1604736 (Refugee)

[2019] AATA 1116

1604736 (Refugee) [2019] AATA 1116 (18 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1604736

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:James Silva

DATE:18 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 18 January 2019 at 5:25pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – imputed political opinion – BNP supporter – official position in BNP student wing – assault by Awami League – no contemporaneous evidence – politically motivated charges again him – limited information regarding fear of harm – brief BNP activities  in Australia – credibility issues – preference to remain in Australia – secondary applicant – no further claims – decision affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-5LA, 36, 65, 91R, 438, 499

Migration Regulations 1994, 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 applicants are a married couple from Bangladesh, a man in [an age bracket] and [an age] year old woman.

2. The applicants arrived in Australia on [date] October 2014, as the holders of [temporary] visas. They applied for protection (Class XA) visas on 22 December 2014. On 18 March 2016 (notified on 21 March 2016), the delegate of the Minister for Immigration and Border Protection (the delegate) refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

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

4. The first-named applicant attended a Tribunal hearing held on 21 September 2018, and both applicants attended a second hearing held on 30 October 2018.

5. For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed. In brief, the applicant husband claims to support the opposition Bangladesh Nationalist Party (BNP), and to have held office in its student wing, and later its youth wing. He fears that the Awami League (AL) government and its agents will arrest, imprison, mistreat and perhaps kill him on his return to Bangladesh. There is a warrant for his arrest. The Tribunal finds these claims lack credibility, and that Australia does not have protection obligation in respect of the applicant.

   CRITERIA FOR A PROTECTION VISA

6. The issue in this case is whether one or both of the applicants meets the refugee criterion, and if not, whether either or both is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

7. As noted above, the first-named applicant claims to have been a member of the BNP’s student wing, and more recently, its youth wing. He claims that, while in Bangladesh, he has suffered at the hands of the ruling Awami League (AL), through government agents and political activists. This included harassment, detention and mistreatment from the police and security forces, and violence from AL activists. In 2014, he claims that student wing activists twice attacked and assaulted him in his office, and he narrowly avoided arrest by security forces. His opponents have brought politically motivated false criminal charges against him, and he understands he is on a hit list for extrajudicial killings. The applicant claims to have been in hiding, and that he fled Bangladesh for his safety.

8. He fears that the Awami League (AL) government’s security forces will arrest or kill him on his return to Bangladesh, in particular as there is an arrest warrant for him. He also claims to fear that AL activists will attack and harm him, with impunity.

   Background

9. The first-named applicant (‘the applicant husband’ or ‘the applicant’) is a [age] year old man from Alamdanga Upazila, Chuadanga District, in Khulna Division, western Bangladesh. He practices the Muslim faith, and has Bengali (Bangla) and English as his languages.

10. The applicant attended primary and high school in Chuadanga, up to [date]. From [date], he continued his studies in Dhaka, attending [College 1] full-time to [date]. After that, he started a [degree] course, part-time, in Dhaka. From 2004 to 2006, he lived in [Country 1], where studied [a second degree] part-time at [a] University. He returned to Bangladesh, and resumed his [Bachelor] degree, mainly through part-time course attendance and on-line. He completed the degree at another university in 2008.

11. From late 2008, the applicant was involved in various businesses in Dhaka, ‘[Business 1]’, ‘[Business 2]’ and ‘[Business 3]’. (The applicant said that he also devoted some of his time to politics.) At hearing, he gave further details. He set up a small [business] ([Business 1]), which operated till about 2012. He also had a [consultancy] ([Business 2]), which he ran until he left Bangladesh. And he set up a [firm] ([Business 3]) together with a [friend]. The firm had two [projects], which the applicant mentioned in his protection claims (see below). The applicant currently has a 25 per cent shareholder of the company. There are no ongoing projects or business activities, but the company has not been formally wound up.

12. The applicant husband’s parents spend time in Dhaka and in their home village. According to his evidence, they stay with relatives in different places. His father has [a] business, although he is no longer ‘so active’. The Tribunal understood this to mean that the business continues, but his father is not directly involved in its operations.

13. The applicants married in Dhaka in October 2013. The second-named applicant (‘the applicant wife’) is from Munshiganj. She attended high school and [a college] in Mirpur, Dhaka, up to [year], and from then, went to the [University] in Dhaka. From mid-2012 to mid-2013, she obtained qualifications [in a discipline]. She gives her occupation as a housewife and [another role].

14. The applicants hold Bangladeshi passports. The applicant husband said that he had no problem obtaining the passport, but as a political person, he had to pay a fee (much larger than the usual ‘administrative fees’).

15. The applicant husband indicates regular travel for tourism, from 2004 to 2013, mostly in South Asia ([locations deleted]), and some visits to South East Asia. He lived in [Country 1] ([location deleted]) from March to September 2012. At hearing, he told the Tribunal that he went there to explore business opportunities, mainly for [Business 1]. As noted above, he also lived in [Country 1] for two years, from 2004.

16. The applicant said that, in Australia, he has worked in various [workplaces], and the applicant wife works for a [company]. They have no family here, although they have made some friends.

    Evidence

17. The evidence before the Tribunal includes the following relevant material: -

    §  The applicants’ protection visa application forms, lodged on 22 December 2014, including a completed Form 866C for the applicant husband and a completed Form 866D for the applicant wife, as a member of her husband’s family unit who does not have her own claims for protection.

    §  Identity documents:

    -   The applicant’s national ID card and driver’s licence.

    -   Passports:

    §  Photocopies of the applicant’s passports (one issued in [date] 2003; and one issued in [date] 2012, valid to [date] 2017).

    §  At hearing, the applicant presented his latest passport, issued in Dhaka in July 2017, and forwarded through the Bangladesh representation in Australia.

    §  Partial photocopies of the applicant wife’s passports (one issued in [date] 2007, and extended in [date] 2012; a passport issued in [date] 2013, valid to [date] 2018; and a further passport issued in [date] 2014, valid to [date] 2019.)

    §  The applicant’s protection claims are set out in handwritten claims on the application form.

    §  Supporting documents:

    -   Support letter from [Mr B], [an official], Bangladesh Nationalist Youth Party (BNP youth wing) Central Executive Committee, dated [July] 2015 (in English). The applicant submitted a more detailed letter from [Mr B], dated [April] 2017.

    -   Copies of affidavits (transcripts) in Bengali, with English translations:

    §  Complaint dated [December] 2013 addressed to a police officer at [Police Station 1], Dhaka.

