1606403 (Refugee)

1606403 (Refugee) [2018] AATA 2615 (13 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1606403
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:James Silva
DATE:13 June 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 13 June 2018 at 12:14pm

CATCHWORDS
Refugee – Protection visa – Bangladesh – Political opinion – Bangladesh National Party activist – Opposition to Awami League Government – Particular social group – Bangladeshi ship deserters – Protests – Physical violence – Extortion – False criminal charges – Social media expression – Political activities in Australia – Attacks on business – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 91R, 424AA, 437, 438, 499
Migration Regulations 1994, Schedule 2

CASES
Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
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

The applicant is a man in his [age range] from Chittagong, Bangladesh. He claims to be a citizen of Bangladesh.
The applicant arrived in Australia [in] October 2015 as the holder of a Maritime visa. He applied for a Protection (Class XA) visa on 18 November 2015, and attended an interview with a delegate of the Minister for Immigration on 21 April 2016.
On 22 April 2016, the delegate refused the application pursuant to s.65 of the Migration Act 1958 (the Act).
This is an application for review of that decision.
The applicant appeared before the Tribunal on 13 June and 14 June 2017 to give evidence and present arguments. The applicant is represented in this matter by [Representative A] of [company name].
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Criteria for a protection visa
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 set out in Attachments A and B.
CLAIMS AND EVIDENCE
Claims
The applicant is [an age] year old man from Chittagong, Bangladesh.
The applicant’s main protection claim is he is long-term supporter of the opposition Bangladesh Nationalist Party (BNP), like his family.
§ He held various positions in the local student wing of the party, and later its youth wing. He used to participate in political activities (when in Bangladesh); and make financial donations. He claims that the (currently ruling) Awami League (AL) have a longstanding enmity with him. In 2011, AL supporters and their criminal associates extorted $[amount] from him. Others then tried to do the same, and the applicant went into hiding. In 2014, AL supporters attacked him, causing physical injury and again forcing him into hiding.
§ The applicant participated in protests in Chittagong in December 2014, and has now learned that he is subject to false criminal charges relating to a riot in January 2015. AL supporters have threatened and harassed his family, and attacked his home.
§ The applicant is determined to continue his political activities if he returns to Bangladesh. He fears that the AL government and its thugs will target and harm him if he does so alternatively, he will have to refrain from political activities, for his safety.
§ At the review stage, the applicant presented a large volume of material about his BNP-related activities in Australia, including attending meetings, giving speeches, associating with leaders, recruiting members, making donations and posting material online. He claims that the Bangladesh authorities and AL agents in Australia will be aware of these activities, thereby increasing their perception of him as an anti-government activist and an ‘emerging young BNP leader’, and the risk that they will persecute or significantly harm him.
The applicant worked on ships, and deserted ship in Australia, in violation of Bangladeshi law. He fears that the authorities will detain and punish him if he returns to Bangladesh, and do so in a discriminatory manner because of his association with the BNP.
Background
The applicant is [an age] year old man from [Town 1] in Chittagong, Bangladesh’s second largest city. He is an ethnic Bengali and a Muslim, whose languages are Bengali (Bangla) and English.
The applicant attended school in [Town 1] up to Secondary School Certificate, and completed his Higher Secondary Certificate at [a] University College in [year]. He achieved a [degree] in [year]. From [specified year] to [year], he attended [a named vocational college].
He applicant claims to have lived in various parts of Bangladesh, including Chittagong ([between specified years]), Barisal ([between specified years]), Noakhali (for one month in [year]), and another location in Chittagong ([between specified years]). His father had worked [for Agency 1], and had postings in different locations. The family bought a house in [Town 1] in about [year], and that remains their permanent place of residence. According the applicant’s comments, and general country information, [Town 1] is a densely populated part of Chittagong, and the family’s home in [address] is in a reasonably well-to-do area.
The applicant’s further studies and work required him to also move around considerably. A brief summary of his employment history illustrates this:
§2004: [specified duties at a] company in Chittagong
§Training/studies: 2004-2006: Training in [specified duties] in Chittagong; March to December 2008: Further training; July 2011 to April 2012: [Further related fields].
§Work duties: [specified] in Bangladesh.
§Able-bodied seaman based in [Country 1] (and travelling to different international ports): [specified periods of duty].
-On Form 866C, the applicant listed the countries that he visited in the course of his work, between 2007 and 2015. These included: [list of countries].
§Owner of [named business in] Chittagong ([specified period]).
The applicant claims that during 2014 (following an alleged physical attack in April 2014), he lived in Dhaka, Bogra, Barisal and Noakhali, before returning to Dhaka again and then departing Bangladesh.
The applicant’s work as a merchant seaman work typically involved ship voyages of some ten to twelve months, followed by a break of three to four months before the next trip. During ship voyages, he worked as a [nominated role] and undertook a range of other tasks, including some maintenance. He said that he was unable to contact his family while at sea, but he bought SIM cards and telephoned them during shore leave.
The applicant claimed that, after his 2014 travel, he returned to Chittagong and invested money in a friend’s [business], [named]. He estimated his share of the business at 50 per cent; this was undocumented (in other words, the applicant was a silent partner). The applicant said that he used to spend time in the shop (and as a result, his political enemies got to know his movements). He said that he now has minimal contact with his former business partner, following an argument over money.
The applicant’s parents are retired, and continue to live in [Town 1]. His father used to [work for Agency 1], but retired in 1985. He has [siblings with specified status and jobs] living in Chittagong (one of them near [Town 1]).
Evidence
The Tribunal has before it a large volume of written and oral material. This includes, relevantly:
§ The applicant’s protection visa application form, which includes his written reasons for seeking protection. The applicant provided, among other things, details of his past employment and overseas travel from 2007 to 2015.
§ A statutory declaration dated 19 April 2016 sets out his claims in more detail.
§ A covering submission from his representative, dated 21 April 2016, focuses on the applicant’s claims for complementary protection, as a ship deserter who is at risk of being punished in a discriminatory manner (due to his political opinion).
§ Documents submitted by the applicant (to the Department and to the Tribunal) in relation to his identity and travel
-A partial photocopy of the applicant’s Bangladeshi passport (selected pages only), issued in [2013]. This has entry stamps showing travel to [Country 1], [Country 2] and [a third country].
-The applicant provided to the Tribunal a copy of the certificate of his marriage to [his wife] [in] 2017. She is an Australian citizen born in Bangladesh, who attended the Tribunal hearing as an observer and support person.
§ Documents supporting the applicant’s protection claims:
-Letters of support from political sources (in Bengali, with English translations, unless otherwise stated)[1]:
[1] A submission of 19 April 2016 mentions the authors and/or positions of these letters, but does not identify which Bengali and English translations belong together. The Tribunal’s list of supporting documents is based on the English translations only.
§Bangladesh Jatiyatabadi Chhatradal (JCD)[2], [office bearers] of [Branch 1] (undated, names of authors illegible)
[2] The BNP’s student wing.
§JCD, [name] and [Mr A], [Branch 1], signed on 3 April 2016 (authors’ positions illegible)
§Bangladesh Jatiyatabadi Dal (BNP, the Bangladesh Nationalist Party), [name], [Office bearer], [Branch 1] (undated)
§BNP, [Town 1] Thana, [Branch 1], [two specified office bearers] (undated, names of authors illegible)
§Bangladesh Jatiyatabadi Dal (BNP) Australia, [Mr B], [office bearer], [in] April 2016 (in English)
§Three letters (provided at the review stage) from the Bangladesh Jatiyatabadi Dal Australia, Inc., from [Mr C], [office bearer] ([May] 2017); [Mr B], [office bearer] ([May] 2017); and [Mr D], [office bearer] ([May] 2017).
-A medical document on a Bengali pro forma, with English language text indicating that the applicant, aged [age] at the time, presented with wounds, and had a ‘history of assault’.
§ A Protection visa interview (‘Department interview’) held on 21 April 2016, a recording of which is attached to the Department file.
§ The Protection visa decision record (delegate’s decision) of 22 April 2016. Essentially, the delegate rejected the applicant’s political claims on credibility grounds, and found that the applicant was at most a rank and file member of the BNP who was not of adverse interest to anyone. He also found that that the applicant’s status as a ship deserter would result in him being subject to no more than sanctions under laws of general application, which did not involve persecution for one or more of the reasons in s.5J(1) (he did not expressly assess whether the applicant would be eligible for complementary protection if subject to these laws).
§ The review application form lodged on 6 May 2016.
§ Further documents submitted during the course of this review include the following:
-    A copy (in Bengali, with English translation) of a memorandum dated [in] October 2015, from the [Government Agency 1] stating that the [relevant authority] has lodged a complaint that the applicant deserted his ship in Australia [earlier in] October 2015. It advises that the applicant has 21 days within which to show cause why legal disciplinary action should not be taken against him.
-    A copy (in Bengali, with English translation) of a (purported) First Information Report, in which the applicant is named as number [among number] persons accused of rioting, and throwing petrol bombs and Molotov cocktails at vehicles, on [a date in] January 2015; and a receipt dated [in] April 2016 from the [named] Court for a duplicate copy of the FIR, entitled ‘The State Versus [applicant’s name] and others’.
-    A letter from [his lawyer] an advocate in Bangladesh, dated 14 January 2017, stating that he has confirmed the ‘authenticity’ of the FIR which names the applicant, and learned from the police that they are currently searching for him.
