1608423 (Refugee)

[2017] AATA 2196

1608423 (Refugee) [2017] AATA 2196 (9 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1608423

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:James Silva

DATE:9 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 09 October 2017 at 8:35am

CATCHWORDS

Refugee – Protection visa – Bangladesh – Political opinion – Bangladesh Nationalist Party supporter – Particular social group – Business person – Religion – Sunni – Inconsistent evidence – Credibility concerns

LEGISLATION

Migration Act 1958, ss 36, 65, 437, 438,499

Migration Regulations 1994, Schedule 2

CASES

MZAFZ v MIBP [2016] FCA 1081

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicants are a married couple from Bangladesh, and their two [children]. The first-named applicant (‘the applicant’, or ‘A1’ in this decision) is a man [from] Jessore. The second-named applicant (‘applicant wife’, or ‘A2’) is a woman [from] Tangail. The third-named applicant (‘A3’) is a [child] born in Bangladesh. The fourth-named applicant (‘A4’) is a [child] born in Australia. All the applicants claim to have Bangladeshi nationality.

2. The first three applicants arrived in Australia [in] April 2014, as the holders of [temporary] visas. They applied for Protection (Class XA) visas [in] July 2014. The applicant attended an interview with the delegate of the Minister for Immigration [in] September 2015.

3. [In] May 2016, the delegate refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

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

5. The first- and second-named applicants appeared before the Tribunal on 16 and 23 June 2017, to give evidence and present arguments. 

6. The Tribunal has concluded that the decision under review should be affirmed. In brief, the applicant claims to have been a supporter and mid-level leader of the opposition Bangladesh Nationalist Party. He claims to have been subject to sustained targeting and harm, including physical assaults, false cases, property damage and other harm, due to his political profile. The Tribunal accepts that the applicant supports the BNP, and has experienced some problems in [a certain] industry. However, the applicant’s conduct is inconsistent with his claimed fear of persecution or significant harm, and the Tribunal concludes that his claims lack credibility. It finds that Australia does not have protection obligations in respect of any of the applicants. Its reasons follow.

   Criteria for a protection visa

7. The issue in this case is whether the first-named applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.

   CLAIMS AND EVIDENCE

   Protection claims

8. The applicant claims to be a staunch Bangladesh Nationalist Party (BNP) supporter and ‘mid-level leader’ in the Uttara area of Dhaka, and to be a local [business owner].

9. The applicant’s claims have emerged in a somewhat piecemeal manner, and it has been difficult to obtain a single clear and authoritative account. In a nutshell, he claims that he was a BNP student activist, and subject to an attempted attack in 2003. He remained active in the party’s student wing, working closely with local BNP candidates and assisting with organising political activities. Later he joined the party’s local youth [wing]. The applicant claims that AL figures have on various occasions physically attacked and intimidated him, attacked his business premises, stolen a car, extorted money, filed false criminal cases, and harassed his family. The police arrested him and tortured him overnight in late 2013, trying to obtain details of BNP figures.

10. [In] January 2014, some men presenting as police personnel raided the applicant’s home, stealing cash and jewellery, manhandling the applicant and his family, and threatening to kill the applicant and kidnap his family members. This was the turning point that prompted the applicants to leave Bangladesh together. The applicant claims that, since arriving in Australia, AL people have come looking for him in his home district of Jessore.

11. He claims to fear that politicians and associated thugs of the ruling Awami League (AL) will target him if he returns to Bangladesh, and that he will be arrested, physically and mentally harassed, subject to extortion, and eventually killed. He also claims to fear that these people will target the applicant wife and their children.

    Background

12. The applicant is a [age] year old man originally from Jessore, Bangladesh. He is a long-term resident of the capital, Dhaka, but maintains close links with his place of birth. He is a Bengali and a Sunni Muslim. His languages are Bengali (Bangla) and English.

13. The applicant completed his secondary school examinations in [year] (SSC) and [year] (HSC). He was admitted to [a college] in Dhaka, in February [year]. He studied there until March [year].

14. From June 2002 until April 2014, the applicant worked in [a certain] sector. He started as a trainee, and then held [various positions] in [companies] in [Dhaka] and Gazipur (2008-2010). In Dec 2010, the applicant started a [business], [which] had an office in Uttara (Dhaka). The company gained a good [reputation], and in May 2012, the applicant set up a [business] in Ashulia-Savar (a suburban area near Dhaka).

15. The applicant’s immediate family continues to live in Jessore. He has a brother who has completed academic studies [overseas].

16. The applicant parents married in Dhaka in December 2003.

17. The applicant wife is a [age] year old woman from Tangail, also a Sunni Muslim, and a speaker of Bengali and English. She studied for 17 years, and completed a university course in Dhaka in October [year]. Her parents live in Tangail; her father died in December 2014, while the applicants’ protection visa application was being processed. She has married sisters living in Tangail and Bogra. She holds a Bangladeshi passport issued in [2010], valid till [2015]. She travelled to [Country 1] [in] January 2014, together with the other applicants.

18. The third-named applicant is [an age] year old boy born in Jessore.

19. The applicant entered Australia on a Bangladesh passport issued in [2011], valid for five years. He indicated on his protection visa application form (Form 866C) that he had undertaken prior travel [to various countries]. The applicant renewed his Bangladesh passport [in] 2016. He told the Tribunal that, although he claims to be subject to outstanding charges, the Bangladesh authorities only cause problems if a person is wanted for war crimes.

20. The applicants were granted Australian [temporary] visas [in] December 2013, and arrived in Australia [in] April 2014. As noted above, they lodged their protection visa applications [in] July 2014. In Australia, the applicant works for a company [supplying] [goods] from Bangladesh.

21. The applicant indicated on his application form that there is pending legal action against him in Bangladesh, [this] forms part of his protection claims, and is discussed in detail below.

22. The fourth-named applicant was born in Australia on [date]. He was automatically taken, at birth, to have applied for a visa of the same class as his parents, and this application is taken to be combined with his parents’: reg. 2.08(1)(d). He was included in the decision under review.

23. The delegate, in the decision subject to this review, accepted that the applicant was involved with the BNP in Bangladesh, but did not make specific findings of fact about his role and his claimed past harm. The delegate noted country information that members or supporters of the BNP face a low or negligible risk of being arrested, detained or otherwise harmed. He concluded on this basis that the applicant did not face a real chance of Convention-related persecution, and was not eligible for complementary protection.