    §  First Information Report (translated as First Information Sheet) dated [December] 2013.

    §  Order sheet, Chief Metropolitan Magistrate Court, Dhaka, dated [December] 2013 (the applicant provided two copies of this).

    §  Arrest warrant for the applicant from [Police Station 1].

    §  Country information: The applicant submitted a large volume of country information to the Department and the Tribunal, including at the Tribunal hearing. These included reports from the Bangladesh legal and human rights organisation Ain o Salish Kendra (ASK, its 2015 Annual Report), Human Rights Watch and Amnesty International (the full 2017/2018 Annual Report on Bangladesh); an academic study on extra-judicial killings in Bangladesh; a report on Bangladesh from the Human Rights Committee of the UN International Covenant on Civil and Political Rights, dated 27 April 2017; and various press articles.

    -   There was discussion of the large volume of material at the hearing, and the applicant also provided a printed article showing alleged RAB atrocities. He confirmed that this presented general country information, and did not include any direct references to him personally or to his protection claims.

    §  The Department file includes a copy of a Five Country Conference (FCC) Fingerprint Match Report, indicating that the applicant applied for a [Country 1] visa [in] December 2011 and arrived in [Country 1] [in] March 2012.

    §  The applicant attended a protection visa interview (‘Department interview’) on 17 July 2015, a recording of which is on the Department file.

    §  The delegate’s protection visa assessment record (‘delegate’s decision record’) of 18 March 2016.

    §  Review application form has attached to it a copy of the decision record.

    §  Pre-hearing submission of 19 September 2018, which included a letter of support and country information (listed above).

18. The first-named applicant appeared before the Tribunal on 21 September 2018, to give evidence and present arguments. He advised that the second-named applicant was aware of the hearing, but elected not to attend as she was not familiar with his political problems. The hearing was conducted with the assistance of an interpreter in the Bengali (Bangla) and English languages. Both applicants attended the second Tribunal hearing, on 30 October 2018, with a telephone interpreter. The applicants’ representative [name deleted] attended.

    Non-disclosure letter

19. The Department issued a certificate under s.438 of the Act, certifying that the information in certain folios of Department file [number deleted] was subject to paragraph 438(1)(a), as disclosure of it would be contrary to the public interest. The certificate identified the public interest as being that the folios ‘contain information relating to an internal working document and business affairs’.

20. The certificate relates to the following:

    §Folio 46 is a Department pro forma: ‘Identification test: protection visa applicants’.

    §Folio 47A which includes the name of the interpreter used at the Department interview.

    §Folios 251-252, which includes a Five Country Conference Fingerprint Match Report, indicating that you were photographed and fingerprinted upon arrival at [a Country 1] Airport [in] March 2012.

    §Folio 264 is a completed ‘disclosure decision checklist’, in which a Department officer initially determined that there are no documents/information on the file that should be subject to non-disclosure provisions.

21. The Tribunal wrote to the applicants before the hearing, drawing this information to their attention, and its preliminary view that the certificate is not valid and the information not relevant to the review (although some relevant information was referred to directly in the text of the delegate’s decision). It invited their comments at hearing or at any time during the review. The Tribunal has received no substantive response.

22. In light of the Federal Court decision in MZAFZ v MIBP[1] , 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. The Tribunal notes further that folios 46, 47A and 264 contain no relevant material. Folios 251-252 contain potentially relevant information, relating to the applicant’s travel to [Country 1] in 2012. However, there was discussion of this at the Department interview (as noted in the decision record) and at the Tribunal hearing.

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

    Receiving country

23. The applicants claim that they are nationals of Bangladesh. They have provided copies of their Bangladesh passports, and given documentary and other evidence that is consistent with this claim. There is nothing to suggest that they have any other or additional nationality. The Tribunal is satisfied that they are Bangladesh nationals. Accordingly, Bangladesh is the receiving country for the purpose of assessing the applicant husband’s claims for protection.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility of the applicant’s claims and evidence

24. 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.

25. The Tribunal has significant concerns about the truthfulness of the applicant’s claims. It found much of his evidence to be vague and lacking context. There were significant differences between his written and oral evidence (namely the omission of some serious instances of alleged past harm). Also, the applicant’s conduct, business activities, living arrangements and travel history are difficult to reconcile with his narrative about past political activism and consequence alleged harm.

26. The Tribunal acknowledges that protection applicants may often not be able to provide documentary evidence to support these claims.[2] In this case, however, the applicant claimed to have held positions in BNP offices in the capital Dhaka for many years, but he provided no contemporaneous evidence of this. He explained that opposition activists destroyed all his political paperwork when they ransacked one of his offices in Dhaka in early 2014. The Tribunal addresses this alleged incident below. However, even at face value, the applicant has failed to explain why that office was the sole repository of all of his political records, or to demonstrate any efforts to obtain evidence from other sources (such as political colleagues). In the circumstances, then, the lack of supporting evidence is of concern.

    [2] See, for instance, UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status, para. 196.

27. The Tribunal’s detailed assessment follows.

    Interest and involvement in the BNP

28. The applicant claims that he and his family have always been BNP supporters. His father was a fervent supporter of the party,[3] but did not hold any position. His father’s [uncle], [Mr C], had been [an] BNP Upazila [official] for [named area]. The Tribunal has found many public references to [Mr C], in various capacities, including as [named] municipality [official] and [official] of [a] district unit BNP.[4] The applicant did not corroborate his claimed family relationship with [Mr C], or suggest that he feared persecution or significant harm as a result of any such family link.

    [3] The applicant referred to him as ‘the main supporter’, by which the Tribunal understood him to mean that he was a fervent supporter.

    [4] [Source deleted].

29. Country information indicates that the BNP is one of Bangladesh’s oldest and largest parties, and that it has tended to have a stronger urban and business base than the ruling Awami League. As elsewhere, family tradition often plays a role in determining political allegiances. The applicant’s account is therefore broadly consistent with his claim to favour the party, although it does not shed light on the degree of any political interest or engagement.

30. At hearing, the applicant spoke about politics in Bangladesh, for instance, the BNP’s and his experiences during the caretaker government period (2006-2008). The applicant said that he has a voter ID card, and named the local candidate in the last elections.