-    Photographs of the applicant (about 23) showing him at various functions in Australia, including at public or social functions, and at meetings, sometimes with a microphone in his hand and/or at a podium, and on other occasions in a larger group.
-    Excerpts from the applicant’s Facebook timeline, in an account under the name ‘[Facebook Profile Name]’ with the applicant’s photograph, showing entries going back to December 2016, in which the applicant shares pro-BNP (and similar political) postings and posts some political comments.
-    The Tribunal received a DVD which showed the applicant speaking on several occasions, at meetings in Australia. He appears to be addressing a group of Bangladeshis with a BNP poster in the background, and in some cases introducing another speaker. The DVD contains four files, which appear to refer to specific occasions, annotated as follows:
§ 35^th Death Anniversary of Zia (file date 4 June 2016)
§ Court false verdict against Tareak Rahman (23 July 2016)
§ National Revolution and Solidarity Day (12 November 2016)
§ Seminar with [a] leader of BNP [Mr F] (16 March 2017)
§ Following the hearing, the Tribunal received English language translations of the applicant’s ‘speeches’ at each of these occasions. In one of these transcripts (translations), the applicant summarises his protection claims, as follows:
When I was a student I was active in politics but in job I wasn’t that much active and was away from home for 7-8 months for job purpose but when I came back I was involved in politics. I had to pay [amount range] taka to the police and Chhatra League activists jut to let me build my home and they attacked and harassed me many times and even I could not stay at home.
In January 2015, I came back to ship and a case was filed against me [for an offence] in Chittagong port and non-cooperation movement. I wasn’t in Bangladesh that time. Charge sheet was issued in my name. I couldn’t prove with all my documents that I was out of the country that time.
§ Submission dated 6 June 2017, with country information about human rights abuses in Bangladesh and a compendium of recent ‘RRT’ decisions relating to Bangladesh.
-    The applicant provided further statements of support:
§ [Mr A] (dated 1 May 2017)
§ [Mr E] (dated 16 May 2017)
§ The applicant’s further statutory declaration of 8 June 2017, which focuses in particular on his activities in Australia, his outlook as a ‘future BNP leader’ and his problems as a ship deserter.
The Tribunal received a number of submissions. On 6 June 2017, a submission contains a list of thirty country information references concerning Bangladesh, with some extracts highlighting the country’s poor human rights record, the prevalence of political violence, the ‘criminalisation’ of the political system, and specific instances of opposition activists being targeted by the AL and its agents. The submission includes extracts of recent Tribunal decisions. Further submissions include the following:
§ Submissions dated 4 July 2017, 12 July 2017, 17 July 2017, 1 August 2017, 12 January 2018, 23 January 2018, 26 February 2018, 12 April 2018 contain references to and excerpts of various country information relating to human rights problems in Bangladesh, particularly in relation to political opponents..
§ A submission dated 17 August 2017 contains articles in Bengali from the first half of 2017, with English translations, reporting of young men who have arrested and charged for posting defamatory remarks and images on their Facebook accounts.
§ A submission dated 29 August 2017 contains further country information about enforced disappearances and other human rights problems in Bangladesh.
§ Various submissions, including on 22 January 2018, 5 March 2018 and 4 May 2018, have attached to them further photographs showing the applicant at various BNP-related events, including protest activities, in Australia. One of these shows the applicant together with other BNP Australia figures, in his capacity as ‘[Office bearer], [City 1] BNP’ at [a venue] [meeting] [an Australian political official].
§ The applicant sent a DVD cover on 8 May 2018, relating to further political activities in Australia.
§ Screen shots from the applicant’s mobile telephone purportedly showing contacts with BNP members and activists.
§ Evidence of money transfers to Bangladesh, which according to the applicant was to BNP activists such as [variant of Mr A] [sic]; also, copies of the applicant’s messages to [variant of Mr A], from the Viber message service.
§ Copy of a contact list of BNP members from the applicant’s email account.
The applicant appeared before the Tribunal at a hearing held over two sessions, on 13 and 14 June 2017. The hearing was conducted with the assistance of an accredited interpreter in the Bengali (Bangla) and English languages. The applicant’s wife [was] present as an observer and support person. The applicant’s representative, [Representative A], attended the hearing.
The applicant requested the Tribunal to take oral evidence from the following persons:
In Bangladesh
§ [Mr A], [office bearer], JCD [Branch 1]; and [Mr E], [senior office bearer], JCD [Town 1] thana;
In Australia
§ [Mr D], [Mr B]; and [Mr C], all office holders of the BNP Australia.
In relation to the witnesses in Bangladesh, the Tribunal advised the applicant of its general reluctance to speak directly with persons in the country of alleged persecution, particularly where they had already provided written statements and where there is a risk that they may be under surveillance and/or other danger (as claimed). The applicant and [Representative A] impressed on the Tribunal that they considered the witnesses’ evidence critical to his case. The Tribunal was able to reach only [Mr A]. He advised the Tribunal that he was currently in hiding, and suffering a cold. He recounted the applicant’s political background, and there was a brief exchange about his personal knowledge of the applicant.
In relation to the witnesses in Australia, the applicant and [Representative A] also impressed on the Tribunal the critical nature of their oral evidence. The Tribunal took oral evidence by telephone from [Mr B]. It was able to contact [Mr C] briefly, but he was in a noisy location (such as a shopping centre) where he was not able to speak clearly. The applicant and the representative requested the Tribunal to persevere in efforts to reach all six nominated oral witnesses. The Tribunal noted that they had all submitted written statements, which it understood they wished to confirm orally. It noted also that, in the case of the witnesses in Australia, the applicant had an opportunity to invite them to give evidence in person had he wished.
The applicant’s submissions include a range of country information excerpts and references, including a report by Odhikar: Human Rights Monitoring Report, dated 1 April 2017.
The Department issued a certificate under s.438 of the Act, certifying that the information in folios 51 and 76 of the Department file [number] was subject to paragraph 438(1)(a), as disclosure of it would be contrary to the public interest. In both instances, the public interest was based on the fact that the folios ‘contain information relating to an internal working document and business affairs’.
In light of the Federal Court decision in MZAFZ v MIBP[3], 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 the certified pages contain a completed identification test checklist and an earlier version of a disclosure decision checklist, in which the delegate considered that none of the material on the file fell within the scope of s.437 or s.438 of the Act. The Tribunal advised the applicant and the representative of the existence of the certificate, and its view that it was neither valid nor relevant to this decision. They noted this without comment.
[3] MZAFZ v MIBP [2016] FCA 1081, Federal Court of Australia, Beach J, VID 461 of 2016

The Tribunal has before it a large amount of country information about Bangladesh. In relation to the Department of Foreign Affairs and Trade’s (DFAT) reports, it referred to the DFAT Country Information Report – Bangladesh, 5 July 2016. In post-hearing submissions, the applicant referred to and provided excerpts from the DFAT report dated 2 February 2018, which the Tribunal takes into account in this decision.
Receiving country
The applicant claims to be a Bangladeshi national. He holds a current Bangladeshi passport, and has presented documents to the Department and the Tribunal that demonstrate his links with Bangladesh. Furthermore, he speaks the national language, Bengali, and is thoroughly familiar with that country. The Tribunal is satisfied that the applicant is a Bangladeshi national. Bangladesh is therefore the receiving country for the purpose of assessing his claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Credibility
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.
The Tribunal hearing was lengthy and held over two sessions, with allowances (among other things) for the applicant’s observance of Ramadan. The applicant presented as an intelligent, well-informed person. He showed some familiarity with political personalities in his local area, and the kind of insights that would be commensurate with his background and education. However, much of the applicant’s evidence, particularly about his experiences in Bangladesh, was digressive and, in the Tribunal’s view, sometimes evasive.
As a general observation, the Tribunal found a wide gulf between (a) the applicant’s account of his political profile and engagement in Bangladesh, and the scant contemporaneous evidence; and (b) his voluminous, detailed evidence of his political activities in Australia, and statements of support. The representative requested that, in evaluating the applicant’s claimed political activism in Bangladesh, the Tribunal have regard to the supporting statements and oral evidence from BNP people in Bangladesh, as well as the applicant’s high level of political engagement in Australia. The Tribunal considers these points further, in its assessment below.
In relation to corroborative evidence, the Tribunal agrees with the comments in the UNHCR’s Handbook and Guidelines on the Procedures and Criteria for Determining Refugee Status that ‘an applicant may not be able to support his statement by documentary or other proof’. In the present case, however, the applicant claims to have been a political activist in one of Bangladesh’s major cities, over a long period. In the Tribunal’s view, it is surprising that he was unable to provide at least some kind of contemporaneous evidence from this period. In his statutory declaration of 30 June 2017, the applicant stated ‘I am not sure why the member said that I provided documents related to my political activities only recently’, and referred to a number of supporting statements made in 2016. In the Tribunal’s view, these are not contemporaneous with the applicant’s period of claimed political activism in Bangladesh, but rather of recent origin. The Tribunal is satisfied that the applicant and his representative understand this distinction.
