1606408 (Refugee)

1606408 (Refugee) [2018] AATA 5928 (12 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1606408
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Linda Symons
DATE:12 December 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 12 December 2018 at 2:58pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – imputed political opinion – Bangladesh National Party (BNP) – particular social group – member of a family unit of BNP member – failed asylum seeker – perceived as being wealthy – evidence of applicant’s father – credibility concerns – significant inconsistencies in key aspects of claim – provided false information in Visitor visa application – provided fraudulent documents – conduct not consistent with claimed fears – political activities in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 91R
Migration Regulations 1994 (Cth), Schedule 2
CASES
SZGIZ v MIAC [2013] FCAFC 71
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 April 2016 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Bangladesh, was born in Australia on [date]. On 1 October 2015, she applied to the Department of Home Affairs (the Department) for a Protection visa. The delegate refused to grant the visa on the basis that she is not a person in respect of whom Australia has protection obligations. On 6 May 2016, she applied to the Tribunal for a review of that decision.
The applicant’s father, [Mr A], appeared before the Tribunal on 3 October 2018 to give evidence and present arguments for and on behalf of the applicant who is a minor. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicant was represented in relation to the review by her registered migration agent.
The issues that arise on review are whether Australia has protection obligations to the applicant under the refugee criterion or under the complementary protection criterion.
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, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, is 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 he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
Applicant’s claims
In her application for a Protection visa filed on 6 October 2015, the applicant made the following claims:
·Her father is a member and supporter of the Bangladesh Nationalist Party (BNP). Due to his political opinion, activities and profile as a political activist she will be targeted by his political opponents for revenge.
·As her father has been in Australia for a long time, her family will be perceived as being wealthy and criminal gangs will abduct her to extort money from her father.
·She fears serious harm if she goes to Bangladesh including abduction, torture and death.
·She fears that she cannot get help from the Police because the Police are under the influence of the Awami League (AL) government. She cannot relocate within Bangladesh.
The applicant has provided to the Department copies of her Birth Certificate, the bio data page of her Bangladeshi passport, eight photographs, two letters dated [in] May 2014 from the Bangladesh Jatiotabadi Dal Australia in relation to the applicant’s parents and country information.
The applicant’s migration agent submitted an 80 page written submission dated 22 February 2016 to the Department. The submission referred to country information, previous decisions of the Tribunal and why the applicant satisfied the criteria for the visa. It contained 95 links to country information and quotes, out of context, from reports in the media. Copies of the country information referred to were not provided. In his submission, the applicant’s migration agent stated that the applicant fears that she will be seriously harmed if she goes to Bangladesh for the following cumulative reasons:
·Her imputed political opinion of holding and supporting the political ideologies of the BNP.
·Her membership of a particular social group being a member of a family unit of BNP members.
On 25 February 2016, the applicant was invited to attend an interview with the Department. Her father attended and gave evidence for and on her behalf as her guardian and carer. On 22 April 2016, the Department found that she was not a person in respect of whom Australia has protection obligations.
The applicant has provided to the Tribunal a copy of the bio data page of her passport.
Receiving country
The applicant claims to be a citizen of Bangladesh and has provided a copy of her Bangladeshi passport to the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that she is a citizen of Bangladesh. The Tribunal finds that Bangladesh is the receiving country for the purpose of assessing her claims for protection under the refugee criteria and the complementary protection criteria.
Third country protection
The Tribunal finds that the applicant is outside her country of nationality. There is no evidence before the Tribunal to suggest that she has a right to enter and reside in any country other than her country of nationality.
Assessment of claims
The evidence before the Tribunal indicates that the applicant’s father, mother and older brother arrived in Australia [in] February 2010 as holders of [Visitor visas] that were valid [until] March 2010. On 1 March 2010, they lodged an application for Protection visas on the basis that the applicant’s father was a BNP activist, was harmed previously in Bangladesh and would face serious harm in the future. On 25 October 2010, the application was refused by the Department. On 22 November 2010, they applied to the Refugee Review Tribunal (RRT) for a review of that decision. On 18 February 2011, the RRT affirmed the decision of the Department. They then unsuccessfully sought judicial review of that decision in the Federal Magistrates Court (as it was then called), the Federal Court of Australia and the High Court of Australia.
The applicant’s father, mother and older brother subsequently lodged a second application for Protection visas on 4 October 2012. This application was found to be a valid application on 13 August 2013 as a result of the decision of the Federal Court in the case of SZGIZ.[1] On 15 December 2014, the Department refused the application. On 23 December 2014, they applied to the RRT for a review of that decision. On 3 July 2016, the Tribunal (differently constituted) affirmed the decision of the Department. On 26 July 2016, they sought judicial review in the Federal Circuit Court (FCC). On 23 October 2018, the FCC dismissed the application. On 7 November 2018, an appeal was lodged in the Federal Court. That appeal is currently pending.
[1] SZGIZ v MIAC [2013] FCAFC 71.