    Political activities in Bangladesh

    Student politics and the BNP’s student wing

31. The applicant claims that he became involved with the BNP’s student wing, the Jatiotabadi Chhatra Dal (‘JCD’), and student politics more generally, in 2001. He told the Tribunal that the outgoing committee of [College 1] Chhatra Dal nominated him to be president of the committee, given his prior political background (by implication, his family affiliation with the party). He claimed to have held this position for two years.

32. The applicant said that during this period, he was involved in all the party activities, meetings and discussions; and he worked to motivate college students. The Tribunal had difficulty gaining any more detail or insight into these responsibilities.

    §   Asked whether he had any documentary evidence of this period as a student leader, such as posters, photographs or correspondence, the applicant said that he kept most of the material in his office, and it was completely destroyed in early 2014 when AL cadres attacked his office. A great number of his political and personal records were lost during this attack.

    §   The Tribunal wondered whether political colleagues and friends would have relevant documents, showing that he had occupied the position of JCD president at the college for two years. In response, he said that he had made some enquiries, but his colleagues too face risks, and some are in prison.

33. The applicant said that, after his return from [Country 1] in 2006, he held [an office position] in the Dhaka Metropolitan Branch of the JCD. He continued to study part-time, alongside his political activities for the JCD. He described this as a ‘crucial’ period, as the BNP and other political parties were trying to resolve the political impasse in the lead-up to new elections. Country information indicates that the BNP-led coalition government faced increasing countrywide violence in the run-up to the 2006 national elections, prompting military intervention in January 2007, and the installation of a military-backed caretaker government that remained in place until December 2008.[5]  

    [5] International Crisis Group, Report No. 151, Restoring Democracy in Bangladesh, 28 April 2008; and Report No. 121, Bangladesh Today, 23 October 2006.

34. The Tribunal found it difficult to gain a sense of what the applicant actually did as [a JCD office bearer]. It noted country information that the JCD and its counterpart student wings were often involved in fighting and political violence, and asked the applicant for his perspective on that. He replied that there had been a lot of fighting. The JCD’s political opponents had sometimes tried to stop them from holding meetings, and enlisted police support. The JCD defended themselves, mostly by throwing stones. The applicant’s account seemed to be fairly general, and lacking in specifics.

35. Asked what candidates he and his group supported, the applicant replied that they focused on support for Tarique Rahman, Begum Khaleda Zia’s son (and currently acting leader of the BNP).  In further comments, he disputed that Tarique Rahman is a controversial figure, stating that other politicians had falsely accused him of corrupt activities to further their causes. Again, the applicant’s statements were quite general. He did not offer the kind of insights – such as knowledge of personalities, anecdotes or political dynamics – that might show personal involvement in politics, for instance, as a JCD [office bearer].   

1. The Tribunal noted that the BNP still maintains an office in central Dhaka, and wondered whether the applicant had enquired about or been able to obtain any documents showing his past work. He replied that there had been some photographs of him together with BNP leader Begum Khaleda Zia, and with her son Tarique, but these were now destroyed. He had tried to track down any documentation, without success. He added that BNP people in Dhaka also fear for their lives. The applicant did not present evidence of him having sought such materials; in the Tribunal’s view, he did not appear genuinely engaged in the matter.

2. Asked about his political activities after the AL’s election victory in December 2008, the applicant said that the JCD was inactive from that time – ‘none of us’ could do politics. The Tribunal wondered how, if this were true, [Mr B] had managed to produce letters of support for him (in July 2015 and April 2017). This suggested that the BNP continued to have a presence and engage in political activities, at least in some form. He replied that there were some secretive activities, but they were much reduced. He used to participate in some meetings and processions, but he did not hold any positions.

   BNP’s youth wing: 2012 onwards

3. At hearing, the Tribunal prompted the applicant to also address his claimed involvement with the BNP’s youth wing (the Jatiotabadi Jubodal, JBD) from 2012. He confirmed this, suggesting that he may have misunderstood the Tribunal’s earlier questions. He said that he had been an ordinary member of the JBD’s Central Committee, which shared an office with the main BNP in [Area 1], Dhaka. Asked about access to that office (including any periods of forced closure), the applicant replied in general terms that there were occasions when it was shut.

4. The applicant confirmed at hearing that he had remained active in the JBD through to 2017, and he gave the names of people whom he claimed were on the central committee up to 2017, and the newly formed one from that year. Asked whether he was in touch with them (or had personal contact), he replied vaguely that was in contact with them in the past, but not really now.

5. Again, the applicant produced contemporaneous evidence (such as photographs, correspondence or similar materials) to demonstrate his involvement in such activities. He again referred to the alleged raid on his office in early 2014, destroying his political documents. First, it is difficult to believe that the applicant stored all relevant political materials in one room, and that the attackers managed to locate and destroy all of them. Second, the applicant also did not show any real efforts to obtain materials from other sources, such as (former) BNP colleagues. Third, alleged raid took place some five or six months before the applicant left Bangladesh; and he told the Tribunal that he continued his political activities (albeit secretively) throughout this period. Again, the applicant’s account of this later period of political work remains vague and unsubstantiated.

6. The applicant produced letters from [Mr B], dated [July] 2015 and [April] 2017. [Mr B] describes himself as [an office bearer] of the JBD’s Central Executive Committee, and in the later letter, also [in another position]. The letters, in English, are on what appears to be JBD letterhead. The earlier letter describes the applicant as a ‘general member’ of the JBD’s Central Committee; the latter describes him as having been a ‘youth affairs organiser’ and leader. In considering what weight to attach to these letters, the Tribunal notes country information, discussed at hearing, that document fraud is prevalent in Bangladesh, including instances where officials are willing to sign support letters whose contents are untruthful or unverified. Also, the letters are on simple letterhead, and signed by a person whose identity and position the Tribunal is unable to confirm. Finally, the context of the letter and the applicant’s overall credibility are significant. In the present case, the Tribunal is troubled by the applicant’s vague account of how [Mr B] continues to stay in the JBD office (if he, the applicant cannot); [Mr B]’s changeable accounts of the applicant’s actual role; and (as discussed elsewhere in this decision) broader doubts about the applicant’s credibility. In these circumstances, the Tribunal places minimal weight on these letters as evidence of the applicant’s political interests or profile.   

7. The applicant also referred at hearing to the documentation provided by his political friend [Mr D], [a JBD office bearer] who had allegedly been present during the second raid on the applicant’s office, in early 2014. There is no letter of support from [Mr D]. Rather, he appears to be the person who helped the applicant source the purported court and police documents. The Tribunal is not satisfied as to [Mr D]’s identity or role, and places minimal weight on any written material that [Mr D] has written or provided, as evidence of the applicant’s political interests or profile.