The applicant provided a few comments about the lack of evidence from his period of claimed political activism in Bangladesh. He variously stated that he did not realise the importance of keeping records (in other words, the value of this for a future protection visa application); that the BNP office in [Town 1] was burnt down sometime in the period from 2006 to 2008 (although he did not have further details or other evidence, apart from a witness’ oral mention of this); that his friends probably had no evidence from this period (in part because smartphones were not readily available in Bangladesh at that time, or at least smartphones with cameras); and because he had recently lost a smartphone in Australia. The Tribunal formed the impression that the applicant was not genuinely engaged in thinking through whether there might be some photographs or other evidence from this period, for instance from party colleagues or in published sources. This strongly suggests that there is in fact, none, and that the applicant did not engage in any political activities in Bangladesh.
The Tribunal has significant concerns about the weight that can be placed on the evidence provided by applicant’s oral witnesses, particularly his (claimed) political associates in Bangladesh. The applicant presented a number of statements from witnesses; in addition, he and his representative impressed on the Tribunal the importance of taking oral evidence from these people (particularly if had any doubts about the contents of their written statement). For its part, the Tribunal stated that it would note and give appropriate weight to the fact that the authors of the letters were willing to give oral evidence, but it had reservations about telephoning witnesses in a country of claimed persecution, particularly those who claimed to be subject to surveillance or other measures from the local authorities.
The Tribunal managed to contact two witnesses in Bangladesh. [Mr A], the witness in Bangladesh declined to state his current location, indicating that he was in hiding and it was too dangerous to reveal his whereabouts. He repeated the basic elements of the applicant’s political history, including dates, and the claim that the applicant used to send the BNP money. However, despite his claimed knowledge of the applicant, he did not know what work he did overseas. Asked whether he had any photographs or other evidence of the applicant’s political activities in Bangladesh, [Mr A] said that he has been feeling unwell, and he gave no further comment.
The Tribunal put to the applicant pursuant to the procedure in s.424AA that [Mr A] did not know his (the applicant’s) profession (as a seaman), which in turn might indicate that he did not actually know him from his period of residence there. The Tribunal is concerned that [Mr A] does not in fact know him, but he – and the authors of other letters - have relied on information that the applicant has provided to them recently, without necessarily verifying it. The Tribunal does not accept that [Mr A] was unable to answer a basic question about the applicant’s profession, because he ([Mr A]) was in hiding, feeling unwell or for any other reason. It finds that the applicant concocted this evidence, and that it is unreliable. It accordingly places no weight on [Mr A’s] written or oral statements, or related evidence (such as the applicant’s evidence of money transfers to a person by that name), as evidence of the applicant’s political profile. This raises strong concerns that the applicant has concocted evidence from other witnesses, too. It therefore approaches all the written statements, and the oral evidence provided by witnesses (and the availability of other witnesses to confirm their statements) with caution.
As noted above, the Tribunal has a large amount of evidence indicating that the applicant has played an active role in BNP activities in Australia, which it accepts that he has done. Its assessment of this is below. Given the extent of its concerns about the credibility, it proceeds to examine closely all of the evidence that he has provided, rather than afford him the benefit of the doubt.
Concerns about the conduct of the hearing
During the course of the hearing, there was discussion of the applicant’s claim that after April 2014, he fled Chittagong and was in hiding in various places in Bangladesh (including Dhaka, Bogra and Barisal). He claimed that, during this period, he made day trips to Chittagong to participate in political programs. The Tribunal indicated its doubts that he would risk returning to the very location where he was allegedly subject to persecutory harm, and signalled its disbelief that he would be able to make return day trips from some of the more distant locations.[4] In response, the applicant changed his evidence to say that he used to make return day trips when he was in the capital Dhaka, but when he travelled from Bogra or Barisal he used to travel in advance, go into hiding, attend the political program in Chittagong, and then go back into hiding before returning to that location.
[4] According to Google Maps, Barisal is about 240km from Chittagong, eight hours travel by car; and Bogra is 445km from Chittagong, eleven hours by car.
At the end of the hearing, [Representative A] expressed concern that the Tribunal, in expressing that it did not believe the applicant’s initial statement about his return day trips to Chittagong from distant locations, had shown a predisposition to disbelieve all the applicant’s claims. The applicant expanded on this in his statement of 30 June 2017, going on to state that ‘the Member had come to the hearing with closed mind […] and he had already formed a negative view on my case and my credibility […].’
The Tribunal has listened to the audio recording of the hearing, to confirm its understanding of the exchange. In its view, the applicant clearly understood the basis for the Tribunal’s comments. Indeed, he more or less agreed with the Tribunal’s comment, and corrected his initial statement accordingly. That is, he did not make day return trips to Chittagong from distant places, but rather stayed near the city before and after his visits. The Tribunal detected nothing to suggest that the applicant was inhibited from presenting his claims and evidence in full. It was not aware until the end of the hearing, and in the later submission, that he or his representative had any concerns about either the content or tone of the discussion. The Tribunal notes that suggestions of apprehended bias are serious, but it has decided in this particular case to take no further action in relation to the applicant’s alleged concerns.
Political activities in Bangladesh
Association with the BNP
The applicant claims to have been attracted to the BNP from a young age. There was a long family tradition of support for the party. His father was a member of the BNP in [Town 1], and [a relative] was an active BNP member who was close to Mirza Abbas (Mirza Abbas Uddin Ahmed), a former Mayor of Dhaka City Corporation, BNP cabinet member and a member of the BNP’s national standing committee. The applicant confirmed at hearing that all his family supports the BNP. He said that his father retired from [Agency 1] in [year], and was politically active from that time.
Country information indicates that the BNP is one of Bangladesh’s oldest and largest political parties. According to the Department of Foreign Affairs and Trade[5]:
The Awami League (AL) and Bangladesh Nationalist Party (BNP) have dominated politics for most of Bangladesh’s history. The AL is considered broadly liberal, secular and pro-Indian, while the BNP is viewed as conservative and anti-Indian, and places greater emphasis on Islam. However, both parties have compromised these ideologies for the sake of political expediency. The relationship between the AL and the BNP is characterised by longstanding enmity and personal rivalry between the parties’ leaders, Sheikh Hasina (AL) and Khaleda Zia (BNP). These factors have led both parties to approach politics in a confrontational, ‘winner-takes-all’ manner.
[5] DFAT Country Information Report – Bangladesh, July 2016
The Tribunal notes also that the BNP is perceived to favour ‘conservatism, corporatism, nationalism, militarism and anti-anarchism’, and that it draws strong support from the country’s ‘military, conservatives and upper middle classes’.[6] The applicant’s consistent statements and his family’s background, including their links with [Agency 1], all support his claim to (at least) favour and support the BNP. The Tribunal is satisfied, and finds, that the applicant prefers the BNP. It now considers the claims and evidence that he took this further, and was politically active in Bangladesh.
[6] Bangladesh: The path to democracy, 1991-2009.
The applicant’s political engagement and positions
The applicant claims to have been actively involved in the BNP and its associated organisations from the age of about [age], when he was studying at [his] University College.
BNP’s student wing: [Town 1] branch: [year]-2004
The applicant claimed to have joined the [Town 1] branch of the BNP’s student wing, the Jatiotabadi Chhatra Dal (JCD). In other words, he joined the JCD in his local area, rather than at the campus where he was studying. He provided further details and insights into his activities, as follows:
§ He did not enrol in the JCD at [his] University College (this appears to be [associated with] [a named university]). He told the Tribunal that the college was an AL stronghold at that time. The BNP student wing at the college operated only underground, at some risk. Despite the risks to BNP supporters at the college, he enrolled there because it had a good reputation overall.
§ As a junior JCD member, he used to observe others and participate in local activities.
§ The applicant said that the BNP’s Greater Chittagong Committee had oversight of student wings on campuses and elsewhere. In [Town 1], the JCD BNP committee consisted of some [number] members, and there were some [non-active] members.
§ The applicant said that the JCD was happy with his work in [Town 1]. From 2000, he was [position]; and from 2003 to 2004, he was [office bearer] of the [Town 1] JCD, although at the hearing, he described this position as the [senior office bearer].
The Tribunal asked the applicant if he had any corroborative evidence of his local work as a JCD member and later [office bearer] (or [senior office bearer]) in [Town 1] – for instance, membership cards, correspondence, photographs or other incidental material. He replied that he did not. He said that he undertook activities, but he did not think to keep any evidence. At the time, mobile telephones and social media were not so common. He thought said there might be some press articles from the time, but he does not have any of these.
Asked whether the BNP itself, or party colleagues, might have some records of his position, the applicant replied that in 2006 – while he was on a ship – the AL came and destroyed the BNP’s party office in [Town 1]. The applicant said, in further evidence, that he was not sure whether the party office was destroyed in 2007 or 2008; but in any event, it was a time of great turmoil for the BNP. The applicant said that his father used to visit the BNP office in [Town 1], and he used to also visit it. The Tribunal tried to explore whether the applicant’s BNP contacts in [Town 1] might have evidence (other than any material destroyed in an attack on the BNP there), but this yielded little.
The Tribunal discussed with the applicant general political developments in Bangladesh, such as the political crisis that dominated the last years of the BNP administration (from 2001 to 2006), with crippling strikes and protests, against a backdrop of serious corruption allegations. The applicant, who was in his [age range] during that period, was familiar with the allegations, and gave the BNP perspective on events, including the corruption allegations against Begum Khaleda Zia’s sons. The Tribunal found his comments to be commensurate with his education and background, and his claimed support for the BNP.