During the hearing, the Tribunal heard evidence from the applicant’s father. He stated that his evidence was given for and on behalf of the applicant as her guardian and carer as she is a minor. The Tribunal discussed with him his family, his education, his employment, where he lived in Bangladesh, his involvement with the BNP in Bangladesh and Australia, why he left Bangladesh, why he fears returning to Bangladesh and why the applicant would be at risk of serious harm or significant harm if she goes to Bangladesh. The Tribunal found aspects of his evidence to be vague, evasive, implausible, contradictory and unconvincing. There were many inconsistencies in his evidence and he made new claims during the hearing. He was unable to provide a consistent and coherent account of events.
The applicant’s father gave evidence that his parents have passed away. He stated that he is the youngest sibling in the family and has [a number of older siblings] who all live in their village. He stated that his family members are not involved in politics. He stated that he used to be a [Occupation 1] and [worked for an employer] between 1992 and 2001. He stated that he received a small income from this. He stated that he moved to Dhaka in 1994 and attended University from 1994 to 2000. He stated that he was unemployed between 2001 and 2004 and was supported by his father and brothers. He stated that in 2004 he became a [Occupation 2] and ceased being a [Occupation 2] in 2009. He stated that he was thereafter unemployed until he left Bangladesh [in] February 2010 to travel to Australia.
The applicant’s father gave evidence that, prior to leaving Bangladesh [in] February 2010, he lived with his brothers in a suburb of Dhaka or with his in-laws in a different suburb of Dhaka. He then stated that he lived in Dhaka between 1994 and 2010 in different residences and moved regularly when the rent went up. He stated that prior to 1994 he lived in his village.
The applicant’s father gave evidence that he became a member of the BNP when he was studying at school in [year]. He stated that he was [Age 1] at the time. The evidence before the Tribunal indicates that he was born on [date] and he would therefore have turned [Age 2] in [year] not [Age 1] as claimed. When asked what he did as a member, he stated that they ran programs in their local area. When asked for further details about these programs, he stated that they participated in celebrations on special occasions. The Tribunal has serious doubts that he would have participated in BNP celebrations at the age of [Age 2] in view of his evidence that his father was not involved in politics and none of his older brothers or sisters supported any political party.
The applicant’s father gave evidence that after he enrolled at University in Dhaka he became involved in the BNP and was appointed [Position 1]. He subsequently gave evidence that after he stopped being a [Occupation 1] he was appointed [Position 1] of [an association]. He gave evidence that between 1994 and 2003 he was invited to BNP celebrations on significant dates such as Khaleda Zia’s birthday, attended meetings, processions and sometimes protests, accompanied leaders when they visited rural and remote places and participated in fund raising for the community when there were floods. He stated that once he became a [Occupation 2] in 2004 he could not continue these activities. He subsequently changed his evidence and stated that after he became a [Occupation 2] he continued his involvement with the BNP. He stated that he attended big anniversary celebrations when he was [not working].
The applicant’s father gave evidence that when the AL came into government in 2008 it became difficult to continue his job as a [Occupation 2]. He stated that [Occupation 2] who were involved with the BNP were targeted, tortured and harassed. When asked how he was tortured, he responded that they gave them “mental pressure” and threatened to transfer them to different places. He stated that he had previously worked in different [locations] and was then transferred to Chittagong. He stated that he did not want to go to Chittagong so he pretended that he was sick and did not take up his position in Chittagong. When asked how long he pretended to be sick, he initially stated two to three months and later stated five to six months. He stated that he bribed someone at the [management] level to cancel his transfer and stayed at home. He stated that he provided them with Medical Certificates and took sick leave for six to seven months. He stated that the government was “chasing” him after that so he applied for a visa and came to Australia.
The Tribunal asked the applicant’s father whether he had any other problems in Bangladesh because of his involvement with the BNP. He responded that he did. He stated that he was beaten on the street a few times and on one occasion in March 2008 was left unconscious. He stated that he was taken to hospital. He stated that he was in a rickshaw when it was stopped by three or four people who were armed with firearms and sticks. He stated that they were from the AL and knew him. He stated that they beat him with their sticks. The Tribunal pointed out that if they knew him they would have known that he was a [Occupation 2]. When asked why they would beat a [Occupation 2], he then changed his evidence and stated that he was returning from a political event at the BNP party office, was wearing a party hairband on his head, they recognized the party hairband and attacked him.
The Tribunal asked the applicant’s father whether he suffered any injuries as a result of being beaten with sticks. He initially stated that he had an injury and that was why he was hospitalised. He stated that he was not sure if he had some breathing problems. He stated that he had some cuts and marks on his body. He stated that the attackers beat him on his back and kicked him on his side and he became unconscious. He then stated that he had a cut on his leg and a bruise on his back. He then stated that he was bleeding on his back. When asked whether he had any other injuries, he stated that he had marks and bruises on his body and was bleeding from his nose. He then stated that he was hit on his eye. He stated that he received medical treatment at the hospital and was in hospital for a week. When asked whether he took any action to prosecute his attackers, he stated that he [made a report at the] Police Station but it did not help much. When asked whether his attackers were charged, he responded that they were not. He stated that the AL was in power “so who would charge them?”