8. The Tribunal notes that the applicant wife also spoke briefly about the applicant’s political profile (and, in more detail, about their subsequent problems). This broadly supports the applicant’s claims, but is of little value as independent corroboration of his claims.

9. The Tribunal asked the applicant about his political interests and activities since arriving in Australia in October 2014, including contacts with former BNP associates in Bangladesh or any like-minded people here. He replies were brief, vague and without supporting evidence. In response to the Tribunal’s questions, he said that he is in touch with former political details, and that he goes to some BNP activities in Australia.

10. Taking all of the above into account, the Tribunal accepts that the applicant prefers the BNP, partly in keeping with family tradition, and that he has some general knowledge about its key personalities, nationally and locally. It accepts that he may have had some contacts with BNP supporters in Australia, but it does not accept that he has participated actively in any political or social events formally linked with the political party. The Tribunal is not satisfied that he has any political interests or engagement that go beyond a general preference, or that he is perceived (by the Bangladesh authorities, or persons associated with the AL) to have any such interests or engagement, in Bangladesh or Australia.

    Adverse experiences in Bangladesh before 2014

11. The Tribunal has found that the applicant has no political interests or engagement beyond that of a person who favours the BNP, and may have voted for them in the elections. This raises serious questions about the credibility of his claims and evidence as a whole. Nonetheless, the Tribunal considers it appropriate to assess whether he has suffered past harm for any related reason.

12. The applicant claims during his work for the BNP’s student wing (JCD), there was regular conflict with the AL’s counterpart organisation, the Chhatra League. For instance, the Chhatra League tried to prevent the JCD from holding meetings; the JCD responded by throwing stones; and the police used to become involved.

13. The situation became more difficult from early 2009, following the AL’s win in the December 2008 national parliamentary elections. The AL prevented opposition political meetings, and many people were implicated in false cases or went missing. Asked about his personal experiences, the applicant said that he had some pending cases against him. He was often in hiding, having to move home and avoid going to the office. He said it was ‘impossible’ to engage in political activities after this. Later, however, he corrected this to say that he did do politics, but only cautiously and at a lesser level.

14. In his written statement, the applicant wrote that the police arrested and imprisoned him quite a few times, and he was physically assaulted and tortured in jail. The applicant did not mention these claims until the Tribunal questioned him about these statements, towards the end of the hearing. He said that these incidents had occurred earlier, probably before 2013. The Tribunal acknowledges that applicants may forget to mention claims in oral proceedings. In the present case, however, the applicant was accompanied by his representative, and had an opportunity to talk about his experiences in Bangladesh in chronological order, in an unhurried manner. It is difficult to believe that he spoke about pending cases and restrictions on political activities during this period, without recalling periods of detention and mistreatment, or the impact of these on his businesses and family life. The Tribunal considers that these written claims are untruthful, and that he forgot to mention them because they did not in fact occur.

15. The Tribunal discussed with the applicant’s his earlier account of having set up various businesses in Bangladesh, from 2008. This investment activity suggested some degree of confidence in economic and political climate. In response, he said that the businesses did not perform well; he was ‘just surviving’. The Tribunal also asked about his travel movements, including his six-month stay in [Country 1] during 2012; it wondered why he did not seek protection there, particularly if (as claimed) he had been subject to pressure and violence. He replied that he had originally intended to visit [Country 1] for only one month, but he prolonged his stay to see whether the situation in Bangladesh would improve.

16. In the Tribunal’s view, the applicant’s responses failed to address its concern that his business investments and travel to [Country 1] (without seeking protection there) reinforce the Tribunal’s finding above that he was not politically active in Bangladesh. Moreover, it leads the Tribunal to disbelieve that he was ever under any direct political pressure prior to 2014. The Tribunal accepts that he may have been indirectly affected or inconvenienced by Bangladesh’s general political instability and violence. However, it finds that he did not suffer from any threats, any restrictions on his political freedoms, false cases, imprisonment, torture or any associated psychological harm. It finds that he did not suffer any harm, including (but not limited to) persecution or significant harm, prior to 2014.

    Experiences in Bangladesh after 2014

17. The applicant claimed that after the 2014 parliamentary elections, student activists attacked him several times, the Bangladesh security forces came looking for him, and he was subject to other pressure and threats, including politically motivated false charges.

    Successive adverse incidents

    Office attack in January 2014 – Student activists

18. The applicant claimed that sometime in January 2014 (hence, shortly after the elections), a group came to his business office in [an area] and attacked him. By way of context, he said that around this time, Chhatra League workers were chasing their counterpart young opponents.

19. On this occasion, a group of young men, perhaps 15 to 20, came to his office (which, at the time, he was using to conduct both [Business 2] and [Business 3]). The applicant recognised perhaps four of them. The men closed the door and sent the other staff, about six or seven people, to another room. The applicant’s business partner was in a separate office at the time.

20. The men attacked the applicant with rods (lathis), injuring his nose, and leaving him with blood and bruises all over. He said that he was admitted to [a] Hospital, where he remained for treatment for about two weeks. Asked for details of the injuries and treatment, the applicant said that he had many injuries, including on his nose and some ‘brain injury’ (by which the Tribunal understood him to mean concussion). The treatment consisted of a saline drip and other treatments; the applicant could not recall further details. In response to the Tribunal’s questions, the applicant said that he had some admission and treatment records from this period, but did not bring them with him (implicitly, to Australia). He had asked an uncle to seek records from the hospital, but he had not succeeded. The applicant added that the owner of the hospital is an AL supporter, and therefore reluctant to help him.

    Second attack several weeks later – Student activists

21. The applicant claimed that after his release from the hospital, he was reluctant to return to his office. Gradually he started attending more regularly. About two weeks later, some men returned to the office, this time with firearms. At the time, [Mr D], [as an official], was with the applicant. The attackers did not recognise him, so he managed to flee the scene.

22. The attackers threatened to kill the applicant. They beat him up badly, to the point where he lost consciousness. They ransacked the office, destroying every single document (and hence, he claimed, all records of the applicant’s political activities). The applicant ended up in the same hospital, and remained there for treatment for about one month. After his release, he continued to receive treatment from his GP. Asked for details of his injuries or treatment, the applicant said that he had bleeding and bruises all over, and the back of his head had been hurting. Again, he submitted no documentation regarding the hospitalisation, subsequent medical treatment or any ongoing ailments.