Country information indicates that politics looms large in Bangladesh’s schools and colleges, and it is common for students to align themselves with one or other party, for family, ideological or often pragmatic reasons (such as future networking and advancement). In the present case, however, the applicant offered little explanation, detail or evidence to support his claimed profile in the local ([Town 1]) JCD, and his later rapid rise to the position of [office bearer] or [senior office bearer]. It examines the supporting statements (written and oral evidence) below, when assessing his overall political profile in Bangladesh.
BNP’s youth wing: [Town 1] branch: 2004 onwards
The applicant claimed that, after completing university and starting his career, he joined the [Town 1] branch of the BNP’s youth wing, the Jatiotabadi Jubodal (JBD).
The applicant explained to the Tribunal that he was appointed a member of the JBD’s Executive Committee, which had some 10-12 active members and about the same number who were not active. During this period, he was also working full-time on ships, sometimes for extended periods.
§ The applicant said that his main role was helping to manage finances on his returns from ship voyages. Typically, he would help organise meetings or celebrations, and in particular raise funds. Since he often worked overseas, he would top up the funds if there was any shortfall, to ensure the events could proceed smoothly.
§ The Tribunal asked the applicant whether he could recall any major incidents from that period that affected him or the JBD’s office. He responded vaguely that ‘we’ were subject to forced donations, demands for ransom, and violence; and accused of being terrorists. His comments were vague and generic.
§ The applicant said that he left to do a ship assignment during the 2008 parliamentary election campaign. (The election was held in late December 2008. In his protection visa application, he wrote that from March to December 2008, he was at the [named vocational college] doing training, and that on [a date in] December 2008 – just days before the election itself – he flew to [Country 2] to join a ship.) The applicant said that the BNP was operating out of a number of temporary offices at the time. He attended classes (at the [college]) during the day, and in the evening, he used to liaise with the activists who were campaigning, and take care of the finances.
- In response to the Tribunal’s observation that he appeared to have placed priority on his career and further education, even during the election campaign, the applicant replied that the party recognised his father’s membership of the party, and welcomed the applicant’s contributions, due to his good character and education, and his donations.
§ The applicant said that, after the elections, he followed his parents’ advice to keep a lower profile, to avoid antagonising the AL.
§ As for evidence of any political work after 2006 (or whenever the BNP office was destroyed in an arson attack), the applicant said that he used to have some photographs on his mobile telephone, but he has lost the device.
§ The applicant claimed that, from this time, he mainly helped the BNP with donations of money. He emphasised the dangers of conducting open political activity. As for details of how he made donations, the applicant said that he used to send money to his parents. Sometimes political friends would ask him for donations; he arranged for them to visit his parents to collect funds.
§ In response to questions, the applicant said that during his lengthy periods overseas, he used to keep abreast of developments through his father, who was still active in the party.
§ The applicant gave another example, that in 2011, he donated the bail money for his political colleague, [Mr E] (who also wrote a letter of support). He said that the AL learned about the source of this money, and this caused him problems.
The Tribunal queried how the applicant came to the adverse attention of his political opponents, when for lengthy periods his only involvement was to send funds. The applicant replied that word got around about his donations. He does not know how this happened: perhaps people observed BNP activists coming to visit his parents at home. As for how his father was able to keep political contacts, and how friends managed to come by to collect funds, without being intercepted, the applicant replied that his AL enemies would probably not target his father, as he is older.

The applicant’s account of his political activities and profile from 2004 on, is highly problematic. He was working abroad for much of this period, and working or studying full-time while in Bangladesh except, as stated in his protection visa application, for [a specified period in] 2009 (‘unemployed’), and [another in] 2013 (‘unemployed’ and, he claims, working as a BNP organiser). Furthermore, the applicant’s claim that he held positions and maintained influence, primarily by making financial donations, or by helping with campaigns after hours, is difficult to believe. For instance, the Tribunal’s enquiries about how the applicant made financial donations to the BNP offices revealed only that he sent money to his parents (which the Tribunal accepts that he did, for other reasons). They then handed it to BNP activists (which the Tribunal does not accept at face value). The applicant claims that this was enough to bring him to the adverse attention of his political opponents and motivate them to harm him in the future; yet they did not take steps to prevent the transactions or target those involved in them (like his father or the BNP activists collecting the money). The Tribunal finds this account to be contrived, and does not accept it at face value.
In particular, it disbelieves his claim to have participated actively in the December 2008 election campaign; or that he was involved after-hours and had to curtail his activities in order to avoid persecutory or significant harm (or in response to his parents’ wish that he avoid such harm).
[Position], JBD [Branch 1]: February 2014
In his original statement, the applicant wrote of his ongoing financial support for the BNP, for instance, his donations to help mobilise JBD activists and his finance the legal costs of jailed BNP activists. This took place over many years.
In his statutory declaration of 8 June 2017, he added that in early 2014, he was elected [position] of the JBD [Branch 1] (the city’s BNP youth wing). Several writers of support letters, including JCD (student wing) leaders [Mr A] ([location]) and [Mr E] ([Town 1]) refer to this in their letters. At hearing, the applicant confirmed his claim that he was appointed to this position some four or five days after his return to Chittagong from his previous assignment (according to his protection visa application, this was in February 2014, from [Country 1]). He explained that he had planned to stay in Bangladesh for some time, to get qualifications for a job promotion and start a business. The Tribunal wondered how the applicant obtained any such position, given his prolonged absences from Bangladesh. In the Tribunal’s view, this inevitably meant that he would not be up-to-date with local personalities and political dynamics, essential to fulfilling the role of [position]. The applicant replied briefly that the AL leaders in the area (his opponents) remained the same, even if he did not personally know the goons and teenagers who they arranged to attack him. The Tribunal found this response improvised and unpersuasive. The applicant’s further account of his activities during this period – he claimed to have mostly been in hiding in other parts of Bangladesh, communicating the BNP colleagues on the ground in Chittagong to organise events – lacks credibility, and reinforces the Tribunal’s doubts.
Supporting statements
For the reasons stated above, the Tribunal finds the applicant’s account of his political profile and activities in Bangladesh to be weak and problematic.
The applicant provided some support letters that addressed his political role in Bangladesh, and he nominated witnesses in Bangladesh and Australia. These included persons identified as [Mr A] ([Mr A’s nickname])[7], [office bearer] of [his branch] JCD; [Mr E], [senior office bearer] of [Town 1] JCD; and [office bearer] of the [Branch 1] BNP. The applicant also presented several witnesses from Australia. These people did not know the applicant from Bangladesh, and for the main part addressed only his work in Australia.
[7] This name appears with spelling variations, including the nickname [variation].
In relation to the statements and oral evidence from the witnesses in Bangladesh, in both [Town 1] and [Branch 1], these re-state aspects of his protection claims in fairly general terms. The Tribunal took oral evidence from [Mr A] and [Mr E], both of whom confirmed their own positions, their knowledge of the applicant’s political work, and that they did not have any supporting evidence showing the applicant’s political activities. [Mr A] stated with some precision the applicant’s positions in the JCD from [year] to 2004, and that there was an attack in 2014. He commented that the applicant used to do other work (‘outside’) from 2004 but, remarkably, did not know what work this was. As the Tribunal put to the applicant pursuant to the procedure in s.424AA, [Mr A’s] lack of knowledge that he worked as a merchant seaman strongly suggests that he does not know the applicant personally, or as a political colleague, at all. This raises questions about the genuineness of the applicant’s claimed political profile in Bangladesh; the weight that can be attached to the written and oral statements from other witnesses; and indeed, his credibility.
The applicant did not address these points directly, but provided a large volume of material relating to his activities in Australia and raised questions about the Tribunal’s impartiality.
The Tribunal has carefully considered the circumstances in which [Mr A] claimed to have been giving evidence, including his claim that he was in complete stress, and moving around to avoid persecution (with some [large number] outstanding arrest warrants out for him); and that he had a heavy cold and was feeling unwell. The Tribunal found that [Mr A] spoke fluently and in detail about the applicant’s periods of activity with the [Town 1] JCD, and his claimed donations over a period of time. These comments appeared to be scripted or rehearsed, particularly given his inability to provide other basic information about the applicant’s circumstances. The Tribunal places minimal weight on his statement as evidence of the applicant’s past political activities.
The Tribunal is concerned that the statements of support, purportedly from BNP officials (the JCD, JBD and main party) in both [Town 1] and Chittagong, and the oral evidence of [Mr E], all have the character of well-meaning efforts to assist the applicant, but that their contents are unreliable. They do not, in any event, displace the Tribunal’s very serious concerns about whether the applicant had any profile or political position with JCD or JBD, in [Town 1] or [Branch 1], at all.
Assessment
The applicant’s claims and evidence concerning his political profile in Chittagong are highly problematic. The applicant’s representative requested the Tribunal to take into account the applicant’s subsequent behaviour (that is, his conduct in Australia) before reaching firm conclusions about his past political profile and activities in Bangladesh. The Tribunal therefore continues its assessment, and makes findings, below.
