of little relevance, as the false charges serve a broader political purpose than securing a criminal conviction. In the present case, the Tribunal finds puzzling why the Bangladesh authorities would opt to link the applicant with this particular incident, or why they would wait so long before presenting false charges. In the Tribunal’s view, the applicant has shown little interest in enquiring about these alleged charges, for instance, checking whether BNP colleagues are similarly affected. There has been little effort to provide further details or supporting evidence. As for any follow-up with his brother, who was allegedly included in the false charges, the applicant said that the police regularly come by to extort money, but implied that there has been no further legal action. In later evidence, however, he said that his brother had actually went to court, a long time ago, but there was no ongoing action against him (perhaps because of his invalidity, and hence his lack of interest to the authorities as a potential troublemaker).

25. The Tribunal also finds the time of these alleged charges, just before the applicant’s lodgement of his protection visa application and some ten years after his last period of residence in Bangladesh, unsettling.

26. Taking all of these concerns together, the Tribunal does not accept that the applicant’s name appears in any false cases relating to the 2004 grenade attacks, or any other criminal incidents. It also does not accept that there are any such charges, or related documents; or that the police came looking for him.

27. Allegations that the applicant’s father was a war collaborator: In his statement of February 2016, the applicant claimed that AL people came to the family home and declared that his father was on the list of ‘war collaborators’. They advised that they would send a letter and confiscate the family home. The family received a letter, though not from the government. They believed that AL supporters had written it.

28. This claim refers to the father’s alleged role as a razakar, that is, one of the Muslim League supporters who fought against Bangladeshi independence during the War of Liberation in 1971. This has become a pejorative term in Bangladesh, equivalent to local collaborators or ‘traitors’, for people who were regarded as Pakistani collaborators and suspected of having committed and/or facilitated acts of violence during the conflict. Razakars and their family members are stigmatised and ostracised, though there is no country information to indicate that family members are subject to significant harm.

29. At hearing, the Tribunal reminded the applicant of this claim. In response, he said that his father had been an active ‘freedom fighter’ (that is, definitely not a war collaborator), and that the allegations were completely false. He said that after his father’s death in 2012, AL people started to come by and intimidate the family, based on this allegation. The applicant said that his family has no enemies, and he saw this harassment as part of the political campaign against them. As noted above, the applicant had earlier stated that the family continues to live in their family home.

30. The Tribunal does not accept that AL cadres or anyone else have harassed his family, or written threatening letters, on the basis of his father’s alleged role as a razakar, either true or fabricated. It reaches this conclusion taking into account its broad credibility concerns, the fact that the family continues to live in the family home and the low priority that the applicant attached to this claim.

31. Ongoing threats and harassment: The applicant said that the threats from government officials, AL cadres and [Ms A]’s family (who were also able to incite AL cadres to pursue the applicant and his family on their behalf) are relentless. He also mentioned that when his sister returned to Bangladesh, she too was attacked and felt unsafe, staying in [City 1] just one night. The applicant presented this as a general illustration of the general security situation in Bangladesh, and did not ask the Tribunal to take evidence from his sister on this point. The Tribunal is not satisfied that any such experience is relevant to the applicant’s protection claims.

32. In light of the above findings, and also taking into account the passage of time, the Tribunal disbelieves and does not accept that there has been ongoing threats to and harassment of the applicant’s family from government officials, AL cadres or others, either in connection with the applicant’s (now-rejected) past role in the BNP’s student wing or with his divorce from [Ms A].

    Assessment – Refugee Criterion

33. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s future conduct, and relevant country information, he has a well-founded fear of persecution for one or more of the reasons set out in s.5J(1) on his return to Bangladesh, now or in the reasonable foreseeable future. In assessing his refugee claims, it disregards his conduct in Australia (namely his contacts with [Mr D] or other BNP persons, such as in a restaurant), as required by s.91R(3).

34. The applicant claims to fear that the AL government; AL members and supporters; and members of his ex-wife’s family will seriously harm him if he returns to Bangladesh.