23. The Tribunal asked if BNP officials or anyone else had recorded this incident, or reported on it. The applicant said that he informed the party by telephone, but they were not able to organise a protest (in other words, they did not publicise or make any record of this incident).

24. The applicant emphasised that this attack led to the destruction of all the documentation relating to his political activity, and his personal documents. The Tribunal enquired about his business documents – for instance, those relating to [Business 3] and [Business 2] – and how he managed that situation administratively. The applicant replied that he mainly kept personal documents in his room. The attackers had destroyed some business papers, and, the applicant added vaguely, he had to do that documentation again.

25. The applicant confirmed that, at this stage, he and his wife continued living at home as newlyweds. He said that there were no problems there, as he had not told his attackers where he was living. In response to the Tribunal’s surprise – as they could easily have followed him from the office, or indeed paid someone to give them his residential address – the applicant posited that they might not have wanted to pursue him to his home. The Tribunal flagged its concern that the applicant appeared to have taken no precautions, despite the alleged gravity of the attacks. It gave some examples, such as changing telephone numbers or travel routes, or hiring security guards. The applicant replied that the office continued to operate, with his usual staff, but he worked out of a different office, about two hours’ drive away (in [Area 1] another part of Dhaka City).

    Third incident – Bangladesh security forces

26. The applicant claimed that the Bangladesh security forces carried out a combined operation on his [Area 1] office. The applicant was unsure when this occurred, but guessed that it was a month or two after the second attack. The Bangladesh Police, Rapid Action Battalion (RAB), Special Branch and Special Forces were all involved. Asked how he knew about the composition of the group, the applicant said that there was a committee in each building (he implied that this was a kind of commercial building management committee). Some committee members spoke to the agents involved in the raid, and they informed them.

27. The applicant said that a peon (guard or labourer) alerted him to the arrival of the agents, and this enabled him to descend an emergency stairwell, before reaching the second floor and jumping from there to the ground. He then sprinted away, to safety. In response to the Tribunal’s queries as to how the committee members, or the peon, would have known that the security forces were coming for him, the applicant said that there were some 200 tenants in the building, but he was the only political leader. In response to further questions, he said that he knew most of the people on the building management committee, implying that they, in turn knew the tenants.

28. The applicant said that he never returned to the [Area 1] office after that incident. To his knowledge, the security agents spoke with people in the office, and damaged some office equipment. They then left.

29. The Tribunal notes that the applicant wife referred to an incident in the office, and the applicant’s need for medical treatment. [Mr B]’s letter of [April] 2017 refers to the ‘dictator government’ trying to torture him, without specifics. The Tribunal has also taken into account a large volume of country information, which refers to Bangladesh’s generally poor human rights record and high levels of political violence. These provide some context for assessing the applicant’s claims, but do not relate to him specifically.

30. Tribunal’s assessment; Country information indicates that the general elections of 5 January 2014 (and the earlier verdicts of the International War Crimes Tribunal) were linked with an upswing in official and societal violence, including against BNP activists.[6]  However, the Tribunal has found above that the applicant has no direct political involvement in the BNP (apart from a general preference for the party), and that the claimed incidents prior to 2014 did not occur. As a result, there is no context as to why student activists and/or Bangladeshi security forces would target him in early 2014. Moreover, the Tribunal’s adverse view of the applicant’s credibility weighs heavily in its assessment of these later (claimed) incidents.

    [6] See, for instance, DFAT Country Report – Bangladesh, 20 October 2014, which the Tribunal refers to because of its proximity to those events.

31. As discussed at hearing, the applicant’s account of these incidents and the supporting evidence are problematic, even as stated. These include the following concerns:

    §  The Tribunal found the applicant’s description of the attacks, and his medical injuries, to be vague, repetitive and lacking in supporting documentation (or credible evidence that the applicant had sought to corroborate these claims). For instance, the Tribunal finds it difficult to believe that a hospital treated the applicant, on the second occasion for about a month, but then denied him any record of his stay – such as admission or discharge notes, receipts for payment, or medical records - on political grounds. 

    §  The applicant’s claimed willingness to return to the same office as the first attack occurred (even if he did so gradually, and two weeks after his recovery) adds to the Tribunal’s doubts. Again, when asked about supporting evidence of this (such as reports from his BNP associates), the applicant responded to a much narrower question, stating only that they had no chance to organise protests.

    §  The Tribunal finds it difficult to believe the applicant’s claim that, on the second occasion, the attackers managed to destroy all his political documents, and some of his personal and business documents; that he managed to retrieve at least some key personal and business documents; but that the political documents are now lost for good. The applicant failed to explain persuasively why all his political papers were in his business office, or why he has been unable to obtain at least some references from political colleagues. The purported letter from [Mr B] and the applicant’s reference to [Mr D]’s efforts cast doubt on his suggestions that his former BNP colleagues are unable or unwilling to help him. Rather, the Tribunal considers that such documents do not and never did exist.

    §  The Tribunal found no persuasive evidence that, even immediately after the second attack, the applicant took precautionary measures. The applicants were newlyweds, and continued living in their home. The applicant’s comments at hearing - such that his attackers did not know where he lived, and he also had an office in a different location – strongly suggested that he had not in fact turned his mind to the issue of precautions, and had no need to do so.

    §  The applicant’s account of the third attack is also highly problematic. The Tribunal finds it difficult to believe that a peon (guard) knew all 200 tenants of a large building; that he knew the applicant was the only ‘political leader’; that he saw security forces approach the building and knew or surmised that they were coming for the applicant; and that he had the presence of mind to alert the applicant that he needed to escape.

1. Taking together the Tribunal’s general concerns about the applicant’s credibility; its finding that he had no adverse political profile; its finding that he did not experience any harm prior to 2014; and the specific concerns immediately above, the Tribunal disbelieves that the applicant was subject to any attacks in 2014, in either of his offices ([locations deleted]), at the hands of student activists or any of the Bangladesh security forces. It does not accept as truthful these claims, or any of the associated claims (such as the need for medical treatment; any difficulties in obtaining such treatment; any restrictions on political activity; and any psychological impacts, such as living in fear for himself or his family).