Past experiences of harm in Bangladesh
The applicant’s general claim that his involvement with the BNP always entailed some degree of risk is broadly in line with general country information about Bangladesh’s general security problems and the prevalence of political violence. It is particularly relevant for young people who are active in the major parties’ student and youth wings. A 2014 article gives some sense of the volatile nature of politics in Bangladesh[8]:
Political violence has become an integral part of politics in Bangladesh. The bulk of visible acts of political violence are generally carried out by workers and supporters of mainstream electoral political parties which is an indication of extreme intolerance in the political culture of the country. […]
Political violence is triggered by various issues. They can be related to elections (pre and post) or they can be due to non-electoral issues. Often street agitation organised by political parties result in violence. Party activists arrive at meetings/agitations with arms and engage in clashes or destruction of property. Violence also 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. Through control of educational institutions the student leaders can also transform themselves into wealthy businessmen. Additionally, violence takes place for control of specific localities in urban neighbourhoods and in villages. Financial gain is generally the motive, but these non-political conflicts are given a political colour as the opposing sides compete for spoils of the system for building individual and party support.
[8] Rounaq Jahan, Political Parties in Bangladesh, CPD-CMI Working Paper Series. August 2014.
The applicant referred to numerous examples of harm in the period up to early 2014. These were either directed towards him, or were sufficiently close to him to make him afraid for his safety and, in some instance, modify his behaviour.
§ At college, AL dominance of the campus meant that it was not safe for him to engage in BNP student wing activities there; instead, he worked only at the local level.
§ The AL attacked and completely burned down the BNP office in [Town 1] sometime between 2006 and 2008 (in other words, during the last phrase of the BNP’s rule or during the caretaker government’s reign). As a result, BNP activists were living in fear, and unable to conduct normal political activities. This included an alleged fire on a BNP office in [Town 1], although the applicant was vague about this and did not provide any evidence to support this claim.
§ The applicant said that, during the period of the caretaker government (2006-2008) and after the AL’s election victory in late 2008, BNP members were targeted for extortion, held to ransom and accused of being terrorists. Furthermore, in response to these pressures, the party itself started to fracture.
§ The applicant claimed that in 2011, a party colleague [Mr E] was in jail, and he provided his bail money and financial support. [Mr E], writing in May 2017 as ‘[senior office bearer] of [Town 1] [JCD], confirmed this account, and gave oral evidence to this effect.
- AL activists learned about the applicant’s support for [Mr E]. One day, they confronted him and demanded the equivalent of $[amount range]. The applicant ended up paying a lesser sum, $[amount]. Some AL students – at a junior level compared to the activists who had approached him – caught wind of this, and also demanded money. In response, the applicant contacted an AL youth leader, who insisted he pay the demanded sum. The applicant, fearing that these demands would escalate if he complied, went to Dhaka – in ‘hiding’, until the next ship assignment.
The Tribunal noted at hearing that the applicant had travelled extensively, including prior to 2014, countries such as [two countries], where he could have sought protection if necessary. (The Tribunal found it difficult to match exactly the chronology provided on his protection visa application form with the applicant’s own account of his travels to and from Bangladesh, but was satisfied that he visited these countries during the general period). The applicant replied that he had a good reputation locally, and at that stage did not fear direct harm from AL figures. He clarified that he operated more or less in ‘safe mode’, by making financial donations and otherwise not engaging in open political activities. As a result, AL figures were not really aware of his role.
The Tribunal observed that, even after 2011 – when he claimed that several AL gangs directly tried to extort him, and he went into hiding before leaving the country again – he visited (at least) [three countries]. The applicant replied that this was a good time in his career in the merchant navy. He did not seek protection in other countries, as he lived in hope that, even in the lead-up to the 2014 elections, the BNP would gain power. The Tribunal finds this to be difficult to reconcile with country information about the AL’s violent pursuit of BNP opponents from early 2009. It is concerned that the applicant’s argument is expedient, and not based on facts or his genuine experiences and fears.
Events in 2014
The applicant claimed that, although the AL had been in power since early 2009, it was during 2013 and 2014 that the AL leadership and its student wing became more violent, and started to collaborate with the police more.
The applicant claimed that on his return to Bangladesh in early 2014, he invested in a friend’s [business], purchasing a 50 per cent share (he appeared unsure about the exact share). The applicant said that there was no paperwork involved, implying it was simply a deal between friends. The applicant said that he used to spend time there, and he surmises that this is how his political enemies came to associate him with it. The Tribunal notes that the applicant’s investment in a local business suggests some degree of confidence in the local economy. It is somewhat at odds with his description of Bangladesh’s security and political environment at the time, and adds to the Tribunal’s doubts about his claimed political activism with the BNP.
Attack in April 2014, in [Town 2], Chittagong: On [a date in] April 2014, about 15 armed men, mostly in their [age range], came to shop. The applicant knew one of them as an AL person, but he did not recognise the others. He confirmed in his mind that they were political people, as they mentioned the names of senior AL leaders. The men verbally abused the applicant and the BNP, saying that he needed to have his legs broken and to be shot. They struck him, using (the applicant believes) hockey sticks and bamboo rods. They also stabbed him on the thighs and arms.
The applicant claimed that it was not possible to attend government hospitals for treatment in Chittagong or Dhaka, as they would insist on the preparation of a police medical report, which would in turn cause more problems with his political opponents. Instead, he travelled from [Town 2] (where the shop was) to a friend’s village, about two hours away. He was bleeding profusely during the trip. He said that a friend tied a tourniquet to stem the bleeding, though the applicant still nearly passed out.
The applicant presented a medical certificate, in poorly legible English (on a Bengali language proforma). It is undated. The medical person wrote that the applicant, [age] years of age, has a ‘history of assault’, and presented with ‘simple’ (superficial) wounds on his left hand, leg and thigh. In response to the Tribunal’s surprise about his age – which would have been correct if written in 2016, not 2014 – and the mention of his ‘history of assault’, the applicant said that the friend who accompanied him probably gave the doctor this information. As for the three specific wounds – and no mention of other injuries from being beaten by a group of men with sticks – the applicant said that the doctor only recorded the wounds that needed treatment. The applicant claimed that, about four or five days after this incident, the AL people went to his family home, and threatened his father.
The Tribunal flagged a number of concerns about this claim. These are, in summary:
§ The trigger for this attack is unclear. According to his own claims, the AL had previously threatened him verbally and demanded money, but he did not feel that any such incidents (or the need to be in ‘safe mode’, by acting cautiously) required him to seek protection abroad. He was absent from Bangladesh during most of the campaign for the general elections, which were held on 5 January 2014. In the Tribunal’s view, his return in February 2014 and his decision to invest in a friend’s local [business] are difficult to reconcile with the applicant’s current claim that he was a political activist, and in precarious circumstances.
§ There is no persuasive evidence to suggest that the applicant took steps to avoid AL activists locating him on his return, or indeed that he had any need to do so. The applicant’s decision to spend time in the shop rather than on any political activities reinforces the Tribunal’s doubts that he had any genuine political interests. Furthermore, it is puzzling why AL men tracked him down to the [business].
§ The Tribunal found the applicant’s account of the attack and its immediate consequences unconvincing. It is sceptical that a group of 15 men would verbalise the reasons for their attack in the way that the applicant described; and that such a large armed group would inflict a small number of specific wounds. It finds it difficult to believe that the applicant’s friends drove him for two hours, while he was bleeding profusely, supposedly because there were no private clinic or treatment options other than government hospitals in Chittagong. Finally, the Tribunal does not accept the applicant’s claim that the medical certificate contains some incorrect information – that he was [age] years old at the time, and had a ‘history of assault’ – was the result of his friend providing incorrect information to the doctor at the time. Instead, this points to a document that has been made to order, most likely in 2016, on the basis of incorrect information.
The applicant told the Tribunal that other BNP colleagues had suffered similar attacks, and had had to leave the area. The list of names included [Mr E], the same person who wrote several letters in 2016 and 2017 in his claimed capacity as [senior office bearer] of the JCD in [Town 1]. In relation to his family – the applicant had written that the AL supporters ‘used to threaten and harass [his] family’ – he commented that his father used to be a member of the BNP, but is no longer active. The AL supporters sometimes ‘tease and taunt’ him.
Aftermath of the attack: The applicant wrote that, after the attack, he went into hiding, first in Noakhali. However, he also mentioned at hearing that he had started renovating the family home in [Town 1] in 2013, and had to oversee the completion of that work so that his parents could live in comfort. This was his responsibility as their [son]. During this period, he had to pay extortion money to the AL. (In a similar vein, the applicant said in a speech in [Australia] that he had to pay the local police and AL cadres Tk[amount range][9] to build his home.)
[9] Approximately $A [amount range] at current exchange rates.
The Tribunal wondered why, if [Town 1] was an AL stronghold and he and his family were living under constant pressure, he invested time and money into real estate there. The applicant replied that it was a good area, and he had grown up there. Again, the Tribunal sensed a disconnect between the applicant’s portrayal of his attraction to and continued investment in that area, and his claim that it is an AL stronghold where he (and other BNP activists) can no longer stay in safety, and where his family is subject to ongoing threats and harassment.
The applicant claimed that, after the claimed attach in April 2014, he went into hiding in different parts of Bangladesh. Asked about his activities and income, he explained that he had about $A[amount] with him, and could afford to travel around. He did not have any documentary evidence (photographs, receipts of travel or other proof) to show his residence in different locations. For most of this period, he stayed in hiding, barely venturing out.
The applicant claimed that he nonetheless continued in his formal position as [position] for the [Branch 1] JBD throughout this period.