    Evidence

24. The Tribunal has before it a large amount of material, including the applicant’s submissions and supporting documents. There have been a number of issues in assessing this material, for its relevance and meaning:

    §  The applicants are unrepresented in this matter. They explained to the Tribunal, and provided supporting documents, to show that they approached a migration agent[1] in May 2015 and made arrangements to sit an IELTS test shortly thereafter, but then learned that they were ineligible to obtain skilled migration visas. The applicant indicated that he had been unable to afford the fee for representation during the protection visa application process.

    §  The Department file contains a large amount of supporting documentation, clearly indexed. However, some of the documents are not translated. The applicant claimed that he has been unable to afford translation of some of these materials, including the court documents that form part of his case.

    §  In addition to the indexed materials attached to the protection visa application form, the applicants provided a range of other documents and materials to the Department and the Tribunal.

    -   At the first hearing session in particular, the applicant had a range of documents to hand, and presented these in a disorganised manner.

    -   Some document translations are of a very poor quality, and appear to have been completed by non-native English speakers. In some cases, the written text appears to be a phonetic approximation of the English word, rather than actual dictionary entries.

    -   In the case of some documents, the applicant has failed to provide any translations, despite impressing on the Tribunal their importance to his case. In the most relevant of these, two (purported) court documents, the Tribunal went through these at hearing with the assistance of the interpreter, and is satisfied that the applicant was able to convey their meaning and relevance.

    -   A sizeable portion of the documentation appears unrelated to the applicant’s protection claims, for instance, the applicant wife’s academic qualifications and the family’s social and cultural activities in Australia.

    -   The Tribunal notes that several statements and documents contain dates and other information that are plainly wrong or missing, such as incorrect years. It appears that the texts have been prepared without being checked.  

    [1] [Agent details deleted].

25. Following is the Tribunal’s collation of the material that appears to be relevant to this case.

    §  The applicants’ protection visa application and accompanying forms, completed and submitted [in] July 2014, attached to which was a written statement of claims. (These forms related to A1, A2 and A3.)

    §  Documents relating to the applicants’ identity, travel and background:

    -   Partial photocopies of A1’s, A2’s and A3’s Bangladeshi passports

    -   Birth certificates and ID cards (including teacher and student ID cards) for A1, A2 and A3

    -   The applicant’s Bangladesh driver’s licence

    -   Copies of bank statements, one relating to the applicant’s [company], covering the period April 2013 to March 2014; and another of the applicant wife, covering the period June 2013 to February 2014

    -   Copies of company [documents].

    -   Numerous educational and professional certificates, in particular for the second-named applicant; they are mostly in Bengali and untranslated

    -   A marriage certificate

    §  Documents relating to A1’s protection claims:

    -   The applicant flagged that he would submit copies of documents relating to his protection claims, with translations later.

    -   Photograph of list of BNP student leaders at [a] College, 2003 to 2004 (translation submitted to the Tribunal later)

    -   Photographs purportedly showing the applicant’s injuries and property damage following the alleged attack on his [business] (November 2012)

    -   A DVD containing several videos, apparently showing BNP meetings in halls, with a head table of speakers and a large crowd of mainly seated participants, some of whom shout slogans and hold banners, and appear to be preparing for a demonstration. According to the document files, they appear to be copies of the one video, produced [in] May 2014, of about 13 minutes’ duration. It is not clear whether the applicant appears in the video. The applicant provided a number of photographs of himself, said to have been extracted from this video.

    -   Photocopy of a medical certificate and prescription for the applicant, dated [date] October 2013.

    -   A purported copy of a letter of complaint to [a government agency], dated [date] April 2017, and a receipt for that letter, dated [date] May 2017 (translations provided to the Tribunal). The letter sets out the applicant’s circumstances, including physical beatings and threats by the ‘terrorists’, and financial losses amounting to [amount].

    -   Several newspaper articles, which (according to the applicant) were based on his letter of complaint to the [government agency].

    §  One of these, in poor English, from [a newspaper], [concerns] the applicant directly. (See below).

    §  A Bengali text from an internet article. The applicant provided a very poor translation of this at hearing on 23 June 2017, which was almost unintelligible. The Tribunal searched the web link and confirmed that it is an article from [another news outlet] of [date] 2014. A translation via Google Translate resulted in the title: ‘[deleted]’, and enabled the Tribunal to make sense of the translation that the applicant submitted.

    -   Copy of [cases], untranslated and not further explained. These were subject to detailed discussion at the hearing.

    -   Copy of cheque made out to [Mr A], for [an amount], dated [date] August 2012 (this was allegedly one of the blank cheques that the applicant was forced to fill out in November 2012, which was then backdated).

    §  The Protection visa interview (‘Department interview’) held on [date] September 2015; the recording of the interview is on the Department file.

    §  The applicant presented at the interview further identity documents (including [an Australian] driver licence), and his Bangladesh passport, which shows that he multiple entry visas for [Country 2] (valid from August 2012 to February 2013) and [Country 1] (December 2013 to June 2014.

    §  [In] September 2014, he sent an email to the Department providing further details on some key incidents.

    §  The Protection visa decision record (‘delegate’s decision) dated [date] May 2016

    §  The review application dated 9 June 2016 has attached to it a copy of the delegate’s decision.

    §  A submission dated 16 June 2016 contains a number of links to country information, and an update on the applicants’ circumstances in Australia (together with a large number of supporting photographs).

    §  By submission of 27 June 2016: -

    -   A submission from the applicant containing his comments on the delegate’s decision and reasoning

    -   Supporting documents (unless otherwise noted, photocopies of Bengali documents with English translations), listed below in approximate chronological order. Some of these are translations of documents that the applicant had previously submitted to the Department, without translation.

    §  Return of Warrant, issued by the [Magistrate], Dhaka, [in] May 2013 (together with what appears to be an original)

    §  Receipt for donation of [amount] to the BNP Youth Party, [Dhaka], dated [date] October 2013.

    §  Return of Warrant, issued by the [Court], Dhaka, on [date] February 2014 (together with what appears to be an original)

    §  Return of Warrant (Bail), issued by the [Court], Dhaka, on [date] March 2014.