   Subsequent events

2. The applicant said that, after the third attack, he continued his business activities, mostly by telephone. He also used to go to the BNP office in [location], for instance to meet with opposition leader Begum Khaleda Zia. In later comments, he clarified that he used to meet with her, together with other political people. As for any corroborative material, he said that he had asked some political friends whether they had photographs of him together with the leader, but they had been unable to find any. As for communications with political colleagues, including through social media, the applicant replied briefly that these would be on his mobile device, which is in Bangladesh.

3. Some five or six months passed before the applicant’s departure from Bangladesh. He told the Tribunal that he concentrated on meeting BNP colleagues in [location], and discussing what options might remain for them to pursue their political agenda.

4. At the second hearing, the applicant wife described the family receiving threatening telephone calls, moving around to various relatives’ homes (in Dhaka and other locations), and a general sense of fear. She mentioned that the applicant had also been subject to false cases (hence, a clear reference to the period after the third attack), and she appeared to be talking about the period before the applicants’ actual departure from Bangladesh.

   False cases

5. The applicant claimed that it was during this period that he learned that the authorities were trying to implicate him in false cases. The charges related to a procession that he and BNP colleagues had organised and participated in, and an arson attack that occurred during the protest. He could not recall details of the incident, but said that it involved some 60 or 70 people near [a landmark] in Dhaka. Asked for details of the alleged offences, and how he knew about the false charges, the applicant said that he and other leaders obtained documents that included the names of other leaders from [other local areas]. The applicant confirmed his claim that there was also an arrest warrant out for him, but he was not sure as to when he had discovered this.

6. The applicant wife also mentioned briefly in her evidence that the applicant was subject to false cases.

7. The applicant provided a number of documents to support these claims. These are Bengali language texts on affidavit paper, with English translations. The texts were certified on 14 November 2015 by the ‘Chief Comparer’ (name illegible) as being true transcripts of the original texts. They are, in summary:

   §   Complaint dated [December] 2013, by a police officer claiming that [in] December 2013, a BNP protest against came to [a specific landmark]. The accused destroyed various vehicles, and threw bricks and Molotov cocktails. The police arrested two protestors, who stated that they were acting on the applicant’s instructions.

   §   A First Information Report (FIR) dated [December] 2013 alleging that the applicant and seven other men committed criminal offences at [a specific landmark], some [distance] from the local police station. There is no description of the offence, merely reference to provisions of the Bangladesh Penal Code (these relate to offences like unlawful assembly, inflicting harm and grievous bodily harm, including on public servants, and wilful property damage).

   §   Two order sheets from the Chief Metropolitan Magistrate Court Dhaka, dated [December] 2013. One notes that the applicant (and five other accused) failed to appear in court; another instructs that a warrant be issued for the arrest of him and the other accused persons who failed to appear.

   §  An arrest warrant from the local police station, undated.

8. At hearing, the applicant said that he sent a friend to collect these documents from the police station and the court. Initially he was unsure whether the Bengali language texts were copies of the original documents, or transcripts. Initially, he thought that they were copies of the originals, but he later acknowledged that FIRs and similar documents are usually completed on standard pro formas, and therefore these appeared to be transcripts. He said he could try to obtain photocopies of the original documents, but the Tribunal has received no further documentation relating to this.

9. The applicant said, in relation to the charges, that he and some friends had organised a protest without permission, and they did indeed throw bricks around [a specific landmark]. He said that this had occurred earlier, but was not sure when. (According to the papers, it occurred one week before the national elections on 5 January 2014.) The Tribunal put to the applicant that, if he had been present at the protest and thrown bricks, the charges were perhaps not false at all. During the course of the exchange, the applicant explained that the ruling AL and the police were working together to bring politically motivated charges against the opposition (implying that the statements of fact might not be entirely fictitious, but that they would not ordinarily result in criminal charges).

10. The applicant said that he did not learn about the charges until much later (hence, by implication, after the claimed attacks in the first half of 2014).

11. The Tribunal has considered the following factors in assessing this claim and the purported police and court documents:

    §   First, there is abundant country information (including in the materials provided by the applicant) that the ruling AL and its agents have used politically motivated false cases to intimidate and punish political opponents.

    §   Second, country information indicates that there is a high level of document fraud in Bangladesh, including the falsification of official documents. In the present case, the Tribunal only has before it purported transcripts, prepared in January 2015 and supposedly certified by a ‘Chief Comparer’ on 14 November 2015. Although the applicant expressed interest in obtaining photocopies of the originals held in the police station and court, the Tribunal has received no such documents. In the Tribunal’s view, the Bengali language texts are of minimal probative value. Without copies of the originals, it is not possible to assess the accuracy of the transcripts, let alone make a further assessment of the genuineness of the originals.

    §   Third, the applicant’s vagueness about how he obtained these texts adds to the Tribunal’s doubts. He initially said that he and some ‘other leaders’ obtained the documents from the court, and that is how he learned that there were charges against him. However, the only documents that he has presented to the Tribunal are the purported transcripts from January 2015, several weeks after he lodged his protection visa application. 

    §   Third, the applicant was unsure when he learned about the false charges. He said that it was after the third major incident (that is, when the Bangladesh security forces came looking for him at his office in [Area 1]), i.e. during the five or six month period before he departed Bangladesh. The Tribunal considers it remarkable that the applicant did not have a clearer recall of when he learned about the charges, for instance, whether it was before or after he obtained his [Country 3] and [Country 4] visas.

    §   Fourth, while the Tribunal has rejected the applicant’s claim that Bangladeshi security forces led by RAB (in perhaps March or April), the applicant’s account of his movements during 2014 raises further questions. In particular, it is unclear how the authorities failed to locate him at his family home or known locations. At the first hearing, the applicant spoke of his continued contacts with the BNP office in [location] and doing business mainly by telephone. In response to the Tribunal’s observation that he appeared to have been living in the family home throughout, he referred vaguely to being in hiding. Both applicants expanded on this at the second hearing, with the applicant wife indicating that they had travelled within Dhaka, to relatives outside the city and even to some remote locations where they were not known. In the Tribunal’s view, these comments were general in nature, and do not resolve its concerns that the applicants have not demonstrated a credible response to the claimed threats that were present in Bangladesh.

    §   Fifth, in addition to these specific concerns - about the ‘transcripts’ themselves, the applicant’s account of learning about the false charges, and his conduct during this period – his overall poor credibility reinforces the Tribunal’s concerns that he has arranged to have someone manufacture Bengali language texts that are completely untruthful.