The Tribunal is of the view that if the applicant’s father’s attackers knew him they would also have known that he was a [Occupation 2]. The Tribunal finds it implausible that AL supporters would have been that foolhardy that they would have attacked a [Occupation 2] and left him injured and unconscious.
The Tribunal asked the applicant’s father whether he had any other problems in Bangladesh because of his association with the BNP. He responded that from 2008 “AL people” threatened to kidnap his son. When asked how many times this happened, he responded that if he went on the street they threatened to kidnap his wife and son. When asked whether people on the street would randomly make these threats, he responded that he was well known in the area because he followed the BNP and when he was on the street in a rickshaw people would stop the rickshaw and threaten him. He stated that if his son needed to see a doctor his relatives would take him to the doctor. He stated that he was threatened that if he did not leave the BNP they would “put him in a cross fire”. When asked when he received these threats, he responded February 2008, March 2008, April 2008. He stated that whenever they saw him they threatened to kill him.
The Tribunal asked the applicant’s father what he did about these threats. He responded that he prayed to God. When the Tribunal reminded him that he was a [Occupation 2] and asked him whether he did anything as a [Occupation 2], he responded that everything was in their hands, they were in power and there is no justice in Bangladesh. When asked whether he had told the Tribunal about all the problems he had in Bangladesh, he responded that he had and there was nothing else.
The Tribunal discussed with the applicant’s father his involvement with the BNP in Australia. He gave evidence that he became involved in BNP Australia in 2010. He stated that he participates in anniversary celebrations. He stated that he also went to the High Commission in Canberra for a protest and they provided the Prime Minister with a statement when Khaleda Zia was placed under house arrest (December 2013).[2] When asked which of the BNP Australia organizations he belonged to, he responded Jatiyabodi Dol. He stated that he has held the position of [Position 1] since the end of 2017. He stated that prior to that he was the [Position 2] of the Sheskta Sesal Dol. He stated that he joined this wing of BNP Australia at the end of 2017.
[2] Bangladesh's former Prime Minister Khaleda Zia 'under house arrest', The Telegraph,30 December 2013. (>
The Department has been provided with a letter dated 13 May 2014 from BNP Australia which states that the applicant’s father was [Position 3] of the Bangladesh Jatiotabadi Chatra Dol at [Institute 1] from 1995 to 1999. It states that he was also [Position 4] of the Bangladesh Jatiotabadi Jubo Dol, [Thana 1] Branch in Dhaka city south. It states that in Australia he has been [Position 5] of the Bangladesh Sheccha Shebok Dol since 2011. It states that he joined BNP Australia after he arrived in Australia and attends all activities.

The Department has also been provided with a letter dated 13 May 2014 from BNP Australia in relation to the applicant’s mother. It states that she is [Position 5] of the Bangladesh Jatiobadi Mohila Dol. It states that she has always actively participated in various party occasions and meetings. As she did not attend the hearing, the Tribunal was unable to discuss this letter with her.
The evidence given by the applicant’s father to the Tribunal in relation to his involvement with the BNP in Bangladesh and the problems he had as a result is not consistent with his previous evidence. His evidence is also not consistent with the documentary evidence provided to the Department. This raises concerns in relation to the credibility of the claims made on behalf of the applicant for the following reasons:
First, in his first application for Protection visas, the applicant’s father claimed that his involvement with the BNP began when he was at University in Dhaka. During his first hearing before the RRT on 27 January 2011, he changed his evidence and stated that his involvement with the BNP began when he was at school in his village. In his first application for Protection visas, he claimed that he was attacked by AL supporters on one occasion in February 2009. He subsequently claimed that he was assaulted by AL supporters on a number of occasions. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that the inconsistencies in his evidence raised concerns in relation to his credibility and the veracity of the claims that he had made on behalf of the applicant.
The applicant’s father responded in words to the effect “what can I say? I want some protection from the Tribunal for their safety.” This response does not address the issues raised with him or alleviate the Tribunal’s concerns.
Second, during the hearing the Tribunal asked the applicant’s father a number of questions in relation to the problems he had in Bangladesh because of his involvement with the BNP. He confirmed that he had told the Tribunal about all the problems he had in Bangladesh. His evidence to the Tribunal was not consistent with the claims he made in his first and second applications for Protection visas. In his first application for Protection visas, he claimed that the Chatra League filed a false case against him in relation to an incident at [Institute 2 in] February 2009. He subsequently claimed that there were several cases filed against him. During the process of his second application for Protection visas, he claimed that there were thousands of cases against him. He did not refer to any cases in his evidence to the Tribunal even though he was given many opportunities to do so. He had previously made new claims during his evidence which kept getting bigger and more extravagant. He did the same during the course of his evidence to the Tribunal.