    §  Return of Warrant (Bail), issued by the [authority], Dhaka, on [date] March 2014

    §  Letter of support from [a] Member of Permanent Committee, BNP, dated [date] May 2014.

    §  Letter from [Mr B], Secretary-General of the BNP Youth Party, [Dhaka], dated [date] May 2014.

    ·     He notes that, following the 5 January 2014 election, the authorities threatened to kill the applicant and they destroyed his business, forcing him to leave Bangladesh.

    §  List of [the college’s] students’ union [officials], undated, bearing the applicant’s name for the period ’03-04’.

    §  A further untranslated document – one apparent original and two copies.

    -   The applicant included excerpts from an email exchange with a Department officer, who advised him on [date] September 2013 that he must provide English translations for any documents that he wished the Department to take into account in its assessment

    §  A post-hearing submission dated 28 June 2017, in which the applicant expands on some of his claims made at the hearing, in a statement: ‘Why will there be harm if I go back to Bangladesh?’.

26. The applicant parents appeared before the Tribunal at a hearing held over two sessions, on 16 June 2017 and 23 June 2017, to give evidence and present arguments. The hearing was conducted in English, in which the first- and second-named applicants are fluent. The applicants are unrepresented in this matter.

27. The Department issued certificates under s.438 of the Act, certifying that the disclosure of information in folios 276, 288 and 291 of the Department file [and] in folios 30 and 31 of [department file] was subject to paragraph 438(1)(a). The certificates stated that disclosure would be contrary to the public interest, as the information related ‘to an internal working document and business affairs’.

28. In light of the Federal Court decision in MZAFZ v MIBP[2], which considered a s.438 certificate with similar wording, the Tribunal finds that the certificates are not valid as they do 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 internal Department checklists; an earlier version of the 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); internal correspondence about the inclusion of the fourth-named applicant in the decision; and a note recording that the applicant had enquired about the progress of his application. The Tribunal advised the applicants of the existence of the certificates, and its view that it was neither valid nor relevant to this decision. They noted this without comment.

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

    Country of reference / receiving country

29. The applicants claim to be nationals of Bangladesh. They have provided copies of passports, speak the national language Bengali, have produced other documents from that country, and are thoroughly familiar with life there. On the available evidence, and in the absence of any contrary information, the Tribunal finds that the applicants are nationals of Bangladesh. Bangladesh is therefore the country of reference for the purpose of assessing the first-named applicant’s refugee claims, and the receiving country when assessing his eligibility for complementary protection.

30. In relation to the fourth-named applicant, Bangladeshi law[3] provides for citizenship by descent, at the time of the child’s birth. This applies also to children born to a Bangladesh citizen (father or mother) outside Bangladesh. The birth must be registered at a Bangladesh Consulate or Mission, but this appears to be an administrative requirement and does not affect the child’s possession of citizenship from birth.

    [3] The Citizenship Act 1951, s.5; the Citizenship (Amendment Act) 2009; and the Bangladesh Citizenship (Temporary Provisions) Order, 1972: see and

31. At the hearing, the applicant (father) said that the Bangladesh High Commission will issue A4 a passport only in Bangladesh, ie. if he goes there. He suggested that this means A4 is in effect stateless, as he cannot obtain a travel document. On further questioning, the father said that he had heard this from others. The Tribunal finds that the fourth-named applicant is a Bangladeshi citizen, and that the Bangladesh authorities’ rules about registration and the conditions in which they will issue a full passport (or other travel document) do not affect his nationality, and do not render him ‘stateless’.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility

1. 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. Although the applicants both speak good English, and were able to present their claims and evidence orally with confidence, the Tribunal takes into account that they are unrepresented, and have not had assistance with the presentation of their written claims and supporting material

2. As noted above, the Tribunal had some difficulty sorting through and evaluating the applicant’s written submissions. It seems that a fair amount of the material submitted to the Tribunal and the Tribunal relate to the family’s bid for permanent residency more generally, as they address their qualifications and their integration into the Australian community. Despite the poor quality of some of the materials relating to their protection claims, the Tribunal considers it important to have examined these closely, in order to determine both their relevance and reliability, and whether they support the applicant’s claim for protection..

3. The Tribunal has a number of overarching concerns in this case, which ultimately go to the credibility of the applicant’s protection claims. At hearing, the applicant impressed on the Tribunal that he knows Bangladeshi political culture, in seeking to explain some of the anomalies and inconsistencies in his claims and evidence. The Tribunal acknowledges that conditions in an applicant’s home country, including local social and cultural factors, are important in assessing the credibility of protection claims. In the present case, however, the Tribunal is concerned that the applicant tried to advance these in a somewhat contrived way, to overcome significant problems with his claims and evidence (particularly in relation to his conduct).

4. First, as flagged at hearing, the Tribunal is concerned that the applicant has exaggerated and misconstrued his profile and his account of his experiences in Bangladesh, in order to give them a political flavour and bolster his protection claims.

   §  The Tribunal formed the impression that the applicant drew on his experiences or knowledge, either directly or indirectly, to some extent. These include his knowledge of and dealings with local politicians (who often have close ties with local businesses); his awareness of corruption, and of illegal activities; various legal disputes that may have involved him; and general criminality. There is, moreover, a range of country information indicating the overlap between politics, business and criminality in Bangladesh; the particular role played by the parties’ student wings and by criminal groups associated with the parties; and the vulnerability of opposition parties, as the government uses the police and other State agents for political reasons.

   §  At the same time, however, the applicant made broad statements that, on closer scrutiny, sometimes did not bear up. Moreover, there is strong evidence to indicate that he conducted his business and political activities right up to the time of his departure from Bangladesh, with no apparent serious disruption; that he continued to own his own home and operate two businesses; and that he and his family made an orderly departure from the country after finalising their financial and family affairs.