12. In light of the above concerns, the Tribunal finds that the applicant was not present at any political rallies in December 2013 (or at any other time); that he was not subject to false or politically motivated allegations, or charges; that there was no associated arrest warrant or any relate court proceedings; and there is no pending legal action or ongoing adverse interest from the local police in [an area], other police units or the Bangladesh security forces.

    Departure from Bangladesh

13. The applicant’s passport, presented at hearing (and also addressed in the decision under review), shows that he obtained a visa for [Country 3] on 8 July 2014, and another for [Country 4] [on] 21 August 2014. The applicant told the Tribunal that he realised that he had to leave Bangladesh, and he initially thought of going to [Country 3], where he could meet Khaleda Zia’s son Tarique. Asked why he did not depart for [Country 3] sooner, he said that the situation in Dhaka was already bad, but later it deteriorated further, adding to the urgency of his departure. He added that he learned, through an (unidentified) source, that the RAB had a list of persons earmarked to be caught in crossfire (a term often used to describe ‘staged extra-judicial’ killings), implying that his name was on the list.

14. The applicant claimed that he managed to exit via Dhaka’s international airport only through the payment of a bribe, amounting to [amount]. He had to use some contacts to identify someone and arrange payment.

15. In response to the Tribunal’s observation, the applicant confirmed that he remaining living at the one street address throughout this period. He then added that he and the applicant wife were in fact staying short-term in different houses in Bangladesh. The applicant wife also alluded to this at the second hearing.

16. Tribunal consideration: The Tribunal has already rejected above the applicant’s claims that he was politically active in the BNP’s students and youth wings; that he was harmed prior to 2014; and that he was attacked on three occasions in the first half of 2014. It notes that, in addition to his written and oral evidence, the applicant wife provided some evidence at the second hearing that the family was afraid and on the move, and that the tenor of [Mr B]’s letter may point to the same direction.

17. The Tribunal does not accept that the applicant undertook further political activities, albeit with extreme caution; that the family received threatening telephone calls; that the family moved around for their safety (although they may have visited family and friends in Dhaka and their home villages for unrelated reasons, prior to their travel to Australia); that the applicant learned that RAB or other Bangladeshi security agents had him on a hit list; or that the bribed officials to arrange the family’s safe departure from Bangladesh. The Tribunal finds instead that the applicants left Bangladesh for reasons unrelated to their protection claims.

    Other incidents

18. The applicant said that he had focused on the major incidents that threatened his security in Bangladesh, although there had also been minor ones.

19. Over the two hearings, he made several other claims, almost in passing. For instance, he claimed that [Business 3] had to abandon [projects] after AL activists demolished [property] (and, by implication, made promotional and similar work impractical). He said that his business partner blames him for the loss, and the company is now dormant. The Tribunal accepts that the applicant was involved in [Business 2] up to the time of his departure from Bangladesh (as he claimed), as well as some [specified] work. However, in light of the above findings, the Tribunal does not accept that the applicant’s businesses wound down or ceased because of pressure from AL political opponents.

20. As noted above, the applicant told the Tribunal that he also heard from ‘one of [his] sources’ that the RAB had a list of persons who were to be caught in ‘crossfire’, a euphemism for extra-judicial killings. By implication, the applicant knew or suspected that his name was on that list. The applicant was responding to the Tribunal’s question as to why he had not used his visas for [Country 3] and [Country 4] (issued in July and August 2014 respectively) to leave earlier. He said that, while the situation was already bad in July/August 2014, knowledge that he was on a RAB hit list added real urgency to his need to depart. The Tribunal does not accept this claim as truthful. First, it has already rejected the applicant’s claims of past political involvement and being targeted by political opponents and the Bangladesh authorities, and concluded that he is a witness of low credibility. Second, the claim lacks credibility even if the Tribunal were to take it at face (which it does not). The Tribunal does not believe that the applicant – after several attacks by student activists, an attempted seizure by Bangladesh security forces, severe restrictions on one’s political and business activities, and the discovery of false or politically motivated cases – a rumour that the applicant is on an RAB hit list would serve as the tipping point for him to try to leave Bangladesh urgently.    

    Other claims

21. As noted above, the applicant’s written statement include claims of arrest, detention and torture, which he addressed only after the Tribunal prompted him. Similarly, his written statement includes mention of the RAB having come to his home and ‘unnecessarily’ having harassed his family. There was no mention of this at the hearing, in the evidence of either applicant. Rather, the applicant spoke of problems in his offices, and both later referred to having to go into hiding or to move around, to avoid political opponents. In response to the Tribunal’s observations, the applicant vaguely explained that the authorities had come to his village home, where his parents live.

    Recent events

22. The applicant presented his most recent passport at the Tribunal hearing. During the course of discussion, he revealed that he had no problem obtaining it. However, he said that on this and past occasions, he had to pay not just the usual administrative fee, but also an additional sum as a ‘political leader’. The Tribunal accepts that the applicants have had to pay fees for the issuance of their passports. However, it does not accept that the applicant is an active BNP supporter or member, or former office bearer; or that he is perceived as such. It also does not accept that he has had to pay bribes or any additional charges due to his political opinion, actual or perceived.

23. The applicant told the Tribunal that his parents spend time in Dhaka and their home village, as well as spending time with relatives, implying that they are in danger or subject to harassment. As noted above, when asked about his written claim about the authorities coming to his home and harassing his family, he said that he meant that the security forces had come to his parents’ village home looking for him, following his departure from Bangladesh. This is certainly not clear from his written statement. Given the findings above, the Tribunal does not accept that the Bangladeshi authorities have any adverse interest in the applicant, or that they have come looking for him in Dhaka, Chuadanga or elsewhere, while he was in Bangladesh or after his departure. 

24. At the end of the hearing, the applicant said that he is fearful of returning to Bangladesh, in particular because of the December 2018 national elections (which have since been held). The Tribunal noted country information that Bangladesh has historically experienced higher levels of political violence in the lead-up to elections. The applicant also said that he believes the BNP would win the elections if they were fair, but this is unlikely to occur. He said that he is fearful of returning to Bangladesh any time, until the BNP comes to power. The Tribunal accepts that the applicant has concerns about Bangladesh’s political climate and violence, and that he would prefer the BNP to form the government. However, in light of the above findings – about his political opinion and engagement, his past experiences and his conduct – the Tribunal does not accept that the applicant genuinely fears that he is at risk of persecution or significant harm for any reason(s) linked with his protection claims.