§ In practice, this meant that he remained in contact with JBD (BNP youth wing) people in Chittagong, and, if they organised political processions, he would return to participate. He felt obliged to attend, because of his position. He initially said that he used to travel from his places of hiding – for instance, Bogra or Dhaka – attend the political gathering, and return to his location later the same day. In response to the Tribunal’s comment that a return trip from Bogra to Chittagong was not feasible, he qualified his earlier statement and said that he would arrange overnight accommodation somewhere en route to allow him to attend political events in Chittagong.
§ The applicant said that he took the precaution of regularly changing the SIM card in his telephone, and he initiated contact with his family and BNP colleagues during this period.

The applicant said that, as a result of his precautions (being in hiding, and changing his mobile telephone numbers), he was able to avoid further direct harm for a while. Asked why he risked returning to Chittagong for political activities – where he claimed to face an imminent risk from AL opponents – rather than engage in BNP activities elsewhere, the applicant said that he had to fulfil his duties as [position]. Plus, he commented, while there was always a risk of harassment at large political gatherings in Chittagong, he did not feel there was the same immediate risk of more serious harm to him personally.
The applicant claimed that he first went to Noakhali and later, Dhaka. At the Department interview, he referred to an incident some two or three months later, in which the police came looking for him in Dhaka. At hearing, he said that he stayed in a large hostel in Dhaka from October to December 2014. On the morning of [a day in] November 2014, around 8am, some police and civilian security came to the hostel and asked the security guard for his name. The guard took them to the applicant’s room, where he was talking to a friend. As soon as the applicant saw the police uniform, he managed to escape. He did not have many personal items with him at the time, as he was on the move. The applicant said that the police were from a Dhaka police station, but he implied that he knew their purpose. The Tribunal finds this account lacking in credibility. The applicant provided no insight as to how he knew what happened at the front door of the hostel if, as claimed, he fled from the scene immediately.
The applicant initially said that he did not return to Chittagong after that. However, when reminded about his claim that he went back there for protest activity in late December, he revised his comment to state that he did not into hiding in Chittagong. The Tribunal found the applicant’s evidence uncertain and changeable, and does not accept that he was speaking from personal experience at all.
Participation in Hartal, December 2014: The applicant claimed that he went back to Chittagong again [in] December 2014. He described the mass protests and rallies across the country at the time, with the police and AL thugs also acting to disrupt the proceedings. In Chittagong, picketing continued on 28 December 2014. This culminated in a hartal (general strike) on 29 December 2014 and 30 December 2014. The applicant claimed that he stayed in Chittagong and participated in those activities, without incident.
[In] January 2015, he received notice of his next ship assignment. By this time, the situation in the country had deteriorated further, and he was pleased to be leaving. He took the opportunity to visit his parents and siblings in Chittagong, briefly, but, for his safety, met them in his [specified relatives’], for just an hour or so.
The Tribunal signalled its disquiet that, after the Chittagong authorities had allegedly arranged for the police to search for him in Dhaka in [November] 2014 (just over a month earlier), the applicant returned to Chittagong for almost a week, to protest in public and also to visit relatives. The applicant said that the BNP’s political activities were conducted on a cat-and-mouse basis. While there was always a risk of the police nabbing an activist, there was some degree of safety in a large crowd. He took great precautions in meeting up with his family. The Tribunal found the applicant’s overall account to be unpersuasive.
Again, the Tribunal’s enquiries about evidence of the applicant’s participation in those protests (such as photographs or messages) yielded little. He said that he left his mobile telephone on the ship when he deserted; and that he doubts his friends have any records.
False criminal case: The applicant wrote in his original statement of claims that in January 2015, AL supporters lodged a false case against him for participating in the December 2014 protest activities in Chittagong. Once he learned about this, he decided not to return to Bangladesh.
The applicant presented to the Tribunal a copy of a transcript of a (purported) First Information Report, dated [in] January 2015. This alleges that on the Dhaka-Chittagong Highway, in the evening of [a date in] January 2015, the applicant – identified as [a specific number] of [number] alleged offenders – threw petrol bombs, injuring a local rickshaw driver and damaging cars and other property. A purported court document, filed in the [named court] [in] April 2016, includes details from the FIR and records the [number] offenders as having damaged property and looted goods.
The Tribunal noted country information about the prevalence of document fraud in Bangladesh, and hence the need for it to consider carefully what weight to give to the document.
§ The applicant acknowledged that the alleged offence took place in [a named district in] Chittagong, on [the date in] January 2015, more than a week after he left Bangladesh. He said that they simply put his name down as an alleged perpetrator. The Tribunal notes that the applicant repeated this claim in a speech in [Australia] (to a BNP group there), commenting that he did not have the documents to prove that he was out of the country at the time of the alleged offence. (The Tribunal disbelieves that the applicant would be unable to document his departure from Bangladesh, in any form. Whether or not such evidence would assist him in any trumped-up charges is another matter.)
§ The Tribunal noted that the Bengali language text did not appear to be a copy of the actual FIR, but rather a transcript of a purported original (which might or might not be a completely accurate text). The applicant confirmed this, and said that the original is in court.
§ The applicant referred to a letter from his lawyer [dated] 14 January 2017, in which [his lawyer] ‘checked the authenticity of this police case’ and confirmed that they are looking to arrest the applicant.
§ The applicant said that he knew some of the names of other people on the FIR text, and said that one of them, for instance, was [an official] of [Branch 1] JBD.
§ Asked about how he learned about the charges and the provenance of the documents that he had provided, the applicant said that he first heard about them while he was on the ship. His friend [named] later sent the texts to him via courier.
The Tribunal already has significant doubts about the applicant’s claimed political profile and activities in Chittagong through to 2014, not least because of his extended periods abroad and his unsatisfactory account of how he carried out political functions on his return visits to Bangladesh. The applicant’s account of the harm that he (and to some extent his family) suffered at the hands of AL cadres and, to some extent, the Bangladeshi authorities, reinforces the Tribunal’s doubts about his claims, and his credibility as a whole. These concerns, cumulatively, lead the Tribunal to disbelieve his claims of past harm. It also leads it to place no weight on the purported FIR as evidence that the applicant has been subject to false charges relating to events after his departure from Bangladesh.
§ The Tribunal does not accept that the applicant was engaged in BNP politics in [Town 1], or later, Chittagong, and that he was subject to ongoing harassment; at risk in expressing his political opinion or undertaking activities; or that his parents or others warned him from being politically active. The Tribunal also does not accept that, up to 2010, he felt at risk, but not so much as to need protection in countries such as [two of the countries he visited].
§ Extortion is rife in Bangladesh, and the Tribunal accepts that the applicant has drawn on his personal experience when he was forced to pay bribes to the police and others with official or political links. This is particularly so in the case of building construction (his home in [Town 1]), but the Tribunal does not accept that AL cadres singled him out after they discovered that he was making donations to or paying legal fees for BNP activists.
§ The Tribunal does not accept that a large group of AL cadres attacked the applicant in his co-owned shop in April 2014; that was unable to receive medical treatment locally (due to the risk of being referred on to the police, with the potential for reprisals); or that he was in hiding after this period.
§ The Tribunal finds that the applicant remained in Chittagong and [Town 1] after April 2014, completing his family home. It does not accept that he was subject to politically motivated extortion (although it accepts that he had to pay bribes)l that he was in hiding; or that his family was subject to any threats or harassment. The Tribunal does not accept that the applicant undertook any political activities, taking extra precautions to avoid harm.
§ The Tribunal does not accept the applicant was in hiding in Dhaka, Noakhali, Bogra or anywhere else; or that he narrowly escaped being caught by the police and other security agents in October 2014.
§ It does not accept that the applicant participated in any political protests or activities in 2014, including the December 2014 protests and hartal, travelling long distances and at considerable risk, and then travelling back quickly as an added precaution.
§ The Tribunal accepts that the applicant was in Chittagong to farewell family and friends before his most recent journey, but it does not accept that he took precautions such as visiting only his [relatives] or arranging only brief get-togethers.
§ The Tribunal does not accept that the applicant is subject to any charges, false or otherwise, arising from protests in January 2015; or that his name has been falsely added to charges against others.
§ The Tribunal rejects all associated claims of past harm in Bangladesh.
The Tribunal’s assessment of the applicant’s claims of past harm reinforces its concerns that, while he may favour the BNP, his claims to have been politically active in that country are untruthful. The Tribunal notes that the applicant has presented a large amount of material relating to his activities in Australia, and asked that the Tribunal take this into account in assessing his past and future commitment to the BNP in Bangladesh. The Tribunal’s consideration of these follows immediately below.
Political activities in Australia
The applicant has provided a large amount of material demonstrating his political activities in Australia. From the time of his application for review, in May 2016, the focus of the application has shifted towards his political activities in Australia, and associated sur place claims.
The applicant and his representative suggested that this material serves several purposes: (a) it shows the genuineness and duration of his involvement with the BNP in Bangladesh (in other words, the Tribunal should have regard to these activities in assessing the applicant’s past political commitment in Bangladesh); (b) it demonstrates his intention to continue political activism in Bangladesh, and his potential to become an ‘emerging national leader’; (c) his activities in Australia, particular his involvement with protests, contact with BNP figures from Bangladesh and his social media posts, put him at risk of future harm; and (d) his profile adds to the risk that the Bangladeshi authorities will punish him for ship desertion, in a discriminatory and harsh manner. The Tribunal addresses each of these below.