5. Second, the applicant’s conduct in Bangladesh and Australia adds significantly to the Tribunal’s concerns. He has claimed to have been subject to various instances of violence, extortion and threats, over a sustained period. As noted on his protection visa application form, he obtained an Australian visa [in] December 2013, yet did not arrive in Australia until [date] April 2014. The applicant provided a number of explanations:

   §  He stated that he had originally only intended to visit Australia for business. It was only after the home invasion [in] January 2014 that he changed his mind and realised that he had to leave the country, together with his wife and [child]. The applicant also said that he obtained the visa in early December 2013, in the lead-up to the January 2014 parliamentary elections. He doubted that the elections would in fact proceed (in the light of boycott calls and violent protests), and in any event, the police were busy dealing with large scale violent protests. In other words, he felt less in immediate danger.

   -   The Tribunal finds these explanations unpersuasive. It is difficult to believe that the Bangladeshi authorities, AL politicians, business rivals and/or others have targeted the applicant in the past, and yet he saw no apparent need for protection abroad.

   -   The Tribunal accepts that there were widespread political protests and violence at that time, but it finds unconvincing the applicant’s suggestion that these caused him to feel at less immediate risk of personal danger; or that they adequately explain his failure to leave Bangladesh earlier.

   -   The applicant’s return trip to [Country 1] [in] January 2014 – by air to [a city in Country 1] – with his wife and older [child], adds to the Tribunal’s doubts. The applicant wrote in response to the delegate’s concerns about his return: ‘[W]hen I returned from [Country 1], I faced huge harassment both mental and physical […]’. In the Tribunal’s view, this does not resolve the question of why – in light of his past experiences – he dared return to Bangladesh. The return trip to [Country 1] suggests, first that the applicant was not wanted by the Bangladeshi authorities (including for false criminal cases), and second, that he was already putting in place arrangements to ensure that all three applicants could obtain visas and enter Australia (as it would show recent visa-compliant travel).

   §  The applicant parents said that A2 and A3 lodged their applications for Australian [temporary] visas in February 2014, and obtained these [in] February 2014. As the Tribunal noted, almost another two months passed between the visa grant and their arrival in Australia. The applicant offered various explanations for this further delay.

   -   He stated that the family had to sell their home, and he had to negotiate with the bank about the financing for his [businesses].

   -   The second-named applicant added that they were very reluctant to leave Bangladesh (and by implication, were only doing so for their safety), and they were staying with other relatives (the applicants referred to trying to ‘relocate’ during this period). At one point in the hearing, the applicant said in passing that the family had another house in [(Dhaka)], suggesting that they were not living in their main family home (which was up for sale).

   -   The applicant said that, meanwhile, he had paid [Mr C] (a gang member acting on behalf of [AL] MP [Mr D]) extortion money of Tk [amount][4], and felt confident that would buy him some time without being at immediate risk. Also, the applicant added, while the family was preparing to leave Bangladesh together, there was no immediate pressure from the AL (and, in any event, they were minimising the risks by travelling around).

   -   The Tribunal finds these explanations unconvincing. Given the nature of the alleged incidents involving the applicant – most notably, the unexpected home raid [in] January 2014 – and his claimed profile locally, the Tribunal does not accept that the applicant genuinely believed that the risks to him personally were temporarily removed or reduced to a tolerable level, due to the current political mood in the country or his having paid extortion to a single gang member. It accepts that he (and the wife and [child]) visited relatives in Dhaka and Jessore, but it does not accept that they were in ‘hiding’. Rather, the Tribunal finds strong evidence to indicate that the applicant and his family were making family, property and financial arrangements to ‘migrate’ to Australia.

   [4] Approximately $A [amount] at current exchange rates.

6. Third, the applicants arrived in Australia [in] April 2014, but did not seek protection until [July] 2014. The delay in seeking protection, of almost three months, raises more questions about the applicants’ need for protection in Australia. The applicant told the Tribunal that he knew nothing about protection when he first came to Australia. He consulted a lawyer about seeking permanent residency, and first explored his options for obtaining skilled migration. However, he then ‘broke down’ and told the lawyer that he actually needed protection. The applicant said that, at that stage, he did not have the funds to hire the lawyer to help him with his application.

7. The Tribunal accepts, on the basis that it is plausible, that the applicant first explored options for permanent residency in Australia on the basis of skilled migration. The applicant is evidently well-travelled and a businessman, who undertook considerable preparation for his and his family’s move to Australia. The Tribunal does not accept that he was ‘unaware’ of protection; or that he did not have the means to find out; or that the issue arose only after he (spontaneously) broke down and told his lawyer about his real dilemma. Instead, the Tribunal finds very strong evidence – taking also into account the circumstances of the applicants’ departure from Bangladesh – that they lodged his application only as a means of securing permanent residency in Australia.

8. The applicants drew to the Tribunal’s attention various factors which, they said, indicated the genuineness of their claims and their need for protection (or, as the applicant wrote in the post-hearing submission, ‘logic to support [his] protection application claims’). First, the applicant has had many opportunities to stay abroad previously, having held a [Country 2] visa valid for the period August 2012 to February 2013; he has never overstayed a visa during his prior trips abroad; and he has various qualifications that could have allowed him to emigrate, had he been so minded. Second, the wife’s father died in December 2014, but she was unable to return to Bangladesh.

9. The Tribunal places very little weight on these factors in assessing the credibility of the applicant’s claims. It has minimal information about the applicant’s travel history, although he appears to have undertaken regional travel for business, to have visited Australia briefly in 2011, and to have obtained, but not used, a [Country 2] visa in mid-2012. These snippets of information do not necessarily show that the applicant had opportunities to live abroad in the past, but that he had no interest in doing so. Nor do they support the notion that his decision to seek permanent residency (protection visas) in Australia in 2014 must therefore be driven by necessity, and a fear of persecution or significant harm; rather than by a desire to migrate. Similarly, the Tribunal acknowledges that the applicant wife may regret not having attended her father’s funeral. It considers that there may have been many reasons for her failure to return (including family, financial and/or visa-related ones), but it places no weight on this as evidence that she or the applicant fear persecution or significant harm on their return to Bangladesh.