    Summary of findings

25. The Tribunal accepts that the applicant prefers the BNP, but it does not accept that he has any political interests or engagement beyond a general preference. It does not accept that he has held any political office in the BNP’s student wing (JCD) or its youth wing (JBD); that he has any association with the BNP political party; or that he has participated in political activities, such as rallies or organising meetings, in Bangladesh or Australia. It does not accept that he is perceived to be an active supporter or official of the party.

26. The Tribunal finds that the applicant has come to the adverse attention of the Bangladesh authorities (including its security forces, and national or local police), the ruling AL party or its activists (including student activists), or anyone else. The Tribunal rejects all claims of past harm, including physical attacks by student activists; attempted arrest by RAB and other security agencies; periods of detention and mistreatment; he lodging of false or politically motivated criminal cases; and the applicant’s presence on an RAB hit list for extrajudicial killing. The Tribunal also rejects all associated and consequential claims, including that the applicant and his family lived in fear, that they moved around in hiding; that he had to modify or cease his business or political activities; that he had to pay extra to obtain a passport and take precautionary measures to depart Bangladesh safely; or that the applicants left Bangladesh fearing for their safety. 

    ASSESSMENT: REFUGEE CRITERION

27. The Tribunal now assesses whether, in light of the above findings of fact, and having regard also to any other relevant factors – in particular, country information, as well as the applicant’s future conduct – there is a real chance of him experiencing serious harm amounting to persecution if he returns to Bangladesh for reason of his political opinion (actual or imputed) or for any similar reason enumerated in s.5J(1)).

28. The applicant claims to fear that the Bangladesh security forces, acting on behalf of the ruling AL government, will arrest, detain and imprison him on his return to Bangladesh, following up on false political charges; or that they may conduct an extrajudicial killing, as he is on their hit list. He claims that, more generally, AL activists and thugs (‘miscreants’) will be motivated to seriously harm him, and that they will be able to do so with impunity given the current political and security. He claims that these risks will prevail for at least as long as the AL remains in power.

1. As the applicant foreshadowed, the Bangladesh national elections held on 30 December 2018 were marred by political violence, allegations of intimidation and vote-rigging, and opposition demands that they be declared invalid.[7] As a result, the AL’s landslide victory is disputed, and opposition groups contest the government’s legitimacy. Essentially, the political backdrop to the applicant’s protection claims – that is, his past experiences as well as his prospective fears – remains as discussed at hearing and set out in the submissions before the Tribunal.

   [7] BBC On-line: Bangladesh election: PM Sheikh Hasina wins landslide in disputed vote, 31 December 2018:

2. The Tribunal has found above that the applicant’s political opinion does not extend beyond that of a person who generally prefers the BNP, and that his claims of past harm are untruthful. The Tribunal does not accept that the applicant has any political opinion that has motivated him to engage in related activities, or hold any party position, in the past. It also does not accept that the applicant’s general preference for the BNP has given him a profile with the Bangladesh national or local authorities, AL activists or anyone; or that there is a real chance he will acquire such a profile on his return.

3. The Tribunal found it difficult to engage the applicant on his conduct if he returns to Bangladesh, as his clear focus was on the risks he would face and his preference to remain in Australia. The limited available information suggests that he would return to Dhaka, and seek to revive his various business interests.

4. The Tribunal has taken into account a wide range of country information about Bangladesh, including in the submissions before it. For instance, the Department of Foreign Affairs and Trade’s most recent report[8] refers to generally high levels of politically motivated violence in the country, and the high risk of violence towards senior members and active members of the BNP, as well as its auxiliary organisations like the JCD and Jubodal. The Tribunal is also mindful of DFAT’s comments that the political and security situation is volatile, especially in the lead-up to elections; and that the risks individuals face may vary according to location and timing. Nonetheless, the country information does not go so far as to suggest that the AL authorities and political activists have the motivation or resources to harm persons, merely on the basis that they prefer (or even support) the BNP.

   [8] DFAT, Country Information Report – Bangladesh, 2 February 2018

5. The voluminous country information submitted in this case alludes, among other things, to Bangladesh’s political and security problems, and its poor human rights record. These concerns appear to underlie the applicant’s protection claims. The Tribunal accepts that the applicant is generally concerned about these matters, although his and his family’s circumstances in Bangladesh (such as education, business activities and travel history) suggest that he and his family are reasonably well-off. Moreover, the Tribunal considers that Bangladesh’s general political and security situation does not cause ‘serious harm’ to the applicant personally; they do not involve ‘systematic and discriminatory conduct’ towards him;’ and such harm or inconvenience as they might cause for the applicant is not for one or more of the grounds set out in s.5J(1). They therefore do not amount to persecution within the meaning of s.91R(1).

6. The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to Bangladesh.

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

   ASSESSMENT: COMPLEMENTARY PROTECTION

8. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh.

9. The Tribunal refers to the findings of fact above, its assessment of the applicant’s future conduct and its views of any associated risk. Having regard to his circumstances and relevant country information, the Tribunal is not satisfied that there are substantial grounds for believing that the applicant - as a Bangladeshi man who prefers the BNP, but who has no further involvement with the party and no record of past adverse experiences - 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.

10. As noted above, implicit in the applicant’s claims is a broader concern about Bangladesh’s political violence and poor governance. The Tribunal accepts that he sees his prospects in Australia as more favourable – for instance, business and economic opportunities, and the standard of living - than those he would face in Bangladesh. However, the Tribunal is not satisfied that the political or security environment he faces in Bangladesh would involve a real risk of ‘significant harm’ for him personally. It is therefore not necessary for the Tribunal to consider whether,  under s.36(2B)(c), there is also taken not to be a real risk that he will suffer significant harm because 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 relating to the general political and security environment, and general living conditions in Bangladesh, involve real risks that the population generally faces, rather than the applicant personally.

11. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm: s.36(2)(aa).

    The second-named applicant

12. The second-named applicant made no protection claims of her own, instead relying on her membership of the same family unit as her husband. She gave evidence that they both faced difficult times, which included death threats by telephone, periods in hiding and generally being fearful. The Tribunal understood this to be general evidence to support the first-named applicant’s protection, rather than any implied protection claims on her part.

    CONCLUSION

13. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

    DECISION

14. The Tribunal affirms the decision not to grant the applicants protection visas.

    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 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.