Activities prior to mid-2016
The applicant departed Bangladesh [in] January 2015, and according to his protection visa application, worked aboard ships in [specified countries] before arriving in [Australia] [in] October 2015. He applied for protection in [Australia] some six weeks later, on19 November 2015. He lodged his application for review in May 2016.
The applicant claimed to have joined the BNP-Australian [Chapter] [in] November 2015, more than two weeks before lodging his protection visa application.
The applicant provided a statement from [Mr B], [office bearer] of the ‘Bangladesh Jatiotabadi Dal Australia’ (BNP Australia Inc, also known as the ‘[Group 1]’) dated [in] April 2016, stating that ‘from [November] 2015 [the applicant] is working with our organisation as an ex-student leader and as well as an activist’. He later produced two additional letters from office bearers at the Bangladesh Jatiotabadi Dal Australia Inc, [Mr D] ([office bearer]) and [Mr C] ([office bearer]). The applicant asked the Tribunal to take evidence from all three men, by telephone, but the Tribunal was only able to contact and have a conversation with [Mr B], who confirmed his contacts with the applicant from some time during 2016, and gave some background information on BNP Australia Inc’s operations in Australia. (The Tribunal was unable to take evidence from [Mr C], as he was in a noisy location; and it could not reach [Mr D]).
The Tribunal has examined the material that the applicant has provided, documenting his activities in Australia. At hearing, it signalled its interest in seeing any such material that clearly relates to the period before mid-2016, including any social media postings or correspondence. The applicant told the Tribunal that he opened his Facebook account in October 2015, just after arriving in Australia. He provided many examples of postings from his account, the earliest of which is dated June 2016 (submission dated 8 June 2017, Tribunal file, page 97 reverse).
The Tribunal accepts, on the basis of his statement of 19 April 2016 and [Mr B’s] letter of [April] 2016, that the applicant made contact with the BNP Australia Inc before that date.[10] It finds these statements vague and unsubstantiated, and is not satisfied that these involved any significant amount of activity.
[10] In his submission of 30 June 2017, the applicant expressed concern that [Mr B], in his evidence to the Tribunal, recalled meeting the applicant in 2016. The applicant drew attention to [Mr B’s] letter of [April] 2016, which already refers to him having met the applicant. The Tribunal accepts that [Mr B] and the applicant met before [that date in] April 2016 (though not necessarily in November 2015).
The Tribunal accepts that in June 2016, the applicant opened a Facebook account in the name [Facebook Profile name]. This name bears minimal resemblance to his real name, except that he later added his middle name [to] his profile name.
Activities after mid-2016
The applicant has undertaken a range of activities associated with the BNP Australia Inc, which he also referred to as [Group 1]. It appears that there are several Bangladeshi groups supporting the BNP in Australia, and this particular faction is linked with [Mr B], who referred to himself in the letters of [April] 2016 and [May] 2017 as ‘[office bearer]’. The applicant claims to have joined the BNP-Australian Chapter [in] November 2015, and to have later functioned as [an office bearer] of [a local branch of the] BNP.
The Tribunal has before it a large amount of material showing activities that the BNP Australia Inc, [Group 1], has conducted. The applicant said that the group is based in [Suburb 1], and has about 100 members. He knew of other BNP groups in Australia, known as the ‘[name]’, ‘[another group name]’ and one run by [a named person]. He said that [Group 1] serves as an umbrella organisation for various branches, including the [City 1] BNP (which currently has about 30 members, and for which the applicant is [office bearer]), the JBD and the JCD. He estimated that there were eight [specified office bearers] in [Group 1], and seven [further office bearers]. The Tribunal explored with the applicant the nature of [Group 1], including its structure and finances, in order to gauge its profile and the applicant’s place within this. It explained that it would need to form a view on whether this was a group of friends or like-minded people, or a body of some greater political significance (including in the eyes of the Bangladeshi authorities).
§ There is no evidence that the group has its own website, social media pages or other online presence to promote its messages or activities.
§ The applicant provided an excerpt from [a public organisations register], which lists the name ‘Bangladesh Jatiotabadidhal (Bangladesh Nationalist/Nation Party) BNP Incorporated, indicating that the association was incorporated at least in the past,[11] but the applicant was unsure if it is currently registered. When asked if there was an organisation chart for [Group 1] (given the high number of formal positions, and its branches), he pointed to a list of names and positions in an email and contacts list in his mobile telephone, all prefaced by the letters ‘A BNP’. When pressed about an organisation chart, he said that it might be being updated.
§ He said that the head of [Group 1] is elected by the [named] Committee of the Bangladesh Central Committee, implying that it is a direct branch of the BNP in Bangladesh.
§ In relation to [Group 1]’s finances, he said that members make occasional donations, but to his knowledge the Group does not keep accounts.
§ The Tribunal’s examination of the applicant’s submissions indicate that, from about mid-2016, he attended various BNP-related events, some of which were obviously political gatherings (with banners and speakers) or formal occasions linked with the party (such as welcoming BNP visitors to Australia). Others appeared to be dinners and other social events. The Tribunal accepts that these took place under the aegis of the BNP Australia Inc, [Group 1]. Apart from the letterhead used in the statements of support, the hiring of a community hall for regular events and the preparation of political banners, the group does not appear to maintain paperwork or current registration, to have accounts or to have any media presence (for instance, the applicant’s own Facebook excerpts do not indicate any links to the BNP Australia Inc as a separate entity).
§ In brief, the BNP Australia Inc appears to be a group of likeminded BNP supporters from the Bangladeshi community in Australia, one of several such groups, who hold political discussion groups, host visiting Bangladeshi (BNP) officials and engage in various social activities (for instance, dinners).
[11] [Deleted.]
The Tribunal accepts, on the basis of the applicant’s oral and documentary evidence, supporting statements and witnesses’ evidence that he has engaged in a range of activities with [Group 1], since at least mid-2016. These include the following (not exhaustive), with the Tribunal’s comments/observation as appropriate:
§ The applicant claims that, as [office bearer] of the [City 1] BNP, he recruited new members; promoted BNP ideologies and [Group 1]’s activities in [City 1]; and contacted people to invite them to various programs. Asked at hearings for the names of any individuals who he had recruited to the BNP in Australia, the applicant replied vaguely that he has invited many people to attend BNP functions.
- He provided a copy of a list of Google contacts, all prefaced ‘A BNP’ with mobile telephone numbers (and no further details). He claimed that these represented members of [Group 1], and he implied that he had these contacts in his capacity as [office bearer] for the [City 1] BNP.
§ He participated in various meetings of [Group 1] in [City 1], particularly anniversaries and other dates of significance to the BNP. He provided a range of photographs showing him at events. These include what appear to be political discussions, held in a community hall (or similar) with BNP banners behind the podium. In some of these, the applicant is seated at the podium or speaking.
- The applicant claims to have given speeches in various BNP programs (events), and provided video footage and the translated texts of some sample speeches. Some of these recount aspects of his protection claims, such as his claim that his claimed role in the JCD in high school and college; and his claim to have had a false criminal case filed against him after leaving Bangladesh in January 2015,
§ The applicant claimed to have welcomed BNP dignitaries from Bangladesh to Australia, such as [Mr F], [details deleted]; and [name deleted], a member of the BNP’s [named] committee.
§ The applicant presented a photograph of him standing [at a venue in named city], with other Bangladeshis, identified as [name deleted] ([office bearer] of BNP, Australia), [Mr B], [Mr C] and [name deleted] ([from] Jubodal, Australia). Others show this group with [an Australian political official]. The applicant claims that [in] February 2018, they handed over a memorandum from the BNP Central Committee to [an Australian political official], and also to [another Australian political official] (not photographed).
§ Photographs of the applicant at various protests, in particular one in April 2018, opposing the visit of the Prime Minister (and AL leader) Sheikh Hasina. In one of these, the applicant wears [clothes] with the script ‘[specified]’, with other provocative messages (‘[specified]’) on other parts of his outfit.
§ The applicant claims that he engaged in ‘online activism’. He provided copies of social media (Facebook) postings from mid-2016, in which he declares himself to be a ‘[deleted]’, and has shared material and posted comments, in Bengali and English. As noted above, the applicant uses a different name in this account; he explained to the Tribunal that he does so to avoid his ‘enemies’ (in other words, AL activists and the Bangladesh authorities) finding him. The Tribunal finds it curious that the applicant claims to have operated as an activist in Bangladesh and Australia (indeed, [office bearer] for a BNP branch in [City 1]), and uses his own image on his Facebook account; and yet he claims that he cannot safely operate the account in his own name.
§ Copies of a Western Union customer receipt in which the applicant transferred sums of about $A 175 to ‘[variant of Mr E’s name]’ and ‘[variant of Mr A]’, in June 2017, together with a series of text messages confirming the transfers. Screenshots of text messages and photographs allegedly sent from [Mr A’s nickname] to the applicant, date-stamped during the second half of 2016, showing among other things street demonstrations. The translated English texts indicate that [Mr A’s nickname] is describing rallies and arrests, and periodically asking the applicant to send money to support their efforts.
§ The applicant offered this as an illustration of his ongoing (and past) financial support for BNP activists in Chittagong. There are similar exchanges date-stamped October and December 2016.