The Tribunal put this information to the applicant’s father, pursuant to s.424AA of the Act, and noted that the inconsistencies in his evidence raised concerns in relation to his credibility and the veracity of the claims that he had made on behalf of the applicant. He responded that his brain does not work and he is suffering from mental stress. He stated that he is not sure what he is going to do. He stated that it has been 8 to 9 years. He stated that he cannot give a consistent account. He stated that he is now in a stressful situation. He stated that when he goes to the doctor he cannot talk to the doctor. He stated that if the Tribunal wants it he can provide a Certificate from his doctor.
The Tribunal accepts that, with the passage of time, it may be difficult to remember the finer details of incidents. However, the Tribunal is not satisfied that this explains the significant inconsistencies in his evidence over time and even within his evidence to the Tribunal over the space of a few hours. The Tribunal accepts that he may have found it stressful giving evidence before the Tribunal. However, the Tribunal notes that this is the third application for a Protection visa that he has been directly involved in and given evidence in and that he now has considerable experience in giving oral evidence to the Department and the Tribunal and in appearing in Courts.
The applicant’s father claimed that he is suffering from mental stress but has not provided the Tribunal with any psychological evidence of this. He is represented by an experienced migration agent and has had a considerable amount of time after the hearing to provide further evidence in relation to his mental health if he wished to do so. The Tribunal had the benefit of observing him during a lengthy hearing and is satisfied that he understood the proceedings and the questions asked of him and was able to participate in the hearing in a meaningful way. His response to these concerns does not alleviate the Tribunals concerns.
Third, in his first application for Protection visas, the applicant’s father did not make any claims in relation to warrants being issued against him. During his first hearing before the RRT on 27 January 2011, he claimed that several arrest warrants were issued against him. When the Tribunal Member noted that he had not been arrested despite these outstanding warrants, he then made a new claim that he was in hiding. During his evidence to the Tribunal he did not make any mention of arrest warrants despite the many questions the Tribunal asked him about the problems he had in Bangladesh and the many opportunities he had to do so.
The Tribunal put this information to the applicant’s father, pursuant to s.424AA of the Act, and noted that the inconsistencies in his evidence raised concerns in relation to his credibility and the veracity of the claims that he had made on behalf of the applicant. He responded “what can I say? My brain is not working”. The Tribunal does not accept this explanation for the reasons given in paragraphs 39 and 40 above and it does not alleviate the Tribunal’s concerns.
Fourth, the applicant’s father gave evidence to the Tribunal that in March 2008 he was attacked by “AL people” and left unconscious. He gave evidence of the injuries he suffered and the treatment he received in hospital. His evidence was significantly different to the evidence he gave previously. In his first application for Protection visas, he claimed that he was attacked in February 2009 and three of his teeth were smashed in. This is not consistent with his evidence to the Tribunal that he had a cut on his leg, a bruise on his back, bleeding on his back, marks and bruises on his body, bleeding from his nose and was hit on his eye. He previously gave evidence that he was in hospital for 2 months. He gave evidence to the Tribunal that he was in hospital for 1 week.
The Tribunal put this information to the applicant’s father, pursuant to s.424AA of the Act, and noted that the inconsistencies in his evidence raised concerns in relation to his credibility and the veracity of the claims that he had made on behalf of the applicant. He responded that he forgot to mention his teeth. He stated that he cannot recall everything and it was difficult for him to recall everything. He stated that his teeth were smashed in but unfortunately he could not mention everything. The Tribunal accepts that, with the passage of time, it may be difficult to remember the finer details of his injuries. However, the Tribunal finds it implausible that he would remember a cut on his leg or a bruise on his back but not remember his teeth being smashed in. The Tribunal does not accept his explanation. His response does not alleviate the Tribunal’s concerns.
Fifth, the applicant’s father gave evidence to the Tribunal that he was attacked by “AL people” in March 2008, badly beaten and left unconscious. He stated that he had several injuries and was taken to hospital for treatment. He stated that he was in hospital for 1 week. When asked what action he took against his attackers, he stated that he made [a report at the] Police Station but it did not help much. When asked whether his attackers were charged, he responded that they were not. He stated that the AL was in power so who would charge them.
The applicant’s father also gave evidence to the Tribunal that he received several threats. He initially stated that “AL people” threatened to kidnap his son. He then stated that they threatened to kidnap his son and his wife. He then stated that they threatened him that if he did not leave the BNP they would “put him in a cross fire”. He initially stated that these threats were made in February 2008, March 2008 and April 2008. He then stated that whenever they saw him they threatened to kill him. When asked, as a [Occupation 2], what he did about these threats, he responded that everything was in their hands, they were in power and there is no justice in Bangladesh.
The country information indicates that the AL did not win the General Election until 29 December 2008 and formed a government in January 2009.[3] This is not consistent with the claims made by the applicant’s father that the AL was in power when he was attacked by “AL people” in March 2008 and when he received threats in February, March and April 2008 and that was why he was unable to do anything about the attack on him and the threats he received. This raises concerns in relation to his credibility and the veracity of the claims that he made on behalf of the applicant. When the Tribunal raised this as an issue, he responded that if the incident did not happen in his life he would not have come to Australia. He stated that he came to Australia to save his life. He stated that he came here for the safety of his life and the life of his son. This response does not address the issues raised or alleviate the Tribunal’s concerns.