10. In his submission of 28 June 2017, the applicant addressed the Tribunal’s observation at hearing that the purported legal cases all seem to arise out of business relationships (rather than manifestly political disputes). The two purported court documents that he presented, as discussed at hearing, involved the alleged theft of his car by a business customer, and in another case, a person had accused him of presenting fraudulent cheques. These reveal no overt political link. In a similar vein, his purported letter to [a senior government official] on the day before his [departure] – and the later newspaper articles that appear based on that letter – merely refer to ‘terrorists’. The applicant commented that he did not leave Bangladesh for business reasons. Moreover, he was not able to identify political rivals in such a letter. The real purpose had been to ensure that the authorities secure the properties, so that the bank can use the [business] assets to discharge the mortgage loans. In further written comments, the applicant wrote that his parents are people of means and that, in any case, the Bangladesh Government provides financial support to [a certain] sector. In other words, there was no need for him to close his businesses for financial or similar reasons; he did so only to save his and his family’s lives.       

11. In sum, the Tribunal has very significant concerns about the credibility of the applicant’s protection claims, and his need for protection. It formed the impression overall that he and his family left Bangladesh as part of an orderly plan to emigrate and engage in business in [Australia]. It is concerned that he has exaggerated his political profile, and that his history of alleged conflict with AL-linked groups was contrived. These concerns cast strong doubt over the entirety of his protection claims. Nonetheless, given the Tribunal’s view that the applicant has at least some political affiliations and has drawn on his personal experiences to some degree, it consider it appropriate to assess his claims and evidence in detail below.

    Political interests and activities

12. The applicant claims to have first joined the BNP’s student wing, Jatiotabadi Chhatra Dal (JCD) while studying at the [college], hence sometime after [year]. He gave some information about the positions that he has held, the functions he fulfilled, and the local politicians with whom he has dealt. The Tribunal records these and the related activities, in summary form below.

    §  2002-2004: [A position] of the JCD branch at [college] (Dhaka).

    §  2003-2004: [A position] of the JCD’s [an organisation] at [college].

    -   The applicant helped arranged demonstrations, meetings and processions. [Mr B], who [held senior position] of the JCD ([Dhaka]) used to preside over these meetings.

    §  2005-2008: Member of [a professional organisation].

    -   2005-2006: The applicant claims that he and others participated in demonstrations, meetings and processions, in the lead-up to parliamentary elections.

    -   2007: After the Caretaker Government took power, and particularly after the arrest of BNP leader Begum Khaleda Zia, the applicant (and his colleagues) formed a human chain in public places [to] demand the release of Begum Khaleda Zia.

    -   In November/December 2008, the applicant returned home to Jessore just before the elections to campaign for the local BNP candidate.

    §  2009-2010: ‘[A position]’ of the [professional organisation].

    -   The applicant claimed that this work included [details deleted].

13. Most recently, the applicant claims that, from 2010 to 2014, he [held a role in], Bangladesh Jatiotabadi Jubodal (JBD, the BNP’s youth wing), in the Uttara Thana union. The applicant’s account of his activities (and by implication, his profile) is found in a lengthy statement that weaves in aspects of his business interests and incidents of past harm. The following summary is taken from his statements (it is not intended to be comprehensive).

    §  The applicant was appointed by his old political friend [Mr B], who [held a certain role] of the JBD ([Dhaka]) and [held another role] of the JBD’s Central Committee.

    §  From mid-2012, the ruling AL stepped up the torture of opposition activists and supporters. The applicant used to hide leader and activists from JCD and JBD, in his office in Uttara and his [business] in Ashulia. He also used to employ BNP ‘political personnel’ in his office (in other words, political mates).

    §  The applicant claims that [Mr B]’s office was close to his (the applicant’s) office in Uttara (Dhaka), and the applicant used to meet him in secret there. Around that time, [Mr B] was looking to nominated as the BNP candidate for [a] national [seat]. The applicant helped him with posters, banners and festoons, and financial support (implicitly from JBD coffers). [The applicant claimed that his work during this period attracted the adverse attention of AL politician [who] was acting MP [at] the time].

    §  During 2013, in the lead-up to the 2014 parliamentary elections, the applicant and others (‘we’) participated in protests and rallies calling for the conduct of elections under a neutral caretaker government.

    §  There were four city corporation elections in mid-2013, one held in [a certain city]. The applicant and others campaigned for the BNP [candidate], who won by a handsome margin.  The applicant then resumed his campaigning for [Mr B], together with his ‘political circle’ of friends. The applicant made a large donation to the campaign. There was tension within BNP ranks, as there was a rival to be the BNP candidate. It was clear from the applicant’s accounts that he had a good knowledge of local politics.

14. Country information indicates that the BNP is one of Bangladesh’s major parties. In July 2016, the Department of Foreign Affairs and Trade [5] wrote: ‘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: DFAT Country Information Report – Bangladesh, 5 July 2016

15. The applicant provided some documents to support his claimed association with the party. These include:

    a)    a photograph of a plaque from the student’s union showing that the applicant was the student union’s [a certain role] from 2003 to 2004;

    b)    a letter of support from [a senior position holder] of the [BJD], [Mr B], who states the applicant’s latest position in the BJD, and adds that the applicant has campaigned in his home district of Jessore in the past;

    c)    a letter of support from a BNP politician from Jessore (who also refers to the applicant’s work in Dhaka and Jessore); and

    d)    a receipt for the payment of Tk [amount][6] from the applicant [in] October 2015, as a contribution to a BNP youth wing meeting to be held [in] November 2013. 

    [6] [Amount deleted].

16. The applicant also provided copies of videos of BNP meetings. Asked at hearing for details, the applicant said that they took place after the elections (January 2014); he thought that one was in [a] Club, and the other in [another venue]. The applicant said that someone else made the video, and the applicant collected it. The Tribunal has examined the DVD containing the videos. It appears to relate to just one meeting. There is minimal information to give it context (such as the date or location of the event). The data file indicates that it was created [in] May 2014, hence after the applicant left Bangladesh. However, it is not possible to infer from this that the video was actually made on that date, as it could be the date on which the video material was transferred to the DVD from another source. In any event, it appears to relate to one meeting, where a large number of men are gathered in a hall with BNP signage behind the podium. It is not clear whether the applicant was present. The applicant provided several photographs that are said to be stills from this video and, it seems, a second event. They appear to who him at two meetings in different venues. In two of the photographs, he appears to be lining up to approach a podium.  