There is widespread country information to indicate that extortion and other corrupt activities are rife in Bangladesh. These may occur in various contexts, such as criminal gain, personal and business rivalries, and political dispute. The Tribunal accepts that the applicant has had to pay bribes, and possibly been subject to extortion (direct or indirect). The Tribunal does not accept that this was politically motivated extortion, or that it involved a large sum. The Tribunal accepts that corrupt conduct occurs at many levels in Bangladesh, including from local authorities; and that it may affect well-off families in areas such as [Town 1] more than others. However, the Tribunal finds there is no real chance of the applicant or his family experiencing extortion or any associated threats amounting to serious harm, for reason of their political preference or any other reason set out in s.5J(1), if he returns to Bangladesh.
For the reasons set out above, the Tribunal does not accept that if the applicant returns to Bangladesh now or in the foreseeable future that there is a real chance he will face serious harm amounting to persecution for reason of his political opinion (support for the BNP), as a businessman (if he decides to invest in or establish any business); or for any other reason set out in s.5J(1).
Ship desertion: The Tribunal accepts that the applicant deserted a ship in Australia. He presented a copy of a letter dated [in] October 2015, indicating that the [relevant authority] lodged a complaint. The letter advises that the applicant has 21 days within which to show cause why legal disciplinary action should not be taken against him, pursuant to the Bangladesh Merchant Shipping Ordinance. The applicant told the Tribunal that his father attended the relevant office (this appears to have been [Government Agency 1]), to confirm that he had deserted the ship. They advised that he must surrender to them on his return to Bangladesh. There has been no further legal action.
The applicant appears to acknowledge that the law dealing with ship desertion in Bangladesh is a law of general application (at least on face value), but he contends that it will be applied against him in a discriminatory way, due to his political affiliation with the BNP and against the AL government. For the reasons given above, the Tribunal does not accept that the applicant was actively involved in the BNP in Bangladesh; or that he ever had any problems due to his political opinion in Bangladesh (that is, his general preference for the BNP). The Tribunal also does not accept that the applicant’s actions in Australia, which have been limited in scope and will not be of adverse interest to the AL government, will lead them to view him as a political adversary.
The Tribunal therefore does not accept that there is a real chance that the law dealing with ship desertion in Bangladesh will be applied discriminatorily in this case because of the applicant’s political opinion in support of the BNP (at least in principle) or against the AL. In the Tribunal’s view, any legal action against the applicant under the law relating to ship desertion will be the result of the non-discriminatory enforcement of a law which applies generally to everyone in Bangladesh. The Tribunal therefore does not accept that one or more of the five reasons set out in s.5J(1) is the essential and significant reason for any persecution which he fears in this context, as required by paragraph 91R(1)(a) of the Migration Act.
The applicant has not argued, and the Tribunal is not satisfied on the material before it, that the enforcement of the law relating to ship desertion would proceed on the basis of any other s.5J(1) ground. There has been no argument, for instance, as to whether there exists in Bangladesh a particular social group consisting of Bangladeshi ship deserters. In any event, although there is a law dealing with ship desertion in Bangladesh, the Tribunal is not satisfied that the fact that such a law exists has resulted in ship deserters in Bangladesh becoming a group distinguished or set apart from society at large; or that they have, over time, become a cognisable social group in Bangladesh.[15]
[15] Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
The Tribunal has considered the applicant’s circumstances and prospects, individually and cumulatively, together with relevant country information. It finds that he does not face a real chance of serious harm amounting to persecution for one or more of the reasons set out in s.5J(1), if he returns to Bangladesh. It is therefore not satisfied that he has a well-founded fear of persecution, for a s.5J(1) reason, now or in the reasonably foreseeable future: s.36(2)(a).
ASSESSMENT: COMPLEMENTARY PROTECTION
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. It takes into account all of the claims and evidence before it, and the findings of fact above; its view of the applicant’s future conduct; and relevant country information.
For the reasons set out above, the Tribunal accepts that the applicant favours the BNP, but does not accept that he was an activist or that the AL government or cadres targeted him, or had any adverse interest in him. In relation to his activities in Australia (apart from his social media presence), taking into account his lack of a past adverse profile in Bangladesh, and the limited scope of his activities, the Tribunal also finds that the AL government has no adverse interest in him.
The Tribunal disregarded the applicant’s Facebook account in its assessment under the refugee criterion, and now takes it into account in assessing his eligibility for complementary protection. The Tribunal notes, first, that the applicant uses a completely different name from his real name. For the reasons stated above, the Tribunal does not accept that he has taken these steps out of fear for his family’s safety. The Tribunal notes that the applicant has recently added his middle name to his profile; that he has posted his image on his Facebook account; and that he has identified BNP groups in Bangladesh and Australia, and other links that could, conceivably allow an interested person to investigate and possibly identify him, if they were so motivated.
The applicant and his representative claimed that the Bangladeshi authorities monitor social media, and have the motivation and capacity to pursue political opponents. The Tribunal notes that tens of millions of Bangladeshis are online, and that there is a wide range of robust debate and political views. It is not aware of any country information to indicate that the authorities monitor the online activities of ordinary persons who favour the BNP or other opposition parties, let alone that they pursue and punish the authors of critical material.
The applicant and his representative submitted that the government is monitoring social media, and they banned Facebook for 22 days, in 2010. The Tribunal received a number of articles concerning the Bangladesh authorities’ monitoring of Facebook. These indicate that the government has pressed Facebook to open a desk for Bangladesh, in order to help curb the spread of fundamentalism and militancy.[16] These articles indicate that an estimated 30 million Bangladeshis use Facebook. The government has lodged a number of complaints, for instance, 203 in the period 2015 to 2016; and that Facebook accepted 114 of these allegations. The articles also refer to a government shutdown of the social media service for 22 days in 2010.
[16] See, for instance: Sun Online desk: Government to Seek Facebook desk to monitor Bangladesh issues: Tarana, 16 March 2017.
The Tribunal accepts from the above that the Bangladesh authorities do indeed monitor Facebook, at least for fundamentalist and militant material. It accepts that the applicant and many Bangladeshis suspect that they may be concerned about political opposition more generally, and could conceivably target that too. It also takes into account that there may have been individual cases where the Bangladeshi authorities have prosecuted individuals for offensive material that they posted online. However, it is not possible to infer from a very small number of Bangladesh requests for Facebook interventions, of the order of a hundred or so a year – against a huge number of Bangladeshi social media users, and the sheer volume of material posted relating to the BNP and politics generally – that the applicant faces a real risk of being singled out and subject to significant harm due to his online activity (and all the more so because he does not use his real name, or have any prior adverse profile).
As noted above, the Tribunal accepts that the applicant deserted ship. The submission of 21 April 2016 notes that section 196 of the Bangladesh Merchant Shipping Ordinance 1983 makes desertion punishable by imprisonment for a maximum term of five years’ imprisonment and a fine of up to one million taka.
The submission contends that imprisonment for up to five years is so severe and disproportionate as to undermine the applicant’s fundamental rights, citing the decision of the European Court of Human Rights in Norris v Ireland (Application no. 10581/83). It also referred to information about prison conditions in Bangladesh and submitted that the arbitrary deprivation of liberty was a violation of fundamental human rights. It also states that the applicant would be detained at the airport for breaching the maritime laws of Bangladesh, that he would be identified as a BNP member and supporter. He then faces a real risk of significant harm, including torture and degrading or inhuman treatment in prison, because he would be considered a ship deserter holding a political opinion against the AL. The Tribunal does not accept, however, given the findings of fact above, that there is a real risk that the applicant will be identified as a BNP activist or member, or that he will be considered a ship deserter holding a political opinion against the AL government.
The Tribunal alerted the applicant at hearing that it has found no evidence to indicate a real risk that the applicant will be imprisoned because he deserted his ship in Australia, if he goes back to Bangladesh. The available evidence indicates that the penalties provided for in the law have never been enforced. It indicates that deserting seamen returning to Bangladesh have been arrested and released on bail but that they have never been imprisoned. And it appears [Government Agency 1] has taken action to cancel their CDCs and to forfeit guarantee money held by [Government Agency 1].[17] The Tribunal finds that there are no 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 be imprisoned, 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 as defined as a result of his having deserted his ship.
[17] [Deleted.].
The Tribunal accepts that the applicant may face other punishment, such as a fine of up to one million taka; that he may no longer be able to work on board ships because his CDC will be cancelled; or that he may have forfeited any guarantee money held by [Government Agency 1]. However, the Tribunal is not satisfied that such action amounts to significant harm as defined in subsection 36(2A) of the Migration Act.
For the above reasons, the Tribunal is not satisfied that the applicant’s circumstances – including his support for and association with the BNP, any future links he may have with the BNP, or the fact of his ship desertion - give rise to a real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as: - (a) to meet the definition of torture; or (b) to meet the definition of cruel or inhuman treatment or punishment; or (c) to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to Bangladesh.
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).
Conclusion
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).
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).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
James Silva
Member

ATTACHMENT A - CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT B - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)    the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)    conceal an innate or immutable characteristic of the person; or
(c)    without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)    the persecution must involve serious harm to the person; and
(c)    the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)    a threat to the person’s life or liberty;
(b)    significant physical harassment of the person;
(c)    significant physical ill‑treatment of the person;
(d)    significant economic hardship that threatens the person’s capacity to subsist;
(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)    disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)    a characteristic is shared by each member of the group; and
(b)    the person shares, or is perceived as sharing, the characteristic; and
(c)    any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)    the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)    protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)    the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)    the person can access the protection; and
(b)    the protection is durable; and
(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 2615

13 June 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Statutory Construction