[3] Bangladesh Parliamentary Elections – December 29, 2008, The International Republican Institute. (>
Sixth, in his first application for Protection visas, the applicant’s father stated that he lived at the same address in [Area 1, Thana 2] in Dhaka from 2000 to February 2010 when he came to Australia. During his first hearing before the RRT on 27 January 2011, he stated that he was in hiding and had to move from place to place. He gave evidence to the Tribunal that he moved within the suburbs of Dhaka every year or so when the rent went up. In his first application for Protection visas, he stated that he worked as [Occupation 3] at [Company 1] in [District 1] from March 2004 to February 2010. He gave evidence to the Tribunal that he was a [Occupation 2] from 2004 to 2009.
The Tribunal put this information to the applicant’s father, pursuant to s.424AA of the Act, and noted that the inconsistencies in his evidence raised concerns in relation to his credibility and the veracity of the claims that he had made on behalf of the applicant. He responded that he had already mentioned [Area 1]. He stated that as a [Occupation 2] it was not easy to be granted a visa to come to Australia. He stated that, in that case, he had to “go through a different way”. He stated that he paid money to colleagues to make him [an Occupation 3] and eventually came to Australia. When asked whether he provided false information to the Department in order to obtain a Visitor visa, he responded that his agent did, not him. The Tribunal is not satisfied that this was done without his knowledge or that his agent was not acting on his instructions.
The applicant’s father’s response does not address the issue raised with him or alleviate the Tribunals concerns. It exacerbates the Tribunal’s concerns as it indicates that he was prepared to provide false and misleading information to the Department in order to obtain a Visitor visa. This raises further concerns that he may also be prepared to provide false and misleading information in order to obtain Protection visas for himself and his family.
Seventh, the applicant’s father’s conduct in Bangladesh has not been consistent with his claimed fears. During his first hearing before the RRT on 27 January 2011, he stated that he was in hiding from the Police and the AL and feared that he would be killed. However, he travelled to [Country 1] on two occasions and then voluntarily returned to Bangladesh. Further, he and his family were granted Visitor visas on 15 December 2009 and did not leave Bangladesh until 7 February 2010. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that his conduct was not consistent with his claimed fears and raised concerns in relation to his credibility and the veracity of the claims that he had made on behalf of the applicant. He responded that there is a lot of news in the newspaper and this is what is going on in Bangladesh. His response does not address the issues raised with him or alleviate the Tribunal’s concerns.
Eighth, in support of his first application for Protection visas, the applicant’s father provided to the Department three photographs and a newspaper article dated [in] May 2009 which had a photograph of him. These documents were examined by the Document Examination Unit at the Department. The Document Examination Unit found that the photos were fraudulent as his facial image and that of another male had been added to the photograph. The photograph of him in the newspaper article was a passport photograph of him that had been taken subsequently and was attached to his first application for Protection visas. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that as he had provided fraudulent documents to the Department to obtain a Protection visa it raised concerns in relation to his credibility and the veracity of the claims that he had made on behalf of the applicant.
The applicant’s father responded that it was published in Bangladesh and it was sent to him. He stated that he was not sure about the newspaper and how it happened. He stated that when he heard about it he felt sick. When the Tribunal noted that he must have some knowledge of how the newspaper got the photograph he used to apply for his passport, he responded that someone must have taken it from his home. The Tribunal does not find this response to be convincing and does not accept it.
Ninth, the applicant’s father has provided to the Department a number of documents in support of his previous two applications for Protection visas. Some of these documents are letters of support from the BNP in Bangladesh and in Australia. There are many inconsistencies within these letters and between these letters and his previous evidence in relation to what positions he held in the BNP, in which wings of the BNP he held the positions, in which Branch offices of the BNP he held the positions and when he held the positions. There are also inconsistencies between the letters and his evidence to the Tribunal. The Tribunal put this information to him, pursuant to s. 424AA of the Act, and noted that the inconsistencies in the evidence raised concerns in relation to his credibility, the veracity of the claims that he had made on behalf of the applicant and the authenticity of the documents he had provided from the BNP.
The Tribunal also discussed with the applicant’s father country information that indicates that the use of fraudulent documents is widespread throughout Bangladesh and that it is very easy to obtain fraudulent documents in Bangladesh.[4] He responded that he did not have anything to say. His response does not address the issues raised with him or alleviate the Tribunal’s concerns.
[4] Immigration and Refugee Board of Canada, ‘Bangladesh: Reports of fraudulent documents, 20 September 2010’, BGD103532.E.