35. The Tribunal does not accept that the applicant has any political opinion or interest beyond a mere preference for the BNP; or that he has any adverse profile in Bangladesh arising from any political activities there or through his family (including his brother). It also rejects all claims of past harm, including that they seriously injured his brother in 2013, for political reasons linked with the applicant, or that there are false criminal charges against the applicant.

1. The Tribunal also does not accept that [Ms A]’s family have any ongoing adverse interest in him, including for matters of family honour, for extortion demands (the repayment of an alleged dowry) or for any other reasons).

2. The Tribunal found it difficult to engage the applicant on his future plans if he returns to Bangladesh, as he was very much focused on his protection claims and his inability to live there safely. He also stated that he is now married in Australia, and his wife does not want him to return to Bangladesh. The Tribunal considers it likely that he would return to [City 1], where his family continues to live, and seek employment in that city. The Tribunal appreciates that the applicant has been outside Bangladesh for many years. However, the applicant and his representative did not claim, or imply, that this factor gives rise to or contributes to any fears of persecution if he returns there.

3. The Tribunal does not accept that the AL government, AL cadres or others have an adverse interest in the applicant due to any past political activities, family profile or incidents over the past ten years or so. It does not accept that his preference or low-level support for the BNP will motivate him to engage in political activities if he returns to Bangladesh, or that he will need to refrain from such actions in order to avoid persecution. The Tribunal also does not accept that [Ms A]’s family will be motivated to target him for any reason associated with the marriage, or for any political reason.

4. The Tribunal has before it country information about Bangladesh, including political and security conditions, and human rights violations against BNP members and activists. However, in light of the above findings about the applicant’s personal circumstances and prospects, the Tribunal does not consider that these are directly relevant to his case.  

5. In sum, the Tribunal find there is no real chance that the AL government, its agents, AL party cadres or anyone associated with [Ms A]’s family will subject the applicant to serious harm, for reasons of his political opinion, actual or imputed, or any other reason set out in s.5J(1), or indeed for any reason at all.

6. The applicant and his representative mooted that he might be subject to serious harm due to his membership of a putative particular social group, such as ‘members of the Bangladesh diaspora involved in political activities against the Awami League and supporting the BNP’.  This implicitly refers to the applicant’s activities in Australia, which the Tribunal is required to disregard for the purpose of this assessment: s.91R(3).

7. In sum, the Tribunal finds that the applicant does not face a real chance of serious harm amounting to persecution for reason of any political opinion (in this case, his preference for the BNP), or any other of the reasons set out in s.5J(1).

8. Accordingly, the applicant finds that the applicant does not have a well-founded fear of persecution for one or more of the reasons set out in s.5J(1), now or in the reasonably foreseeable future, if he returns to Bangladesh. He therefore does not satisfy the criterion in s.36(2)(a).

   Assessment – Complementary Protection

9. The Tribunal has considered whether on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh.

10. The Tribunal has found above that the applicant prefers the BNP, but has no greater political interest and has not experienced past harm for political reasons; that he is not imputed with a greater profile for any other reason; that his first marriage has not produced ongoing conflict with his ex-wife’s family; that there have been no past incidents (such as an assault of his brother) that are relevant to the applicant’s circumstances; that there are no pending criminal charges against him; and that he does not genuinely fear significant harm. In this assessment, the Tribunal also takes into account the applicant’s contacts with BNP-affiliated groups in Australia, which it finds to be minimal and focused on obtaining material for his protection visa application.   

11. Looking ahead to the reasonably foreseeable future, the Tribunal is not satisfied that that there are substantial grounds for believing that the applicant will face a real risk of being arbitrarily deprived of his life, that the death penalty would be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment; or that he will be subjected to degrading treatment or punishment.

12. Underlying much of the applicant’s claims is a more general concern about Bangladesh’s political culture and the security environment. Under s.36(2B)(c) of the Act, there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The Tribunal is satisfied that the applicant’s concerns about general living conditions in the country are faced by the population generally and not by him personally.

13. Accordingly 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, there is a real risk that he will suffer significant harm: s.36(2)(aa).

    Overall conclusion

14. 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).

15. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

16. 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

17. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    James Silva

    
    

    Member

    ATTACHMENT A – RELEVANT LAW

    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 themselves 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.

    
    

August 2014.