17. The Tribunal accepts that the applicant supports the BNP, given the party’s history and prominence in Bangladesh, and the strong roots in urban areas and among the business sector. The Tribunal considers that the applicant demonstrated an easy familiarity with the BNP and Bangladeshi politics, and had detailed knowledge about political developments and personalities, particularly in his local area of Dhaka. Moreover, the Tribunal considers it credible that the applicant was involved in the JCD while at [college], and that he has sustained his links with the party’s student wing. The Tribunal notes the overlap between the time when the applicant established his own [companies] (from late 2010), and his claimed work in the JBD (youth wing’s) Uttara (Dhaka) branch, as [a certain position holder]. The Tribunal accepts, on the basis that it is plausible, that the applicant has some connection with [Mr B], and through him with the JBD’s Uttara Branch (although it does not accept at face value that he held a key position). Country information indicates that the party’s youth wings have extensive influence and control, and play an active role in politics (including in political violence and corruption). It also highlights the extent to which party affiliations take place through personal and business contacts.

1. In the Tribunal’s view, however, this material is inconclusive, and does not give much insight into the applicant’s profile or influence in the BNP, even at a local level. The BNP and its associated groups attract wide support. It is not unusual for students, businesspeople and others to affiliate themselves with one or other party, in the long-term. The motivations may be based on traditional family leanings; political/ideological preferences; or, often, to support one’s employment, business or social prospects.

2. The Tribunal notes that the applicant claims to have held various [positions]. The Department of Immigration and Border Protection provided some background information on the JBD in an issues paper[7], in January 2017:

   The Bangladesh Jatiyatabadi Jubo Dal, or Jubo Dal for short, is the youth wing of the BNP. According to Dhaka-based newspaper The Daily Star, ‘the Jubo Dal leads an alliance of opposition party youth wings similarly to how the BNP has a leading role among opposition parties’. The BNP constitution describes the [JBD] as a BNP ‘front organisation’ which has received approval from the BNP. The constitution notes that each front organisation ‘will have its own proclamation, constitution, flag and office and this front organization will fall under the discipline of the main organization.’ In a 2014 research response the IRB quotes a Professor who states that the BNP and [JBD] have completely separate executive committees and ‘there is no overlap between the two organizations, as there is a practice of "graduation" of activists from the [Jatiyatabadi Juba Dal] who then move into the BNP.’

   While the JJD is a ‘youth’ party, there is no upper age limit for membership of the party.[8]

   [7] Department of Immigration and Border Protection: Issues Paper: Bangladesh – Political violence involving Awami League and Bangladeshi Nationalist Party supporters, 2014-2016, 4 January 2017

   [8] The DIPB Issues Paper cites the following sources for this information: Suykens, B. and Islam, A 2015, The Distribution of Political Violence in Bangladesh, Conflict Research Group, p.18, <CISEC96CF1859> ; The Daily Star, cited in Immigration and Refugee Board of Canada 2012, Bangladesh: Bangladesh Nationalist Party (BNP), including its

3. In the Tribunal’s view, the applicant’s claims to have held positions in various JCD and JBD offices, and his broad description of his activities, again give little sense of his actual responsibilities and profile. Despite the official titles, the applicant’s account of meeting with [Mr B] secretly and in private, and his claimed role (for instance, in providing hiding places for JCD and JBD leaders who were in hiding), there is minimal independent evidence to show what exactly these roles entailed, and what if any profile the applicant acquired –including locally, or with the ruling AL. Similarly, the applicant’s descriptions of ‘our’ activities provides little context for his role and profile were.

4. In sum, the Tribunal accepts that the applicant supports the BNP; that he has had some involvement with its student and youth wings; and that he has attended some public meetings. Country information indicates that social networks and patronage are important in Bangladesh; this supports the applicant’s claim that he mixed his business, political and social interests, for instance, by hiring people who also favoured the BNP. However, the Tribunal is not satisfied that the applicant’s level of activity, or the official titles that he claims to have held – including, from 2010 until his departure from Bangladesh, [a certain role] of the BJP in Uttara Thana, Dhaka – were sufficient to establish him as a mid-level leader, or a person of adverse interest to the AL.

   Triggers for the AL’s adverse interest in the applicant

5. The Tribunal considers that the applicant’s account of the particular activities, incidents and circumstances that antagonised his opponents are potentially more relevant to its assessment. These may offer some insight as precisely what triggered the alleged conflict. The applicant claimed in general terms that the AL was intent on demolishing the political opposition, but also identified some specific factors.

   §  He told the Tribunal that, as JBD [official title] from 2010, he used to collect information about the AL’s corrupt activities and torture of people, and hand it to journalists. He said that he did not have any examples of such materials, as it would not have been safe to carry such material out of the country. As for other details, he said that in his local area of Uttara, the AL used to arrange for the extortion of local market stallholders. The applicant and his colleagues used to also get information from the families of people who had gone missing. The Tribunal gained no insight or further details as to what information the applicant gathered, or why this was not more general knowledge.

   §  The applicant said that his local AL member of parliament [had] identified him as a BNP mid-level leader who undermined her electoral profile, through his [work]. She had instructed [Mr D], the AL member of [parliament], to target the applicant. The constituency [details deleted]. [Mr D] was corrupt, and had gang members operating on his behalf (the applicant provided the names of key gang members, including [Mr C]).

   §  The applicant gave as another example of conflict that he and his party friends contributed to the successful campaign of the BNP candidate for [a certain area], [who] won the seat [in] July 2013.

   §  The applicant also mentioned that there had been tensions within the BNP, too. In the second half of 2013, his friend [Mr B] had to fend off a rival BNP [candidate]. He appeared to give this example as a further demonstration of his political role. He did not suggest that any such internal matter was relevant to the AL’s adverse interest in him.   

6. At hearing, and in his post-hearing submission, the applicant gave further examples of his political work and adverse profile. He claimed that, as [a position holder] for the local JBD, he undertook investigations into AL operations, to get information that would damage them. The AL came to suspect that he was gathering adverse information; as a consequence, they kept him under surveillance.

   §  For instance, he said that there was a road accident in Uttara in the evening of [date] May 2012, in which a pedestrian was killed by a bus. Local AL people alleged that the BNP had orchestrated a hit-and-run accident, by arranging a bus driver, who was a BNP leader, to run over the victim, who was an AL activist. The applicant said this was completely false, but it gave a pretext for the AL to file criminal charges against 150 BNP leaders and activists. The applicant said that, acting on instructions from the BNP leadership, he and some colleagues undertook an investigation into the accident. In response to the Tribunal’s questions, he said that he did so by finding regular passengers on the night bus, who had been eyewitnesses to the accident. They provided statements that disproved the alleged political motivation to the road accident. He said some of this material was published, but did not have any examples to present.

   §  The applicant gave another example of his work against the AL. Around mid-2012, he uncovered the extent of [drug][9] use among the sons of local AL leaders. He said that had received a tip-off that some AL family members were dealing drugs in Tongi, north of Dhaka. He went there, and managed to take a video of the actual dealing, from a nearby house. Another colleague took footage as well. The applicant said that he had handed a copy of this to the BNP, but the police seized his copy during the (alleged) home invasion in early 2014. Again, he had no supporting evidence for this claim.

   [9] [Details deleted].

7. The Tribunal has a number of concerns about the applicant’s general description of his role and profile as the JBD [position holder], and the specific examples he provided of his conflict. It acknowledges that he spoke in some detail, albeit unfocused, manner about local conditions. This could reflect his firsthand knowledge of these matters, but in the Tribunal’s view, it could also be the kind of anecdotal evidence that a local business person linked with the BNP would have to hand. The Tribunal has some doubts as to how the applicant could undertake these kind of activities as the owner/operator of two relatively new businesses in different parts of Dhaka. Second, it finds his recent accounts of having uncovered corrupt AL practices, and having gathered hard evidence of this (eyewitness accounts of the accident, and video footage of drug dealing) problematic. It does not accept that he played a pivotal role in any such investigations; or that he obtained material that would be highly damaging to the AL; or that the AL or others perceive him to be a danger to them for related reasons.

8. In sum, the Tribunal accepts that the applicant supports the AL, but finds that his account of the additional factors – his responsibilities in various positions [and] the triggers for conflict with AL rivals – to be problematic. It is concerned that he has exaggerated his role and profile in the BNP, and given unsubstantiated, unreliable accounts of the work he undertook, especially in his latest role for the JBD. The Tribunal considers these claims in further detail below, in assessing his claims of past harm.

   Experiences of harm in Bangladesh

   Early incidents

9. The applicant claims that while he was involved in the JCD at college, and in the following years, he had ‘long experiences of massive harm’. He claimed that, in one incident in 2003, some friends saved him from an attack by rival members of the AL’s student wing. The Tribunal notes general country information that the parties’ student wings engage in a range of political and criminal violence. For instance,  

   Party-linked student and youth groups that played a key role in opposing authoritarianism before Bangladesh’s birth and during military rule have mostly served as coercive wings for their parties since the 1990s. They are used to expand influence and entrench control, often by force, over resources and turf, including on college campuses. They are also used to enforce hartals and other forms of street agitation. With student politics “becoming synonymous with thuggery in the last twenty years”, the BNP’s student wing, Jatiyatabadi Chhatra Dal, and youth wing, Juba Dal, and the AL’s student wing, the Bangladesh Awami Chhatra League, and youth wing, Juba League are also increasingly involved in violent criminal activities.[10]

   [10] Political Conflict, Extremism and Criminal Justice in Bangladesh Asia Report N°277, 11 April 2016

10. The Tribunal accepts that the applicant, as a BNP supporter and who has been involved in its student wing and youth wing in at least some capacity, may have witnessed or been involved in some violence. Although the applicant has variously referred to these as ‘massive harm’ and ‘minor incidents’, the Tribunal finds that his exposure to political conflict while at college did not amount, individually or cumulatively, to serious harm or significant harm..

    Incidents prior to January 2014

11. The applicant has claimed that he was subject to a number of incidents, of varying seriousness, in the period up to early 2014. The Tribunal’s attempted chronological summary of these, based on the applicant’s successive written statements and his oral evidence at hearing, follows below:

    §  Sometime in the second half of 2012, AL leaders started to suspect the applicant of gathering incriminating evidence against them (for instance, about their children’s use of hard drugs). The AL leader in his local [constituency] asked her [counterpart], [Mr D], to ‘deactivate [the applicant] through physical, mental harassment and destroying [his] business’. In his other evidence, the applicant indicated that his [business] in [details deleted]. He also claimed that [Mr D] was corrupt, and involved in various [rackets].

    §  In September 2012, the applicant lent his car to a customer named [Mr C] who, unbeknownst to him at the time, was a member of [Mr D]’s gang. He refused to return the car. When the applicant demanded that [Mr C] return the car, [Mr C] forced him to sign some blank, backdated cheques.

    §  In November 2012, gang members attacked the [business]. The applicant was assaulted and injured, and once again forced to sign blank cheques, this time at gunpoint. There was extensive property damage. The applicant reported this to the police, but they refused to accept the complaint, for political reasons. 

    §  During 2013, there were a ‘few false cases’ filed against the applicant, mainly in connection with dishonoured cheques

    §  On 3 October 2013, the police arrested him at the front door of his home. They tortured him at the police station, to extract information about [Mr B]. He eventually succumbed, and gave them information and documents. After this, they continued to follow him.  

12. The most significant of these incidents – the September 2012 conflict, the November 2012 [business] raid, the false cases, and the October 2013 arrest/torture – were subject to detailed discussion at the hearing, and are addressed to some extent in the court documents and press reports that the applicant submitted.

13. September 2012 car theft: The applicant referred the Tribunal to the purported court [document], and spoke in detail about this alleged incident. He said that [Mr C] was a customer who used to purchase [goods] (a [business] that the applicant later linked with the local AL MP, [Mr D]). The applicant once lent [Mr C] his car for a trip to visit [family], but [Mr C] failed to return it. The applicant confronted him, but instead was forced to sign a bill of sale. Later, the applicant learned that [Mr C] was in the AL, and intent on harming the applicant. The applicant said that the matter is pending before the courts. In response to the Tribunal’s questions, the applicant said that there is no mention of politics in his case against [Mr C]; it would be impossible to declare the real cause of their conflict. The applicant relied in part on the (purported) letter to [a senior government official] in April 2014, and the two press articles that were apparently based on this letter. These documents refer to ‘terrorists’ having forced him to sign the [car] over; which was subject to an ongoing bank loan.