Tenth, the Department has been provided with two letters dated [in] May 2014 from BNP Australia in support of the applicant’s case. The first letter is in relation to the applicant’s father and the second is in relation to her mother. The letter in relation to her father states that he was [Position 3] of the Bangladesh Jatiotabadi Chatra Dol at [Institute 1] from 1995 to 1999. It states that he was also [Position 4] of the Bangladesh Jatiotabadi Jubo Dol, [Thana 1] Branch in Dhaka city south. It states that in Australia he has been [Position 5] of the Bangladesh Sheccha Shebok Dol since 2011. It states that he joined BNP Australia after he arrived in Australia and attends all activities.
There are significant inconsistencies between this letter and the evidence given by the applicant’s father. Firstly, he stated that he was [Position 1] in the BNP when he attended University between 1994 and 2000 and not [Position 3] at University from 1995 to 1999 as stated in the letter. Secondly, he did not claim to hold any other office in the BNP in Bangladesh. The letter states that he was [Position 4] of the Jatiotabadi Jubo Dol, [Thana 1] Branch in Bangladesh. Thirdly, he stated that he was initially [Position 2] of the Sheskta Sesal Dol and then joined the Jatiyabodi Dol at the end of 2017 and was appointed [Position 1]. The letter states that he was [Position 5] of the Bangladesh Sheccha Shebok Dol since 2011.
These inconsistencies in the evidence raise concerns in relation to the accuracy of the letter from BNP Australia and the veracity of the applicant’s father’s evidence in relation to his involvement in the BNP in Bangladesh and the extent of his involvement in the BNP in Australia. It also raises concerns in relation to the accuracy of the letter from BNP Australia in relation to the applicant’s mother.
The Department has been provided with eight photographs. They depict the applicant’s father participating in two protests in Australia and attending BNP related functions in Australia. The Tribunal accepts that he attended these activities.
Eleventh, the records of the Department indicate that the applicant’s father arrived in Australia [in] February 2010 on a Visitor visa. He made an application for Protection visas on 1 March 2010 and included her mother and older brother as members of his family unit. This visa application was refused by the Department on 25 October 2010. He then pursued his rights to merits review and judicial review up to the High Court. On 29 February 2012, the High Court dismissed his application. On 4 October 2012, he lodged a second application for Protection visas. On 15 December 2014, the Department refused this application. He then pursued his rights to merits review and judicial review. On 1 October 2015, he lodged an application for a Protection visa on behalf of the applicant.
The Tribunal put this information to the applicant’s father, pursuant to s.424AA of the Act, and noted that this may lead it to the conclusion that he applied for a Protection visa on behalf of the applicant to extend his residence in Australia and not because she or he or the rest of his family are in need of protection. He responded that the Tribunal can see from the country information what is happening in Bangladesh. This response does not address the issue raised with him or alleviate the Tribunal’s concerns.
In view of the above, the Tribunal has serious doubts about the veracity of the applicant’s father’s evidence and the claims made on behalf of the applicant in relation to her father’s involvement with the BNP in Bangladesh and the consequences of that involvement. When the Tribunal raised this as an issue, he responded “no comment”.
The Tribunal also has concerns in relation to the applicant’s father’s evidence and the claims made on behalf of the applicant in relation to his involvement with BNP Australia and his motivation for doing so. The Tribunal discussed with him the provisions of s.91R(3) of the Act and raised its concern that his involvement in BNP related activities in Australia was for the purpose of strengthening his claims for protection and the claims for protection he has now made on behalf of the applicant. He responded “no comment”.

In her visa application, the applicant claimed that as her father has been in Australia for a long time, her family will be perceived as being wealthy and criminal gangs will abduct her to extort money from her father. The Tribunal discussed these claims with her father. When asked on what basis he had made these claims on behalf of the applicant, he responded that it is in the newspaper and is a common happening in Bangladesh. When asked why they would be interested in kidnapping his daughter when they had not kidnapped his son, he responded that they could not kidnap his son. He stated that they were trying to escape those people. He stated that a lot of people were kidnapped and in that situation it was very easy to kidnap his son.
The Tribunal questioned the applicant’s father as to why they would kidnap her if it was very easy to kidnap his son and they did not do so. He responded that they made a few attempts but could not do so. He stated that they kept hiding his son at his father-n-law’s house and his sister’s house. He stated that with the help of God he escaped being kidnapped. In his earlier evidence he stated that threats were made to kidnap his son but made no mention of attempts being made to kidnap his son or his son being in hiding to avoid being kidnapped. The Tribunal has serious doubts about the credibility of these claims. The Tribunal formed the view that he was manufacturing his evidence as he was giving it.
In her visa application, the applicant claimed that she fears serious harm if she goes to Bangladesh including abduction, torture and death. She claimed that she fears that she cannot get help from the Police because the Police are under the influence of the AL government. She claimed that she cannot relocate within Bangladesh. The Tribunal discussed these claims with her father. When asked why he thought this could happen to her, he responded because of his involvement with the BNP. He stated that this is happening at the moment. He stated that they are ordinary people. He stated that the Chairperson of the party has already been arrested. He stated that if they return to Bangladesh the whole family would be killed because they follow the BNP. He stated that people who participate in BNP activities are arrested.
The country information indicates that babies and children are abducted in Bangladesh for various reasons such as childless couples wanting a child,[5] extortion,[6] trafficking[7] and organ harvesting.[8] It indicates that most of the kidnappers are family members or are known to the family.[9], [10], [11]. It indicates that the Police find and rescue children [12] and prosecute the offenders, [13] although there is some limited information to indicate that some Police officers may be involved in the kidnappings.[14]
[5] Abducting and selling babies in Bangladesh, News Bangladesh, 9 February 2015. ( Cops rescue kidnapped boy in Dhaka, 6 held, The Daily Star, 31 August 2018. ( Traffickers prey on lost Rohingya children in Bangladesh camps, Reuters, 8 November 2017. (
[8] Bangladesh organ trade continues unabated, targeting children, the poor, Aljazeera America, 26 December 2014. (
[9] Kidnapped child found in Dhaka, bdnews24.com, 7 May 2014. (
[10] Three children killed after they were kidnaped separately, bdnews24.com, 30 January 2016. ( Ransom could not save child, The Daily Star, 3 February 2016. ( Two-year old rescued 39 days after abduction, Dhaka Tribune, 19 February 2016. ( Kidnapped child found in Dhaka, bdnews24.com, 7 May 2014. ( Kidnapping of children rises sharply in 2015, Dhaka Tribune,30 March 2015. (>
The country information does not support the applicant’s father’s evidence that the applicant will be kidnapped because of his involvement with the BNP. The Tribunal raised as an issue its doubts that there is a real chance or a real risk that she will be abducted, tortured and killed if she goes to Bangladesh. He responded that he is one hundred percent sure that his daughter and son will be killed in Bangladesh. He asked the Tribunal to guarantee that they would not be killed if they returned to Bangladesh.
Country information from DFAT in relation to returnees to Bangladesh states as follows:
DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia.[15]
[15] DFAT Country Information Report, Bangladesh, 2 February 2018.
The Tribunal discussed the above country information with the applicant’s father. He responded that he has been involved in BNP activities. He stated that you can find his name in newspapers everywhere and he can be located easily. He stated that AL followers in Australia supply lists of people involved in the BNP to the Bangladeshi government. The Tribunal has done an internet search of his name. It indicates that there are [a large number of] professionals with his exact name on Linkedin and [several] on Facebook (none of whom are him). There is a prominent academic at [Institute 2] with his name who is referred to in newspapers and on websites. The Tribunal was unable to find any reference to him on the internet. He has not provided the Department or the Tribunal with any evidence to support these claims.
Towards the end of the hearing the applicant’s father gave evidence that he is really sick and is not sure how long he will live. He is not an applicant before the Tribunal but the Tribunal has considered this evidence in the context of what impact it will have on the applicant. When asked about his illness, he stated that he has [Medical Condition 1] and is going to have a CT scan. When asked whether there was any reason why he cannot get treatment for [Medical Condition 1] in Bangladesh, he responded that he does not have much money for treatment. He stated that he will be killed before he can do anything about his [Medical Condition 1]. He has not provided the Tribunal with any medical evidence in relation to his [Medical Condition 1].
The Tribunal has considered the submissions made by the applicant’s migration agent to the Department. In his submissions, he stated that the applicant will be particularly targeted and harmed due to her political opinion and activities. He submitted that due to her “imputed political opinion and her father’s political activities and opinion “her persecutors” will perceive that her views (imputed) antithetic to the government and therefore there is a real chance that she as a member of the family unit of a BNP activist will be considered as an enemy of the AL government. (sic)
The applicant was born in Australia on [date] and was [age] at the time her application for a Protection visa was lodged. She is currently [age]. The Tribunal does not accept that she has a political opinion or has been involved in any political activities or that she will be targeted for these reasons. The Tribunal does not accept that she will be imputed with a political opinion and that “her persecutors” will perceive that her imputed views are antithetic to that of the AL government.
The Tribunal has had regard to the Tribunal's Guidelines on the Assessment of Credibility when assessing the applicant's father’s credibility. The Tribunal has also had regard to the DFAT Country Information Report on Bangladesh and the Department's Policy Guidelines to the extent that they are relevant to the decision under consideration
Findings
Having considered all of the applicant's claims, all the evidence and the submission, the Tribunal finds that her father, who gave evidence for and on her behalf as her guardian and carer, is not a witness of truth. The Tribunal formed the view that he was prepared to say anything to obtain a favourable outcome without any regard for the truth. The Tribunal finds that he fabricated his evidence in relation to his involvement with the BNP in Bangladesh and the problems he had as a result and embellished his evidence in relation to the extent of his involvement in BNP Australia for the purpose of obtaining a Protection visa for the applicant.
The Tribunal accepts that the applicant was born in Australia on [date]. The Tribunal accepts that her parents and older brother came to Australia [in] February 2010 as the holders of [Visitor visas]. The Tribunal accepts that they have twice unsuccessfully applied for Protection visas on 1 March 2010 and 4 October 2012.