14. The applicant told the Tribunal that he went to the police and tried to lodge a case against [Mr C], but they refused to make a General Diary complaint. Nonetheless, the applicant pressed charges, and gave evidence in a court appearance in about late 2013. The case is ongoing. At hearing, the applicant spoke to the untranslated court document, case [No.], which relates to this court action. He said that the document identifies [Mr C] [as] a customer who used to buy [goods], and sets out the circumstances as described above – except with no mention of [Mr C]’s political links.

15. November 2012 [business] raid: The applicant claims that terrorists raided the Ashulia [business] in November 2012. At hearing, he said that there had been unrest at the [business], and [Mr D]’s supporters attacked him. They put a gun to his head, and forced him to sign blank cheques, about ten in total. These were backdated. They presented one cheque for Tk [amount]. The applicant later closed the account, and the subsequent cheques were dishonoured.

    §  The documents that the applicant provided (the letter to [a senior government official], in April 2014, and the two press articles based on that text) appear to refer to business rivalries as the cause, and state that both factories were subject to raids and theft. His assailants then demanded extortion money. They closed the factories, and attacked him, stabbing him.

    §  The applicant provided two blurry photographs, undated, that appear to show his image with a bandage on the right side of his head (but no other obvious facial injuries). There are also several photographs that appear to have been taken in a [business], showing some [equipment], one table that appears to be in disarray (possibly showing equipment or computer cables), and two showing a cheque book and other paperwork next to [equipment]. The photographs are undated, and give little insight as to the extent of any disruption or the circumstances.

16. The false cases: The applicant said that he is subject to several false cases. He does not have details, and has not retained a lawyer to act on his behalf. The applicant presented four documents in Bengali, which appear to be originals, with translations. These are ‘return of warrant’, in relation to cases in courts in Dhaka [and] one in [Gazipur]. In each instance, the documents record that the applicant has been granted bail in the matter, for matters set for hearing in February and March 2014, and in the case of [No.], for [dated] May 2013. The applicant presented documents relating to case [No.], but was not sure how many other cases there were, or their contents.   

17. In relation to case [No.], the applicant spoke in detail to the untranslated court document that he presented. He said that [Mr A] was one of the people who raided the [business] in November 2012, and forced him to sign and backdate cheques. [Mr A] brought charges of fraud against the applicant, alleging that the two had been business partners; that the applicant had borrowed money from him; and that the applicant had repaid it with cheques that bounced. In response to the Tribunal’s questions, the applicant said that his attackers managed to cash one cheque for Tk [amount]. The applicant said that he went to his lawyer the day after the attack and theft of the bank cheques. He closed one bank account three or four days later, and cancelled the cheques belonging to the other account.

18. The applicant again confirmed that the documents gave no clue as to the alleged political background to these incidents, or related charges. He presented to the Tribunal a purported ‘return of warrant’ in relation to this case, issued [in] Dhaka [in] May 2013, stating that the applicant had ‘surrendered’ (appeared in court), and the ‘warrant is […] returned […] without implementation for the charge on person’. The Tribunal understands this to mean that the applicant appeared in court, and was released on bail without further action at this stage. The case is therefore pending. At hearing, the applicant said that, having cancelled most of the cheques, he has heard no more news about this case, and it is not a major concern to him. (He added, somewhat confusingly, that he paid [Mr A] Tk [amount] as a down payment for his and his family’s security. He appears to have confused or conflated this with his claim that, after the January 2014 raid, he paid [Mr C] Tk [amount] to ensure that he and his family were safe, at least until they left the country in April 2014.)

19. [October] 2013 arrest/torture: The applicant claimed that he returned home late on [date] October 2013, and the police were waiting for him at the front of his home. The applicant told the Tribunal that he believes they (that is, his political opponents, and the police acting on their behalf) had discovered the investigations he had been making, and wanted the incriminating reports and other documents. They took him to the police station and tortured him, to secure information about [Mr B] and other BNP figures. The police released the applicant the next day with a ‘huge physical injury’. He went with his family to Jessore for treatment. At the hearing, the applicant said that suffered [an] injury, with bleeding.

20. The applicant provided a medical certificate dated [October] 2013, issued by [a clinic] in Jessore, stating that he had presented with ‘physical problems’, suffering from ‘multiple physical injury’. The applicant was treated from [date] October 2013 to [date] October 2013, and presented a copy of a prescription for eight medications, in English. In response to the Tribunal’s surprise that he travelled six or seven hours to Jessore, if as claimed he had a head injury and bleeding, the applicant replied that he first sought emergency treatment in Dhaka (after initially telling the Tribunal that he was unable to go to any clinics there, as they were not ‘secure’). The Tribunal considers it curious that the applicant was allegedly detained on [date] October 2013 and released the following day, but did not present at the clinic in Jessore until [date] October 2013. It also finds odd that the medical clinic recorded him as having ‘multiple physical injury’, without any details or medical terms. The applicant also provided a list of the medicines that were prescribed for him, on the day of discharge. They include various medications for infection, pain relief, nerve damage and anxiety. The Tribunal has concerns about the vague content, timing and purpose of these medical documents, and place little weight on them as evidence that the applicant was subject to a severe beating late on [date] October 2013.

Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

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 a protection 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 the applicant 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’).

‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take 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 any country information assessment 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.

Member of the same family unit

Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include wife and children.

leaders, factions, associate organizations and activities; treatment of members and supporters by authorities (2007-September 2012), BGD104178.E, 21 November 2012: <CIS29952> ;  Bangladesh Nationalist Party 2009, Bangladesh Nationalist Party-BNP: Constitution, 8 December 2009, p.9: <CISE1310071575;  Immigration and Refugee Board of Canada 2014, BGD104933.E Bangladesh: Roles and responsibilities of the executive members of the local
branches of the Bangladesh Nationalist Party (BNP) and the Jatiyatabadi Juba Dal (Bangladesh Nationalist Youth Party) (2010-August 2014), 15 August, pp.2-3: <OG61C530220> ; ‘No age bar for youth organisation leaders’ 2015, The Report24.com, 29 October: <CXBD6A0DE17015> 62 ‘Arrest warrant against Jubo Dal president Alal’ 2015,

International Crisis Group