The Tribunal does not accept that the applicant’s father was a supporter or member of the BNP in Bangladesh. It follows that the Tribunal does not accept any of his evidence in relation to the problems he had in Bangladesh because of his involvement with the BNP. The Tribunal accepts that after coming to Australia he became involved with BNP Australia and participated in some of the activities organized by them. The Tribunal does not accept that he was or is an office holder in BNP Australia. The Tribunal does not accept that he was or is a high profile activist for the BNP. The Tribunal accepts that he has participated in at least two protests in Australia and has attended anniversary functions at BNP Australia. The Tribunal is not satisfied that this has brought him to the adverse attention of AL supporters or members or leaders in Bangladesh or to the adverse attention of the Bangladeshi authorities.
The Tribunal does not accept that the applicant’s father is referred to in newspapers everywhere and that he can be found easily. The Tribunal accepts that there are numerous other people with his name, such as a prominent academic at [Institute 2], who are mentioned in newspapers and on the internet.
The Tribunal is not satisfied that the applicant’s father is a genuine BNP supporter, member and activist and therefore is not satisfied that he will have any desire to support the BNP or be involved with the BNP on his return to Bangladesh. The Tribunal does not accept that her mother is a supporter, member or officer holder in BNP Australia. The Tribunal is not satisfied that either of the applicant’s parents is of adverse interest to AL supporters, members or leaders or any Bangladeshi authority.
As the Tribunal does not accept that the applicant’s father was a supporter or member of the BNP in Bangladesh or that he was involved in political activities in Bangladesh or that he had/has a profile as a political activist for the BNP or that he was targeted and persecuted in Bangladesh for these reasons, the Tribunal does not accept that she will be targeted for revenge by his political opponents. The Tribunal does not accept that, because her father has been in Australia for a long time, her family will be perceived as being wealthy and criminal gangs will abduct her to extort money from her father. The Tribunal is not satisfied that there is a real chance or a real risk that she will be abducted, tortured, held to ransom and killed if she goes to Bangladesh now or in the reasonably foreseeable future.
The Tribunal does not accept that the applicant will not be able to get help from the Police because the Police are under the influence of the AL government. The Tribunal does not accept that she will not be able to relocate within Bangladesh if she or her parents wish to do so. Accordingly, the Tribunal is not satisfied that she is at risk of serious harm or significant harm because of her imputed political opinion of holding and supporting the political ideologies of the BNP or because of her membership of a particular social group being a member of a family unit of BNP member if she goes to Bangladesh now or in the reasonably foreseeable future.
The Tribunal accepts that the applicant’s father may have [Medical Condition 1]. The Tribunal does not accept that he does not have enough money to pay for his medical treatment in Bangladesh. There is no evidence before the Tribunal to indicate that he will be denied access to medical treatment in Bangladesh for any reason set out in s.5J(1)(a) of the Act.
The Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if she goes to Bangladesh now or in the reasonably foreseeable future.
Does Australia have protection obligations to the applicant under the refugee criterion?
For the reasons given above, the Tribunal is not satisfied that the applicant’s father’s involvement with BNP Australia is otherwise than for the purpose of strengthening his claims to be a refugee and the claims made on behalf of the applicant that she is a refugee. Therefore, the Tribunal is required under s.91R(3) of the Act to disregard this conduct in its assessment of whether the applicant has a well-founded fear of persecution.
Having considered all of the applicant's claims, individually and cumulatively, all the evidence and the submission and in view of the findings above, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for reason of her or her father’s actual or imputed political opinion, membership of a particular social group or any other reason set out in s.5J(1)(a) of the Act if she goes to Bangladesh now or in the reasonably foreseeable future. Therefore, the Tribunal finds that she does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicant under the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether she may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.
The Tribunal has considered the applicant's claims under complementary protection. The Tribunal has accepted that, after her father came to Australia, he became involved with BNP Australia and participated in some of their activities. The Tribunal was not satisfied that his involvement in BNP Australia was otherwise than for the purpose of strengthening his claims to be a refugee and the claims made on behalf of the applicant that she is a refugee. Therefore, the Tribunal was required under s.91R(3) of the Act to disregard this conduct in its assessment of whether the applicant has a well-founded fear of persecution. The Tribunal is mindful that s.91R(3) of the Act does not apply to conduct in the context of complimentary protection.
The Tribunal is not satisfied that the applicant’s father’s participation in two protests in Australia in 2013 and his attendance at anniversary functions organized by BNP Australia have given him a high profile as a BNP activist or brought him to the adverse attention of AL supporters, members or leaders in Bangladesh or the Bangladeshi authorities. Therefore, the Tribunal is not satisfied that the applicant would be at risk of significant harm because of her father’s involvement with BNP Australia if she goes to Bangladesh now or in the reasonably foreseeable future.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if she goes to Bangladesh now or in the reasonably foreseeable future.
Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and the submission the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she goes to Bangladesh now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that 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 she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
The Tribunal finds that the applicant does not satisfy the criteria in s.36(2)(a) or s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Linda Symons
Member

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

[2018] AATA 5928

12 December 2018

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction