1609174 (Refugee)

1609174 (Refugee) [2019] AATA 5415 (18 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609174
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:James Silva
DATE:18 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 18 April 2019 at 6:10pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion, membership and activity – attacks and threats by supporters of other political party – politically-motivated criminal charges – business partnership with supporter of other political party – random criminal incidents – long residence in and frequent travel to multiple other countries – political/social group membership and activity in Australia – credibility – inconsistent evidence – delayed departure after obtaining visas – authenticity of documents – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J(1), 36(2), 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicants are a married man in his mid-[decade], his wife in her mid-[decade], and their [age] year old son, all from Bangladesh.
The applicants arrived in Australia [in] December 2015, as the holders of Visitor visas. They applied for Protection (Class XA) visas on 22 January 2016. On 20 June 2016, the delegate of the Minister for Immigration and Border Protection (the delegate) refused the application pursuant to s.65 of the Migration Act 1958 (the Act).
This is an application for review of that decision.
The applicants attended a Tribunal hearing held on 4 September 2018 and 11 September 2018.
For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed. In brief, it accepts that the applicant husband favours the BNP, the main opposition party in Bangladesh, but it does not accept that he was politically active or held a leadership position. It does not accept that the government authorities, his business partner or thugs associated with the ruling party targeted the applicant husband in Bangladesh, for instance by laying false criminal charges, assaulting him or seizing his business; or that they threatened the other family members. It finds that the applicants left Bangladesh for reasons unrelated to their protection claims, and that no one has come looking for them in recent times, or harassed his relatives or employees. The Tribunal accepts that the applicant has participated in a Bangladeshi political/social group in Australia, but does not accept that this makes him a person of adverse interest to the Bangladesh authorities. The Tribunal finds that none of the applicants has a well-founded fear of persecution for a s.5J(1) reason; and none of them faces a real risk that they will be subject to significant harm, if they return to Bangladesh. Australia therefore does not have protection obligations in respect of any of the applicants.
CRITERIA FOR A PROTECTION VISA
The issue in this case is whether one or more of the applicants meets the refugee criterion, and if not, whether any of them is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.
CLAIMS AND EVIDENCE
Protection claims
The first-named applicant (‘the applicant’ or ‘the applicant husband’) claims to fear harm arising from his support for the opposition Bangladesh Nationalist Party (BNP), and his active membership. He claims that his business partner is a supporter of the ruling Awami League (AL) who illegally seized his share of a business; and AL cadres have threatened him and his family. He also claims that the police arrested, detained and injured him during various protests, and they have now brought politically motivated criminal charges against him. He fears that the Bangladesh authorities, acting on behalf of the AL, will arrest, imprison, mistreat and perhaps kill him on his return to Bangladesh. He also fears that AL cadres will abduct, mistreat and possibly kill him, with impunity. They will do so because of his past profile and his ongoing political activities, including with a BNP group in Australia.
The second- and third-named applicants, the applicant’s wife and young son, claim to have faced threats and harassment because of their association with the applicant. They claim to fear persecution on the basis of an imputed political opinion; and/or to be at risk of significant harm.
Background
The first-named applicant is a [age] year old man from Tangail, a city in Dhaka Division, to the north of Dhaka City. He is a Sunni Muslim and speaks Bengali (Bangla), English and Hindi.
According to his protection visa application, the applicant lived in North Shahjahanpur, Dhaka (also referred to as Shantipur) from 2004 to 2011; and in the well-to-do neighbourhood of Gulshan (Shajadpur) in the northern part of the Dhaka, from 2011 to December 2015. At hearing, he said that he moved between the two properties. One is a [number]-storey residential block in Shahjahanpur; the family lived in one of the apartments. The other is an apartment in Gulshan, which was more convenient to the applicant son’s school. Both properties are currently rented out, and the applicants derive income from them. The apartment in Shahjahanpur is mostly empty, but his daughter stays there from time to time.
The applicant attended school in Tangail, up to [year]. He went on to complete a course in [Subject 1], and later a Bachelor of [Subject 2 in Specialisation] in Khulna, in [year]. In the late 90s, he undertook diploma and certificate courses in this field in [Country 1]. From 1984 to 2004, he mostly worked abroad, in [Region 1] and [Region 2] - as [an Occupation] responsible for [specified] systems in [workplaces], and [in locations]. On his return to Bangladesh in 2004, he worked as a [business] manager, and in 2006, became the owner/chairman of a [second] business, [Company name][1]. This included a [factory] in Gazipur, to the north of Dhaka. At hearing, he indicated that he also operated a [another] business for some time after 2004; and that in 2015 he visited [Country 2] with a view to importing [products].
[1] Also spelt [Alternative spelling], and with variations on that spelling.
The applicant claimed that, in addition to the two residential properties in Dhaka, he also has land in the suburb of [deleted], which he plans to build on in the future. He said that he has a ‘country house’ in Tangail. Although he referred to this as his ‘secret’ home, it appears to be the family home where his mother still lives (‘ancestral home’).
The applicant parents married in Dhaka in July 1989. They have three children, a [age] year old daughter living in Dhaka; a [age] year old son studying in [Country 1]; and the third-named applicant, who was born in late [year]. The applicant’s widowed mother and [siblings] live in Tangail.
The applicant holds a Bangladesh passport issued in [2014]. He provided full copies of this passport and a previous one issued in 2009. As noted above, and set out in his submissions, he has travelled and lived abroad extensively.
§ From 1984 to 1991, he lived and worked in [Country 3], as [an Occupation] for an [employer]. He then lived in [Country 4] (1992-1997), where he worked in the same field; and later in [Country 1] (1997-2004).
§ He returned to Bangladesh in 2004, after failing to secure sponsorship to remain in [Country 1], and being refused entry into that country.
§ According to the applicant’s written statements and his representative’s submissions, he unsuccessfully tried to migrate to [Country 5] in 1998, and (as noted above), an application to remain in [Country 1] in 2004 also failed. The applicant parents were refused visitor visas to visit Australia in August 2014, and [Country 1] in early 2015 (to visit their son).
The second-named applicant is a [age] year old woman from Dhaka, who gives her occupation as domestic duties. Her widowed mother and [siblings] live in Dhaka. She holds a Bangladesh passport issued in [2014]. The applicants, travelling together, made several trips to [Region 3] for tourism, namely [Country 6] and [Country 7] in June 2014; and [Country 8] in December 2014.
Evidence
The Tribunal has before it a large amount of material, from both the primary application and voluminous submissions. For ease of reference, the list below consolidates relevant materials provided to the Department and the Tribunal; it not exhaustive.
§ The applicants’ protection visa application forms, lodged on 22 January 2016. There are several statements and submissions;
-   The applicant’s statement of claims dated 21 January 2016; a supplementary statement (following the Department interview) dated 14 June 2016; and the applicant wife’s statement of 17 June 2016.
-   The applicant’s submission covering the application.
§ Identity and background documents:
-   Copies of applicant’s birth certificates, all issued [in] January 2009; the applicant parents’ national ID cards, and their marriage certificate.
-   Copies of the applicants’ Bangladesh passports – the applicant husband’s and applicant child’s were issued in Dhaka [in] 2014, and the applicant wife’s the following day.
-   Brief resume, and documents associated with the applicant’s education and professional qualifications, work history (in Bangladesh, [Country 3], [Country 4] and [Country 1]) and business interests.
-   Statement of 21 December 2015 listing the applicant’s personal assets, which include [an] apartment block, an apartment, a 50 percent share in a [factory] and land in Dhaka, to the estimated value of [amount].
-   A copy of [Company name]’s certificate of incorporation, dated [December] 2006, and memorandum of association. Successive documents show the applicant’s progressive acquisition of a majority of the shares.
-   Details of the applicant’s employment and international travel.
§ The applicant’s protection claims are set out in brief entries on Form 866C, and a more detailed statement dated 21 January 2016. His agent’s submission accompanying the form addresses some aspects of his claims and his migration history (including past visa refusals).
-   The applicant provided a statement on 14 June 2016, following the protection visa interview (‘Department interview’); and another detailed statement to the Tribunal dated 27 August 2018.
-   The applicant wife provided a statement on 17 June 2016, in which she confirms aspects of the applicant’s claims and states that she also fears harm from AL cadres. She provided a further statement dated 8 August 2018.
§ Supporting documents relating to Bangladesh (to the Department and the Tribunal) include the following:
-   Statement from Mr [A], [Office bearer], BNP Dhaka, dated [December] 2015, stating that the applicant is a ‘political worker of [Suburb 1] Thana BNP’.
-   Letter from Mr [B], [Office bearer] of the [Suburb 1] Thana and [Office bearer] of Dhaka City South BNP, dated [July] 2017.
-   Report from [Hospital 1], Dhaka, dated [August] 2015, advising that the applicant was admitted to hospital from [date] to [date] August 2015 ‘for political injury’.
-   A ‘clarifying medical report’ from [a doctor], undated, stating that the applicant was admitted to the hospital for treatment of a right knee fracture, [in] August 2015, and discharged four days later.
-   A statement from [a second doctor], dated [March] 2018, which states that the applicant received primary treatment [in] August 2015 for a knee injury, and was referred to [Hospital 1] for further treatment.
-   Statement from a security guard, [Mr E] (translated text), dated [May] 2016, who confirms the applicant’s political allegiance and describes incidents from 2013 to 2015; he provided an updated witness statement.
-   Statement from Mr [E], undated, recorded on affidavit paper (Bengali, with English translation).
-   Two A4-sized ‘posters’ which include images of (among other) the BNP leader Begum Khaleda Zia and the applicant: (a) one purportedly a message dated [August] 2013 from the applicant wishing the leader a happy birthday; and (b) a call from the applicant and [an office bearer] of the [Suburb 1] Thana Ward No. 34 BNP office, calling for a three-day strike in November 2013. A brief covering email from a person named [Mr F] advises the applicant that he found the two poster ‘from my archive’.
-   Statement from the applicant’s daughter, Ms [G], regarding an alleged incident [in] March 2017.
-   Statement from the applicant’s nephew, Mr [H] (in Bengali, on affidavit paper, with English translation), concerning alleged attacks [in] February 2017 and [July] 2018, the latter resulting in serious injuries.
§ A copy of Mr [H]’s national ID card.
§ Graphic photographs showing a person with Mr [H]’s likeness with deep wounds to his upper body (this appears to relate to the incident [in] July 2017) and with stitches on his abdomen (it is not clear whether this is a wound following the July 2017, or a follow-up ileostomy[2] conducted in December 2017).
[2] This is an operation to connect the last part of the small intestine to the abdominal wall, in response to bowel disease or a serious injury to the bowel.
§ Numerous medical documents, including: a [Hospital 2] note in Bengali (with translation) indicating that Mr [H] was received blood transfusions on [date 1] August 2017, and was admitted to hospital on [date 2] August 2017 with multiple stab wounds to his chest and abdomen; a discharge certificate (also in Bengali, translated) states that he was released on [date 3] August 2017; and a [Hospital 2] note, dated [September] 2014, reports the incident to the [police].
§ A [Hospital 2] discharge (‘clearance’) certificate states that Mr [H] received treatment from [November] 2017 to [December] 2017, for post-ileostomy.
-   (Purported) First Information Report, dated [November] 2013, handwritten in Bengali on a pro forma, with English translation, concerning the applicant and 71 other men accused of rioting.
§ Accompanying this, a complaint by a police officer stating that the accused participated in an unlawful assembly, attacked the police and threw bombs, bricks and sticks.
-   The applicant provided excerpts from his personal and a business bank account, and a letter from the bank, essentially to confirm that he was not involved in the business account from June 2014.
§ Supporting documents relating to Australia:
-   Money transfers from an address in [Dhaka] to the applicant, of large sums, during 2016 and 2017 (not further explained).
-   Statement dated [April] 2016, from [Mr I], [Office bearer] BNP Australia, stating that the applicant is an ‘active member of BNP, Australia[3] Committee’; and a receipt from the BNP for $100, being membership fee for the period January to March 2016.
[3] The letterhead gives the title of the organization as Bangladesh Jatiotabadi Dal Australia.
-   Statement from Mr [J], ‘[Office bearer] of the BNP Australia’, dated [July] 2018; copy of the biodata page of Mr [J]’s Australian passport; photograph of Mr [J]; and a post-hearing submission addressing aspects of his oral evidence.
-   A simple organigram for BNP Australia, showing four key positions, and annotated to indicated that the applicant is [Office bearer]).
-   Copy of correspondence from former [Australian minister] to Mr [J], dated [March] 2015.
-   A screenshot from the applicant’s [Social media] account showing the image of BNP leader Begum Khaleda Zia; it appears that the applicant shared the photograph on-line in September 2018.
-   A USB stick which included, among other things, footage of large protests in Sydney during the visit of PM Sheikh Hasina which the applicant claims to have attended (he does not appear visible in the crowd); and reports of political oppression and violence in Bangladesh.
-   Articles from the Bengali language press in Australia and an on-line newspaper Dainik (Daily) Naya Diganta, reporting on BNP Australia activities, in which the applicant’s name appears.
-   Photographs of the applicant at various BNP-related events in Sydney (indoor meetings and outdoor protests).
§ Medical reports from Australia:
-   Dr [K], dated [October] 2016.
-   Dr [K], dated [August] 2018; this is a letter addressed to the applicant’s representative.
-   Copy of [Medical Centre] GP Mental Health Treatment Plan for the applicant, recording that he has a diagnosis of depression, and associated poor memory and insomnia.
§ The Department file includes copies of medical examination and radiological reports relating to the applicant’ medical clearances for Australia, and the applicants submitted various reference letters, and evidence of employment and studies.
§ Country information (before the Department and the Tribunal):
- The Tribunal drew on the Department of Foreign Affairs and Trade’s most recent country information report on Bangladesh,[4] and a range of general country information. The applicant provided a copy of this report, and a copy of the US State Department’s 2015 human rights report for Bangladesh[5]
-   The applicant provided various newspaper clippings relating to political unrest in Bangladesh, as general background information. They do not appear to be directly related to his personal claims. He also submitted to the Tribunal articles regarding the boycott of the January 2014 general elections, including a copy of the relevant Wikipedia article; a Canadian report on document fraud in Bangladesh.[6]
-   A full copy of Justice Concern’s[7] report ‘Human rights violation [sic] in Bangladesh (2008-2013)’; a publication from ‘Appeal for Bangladesh’ addressing human rights concerns; and a report by the human rights group Odhikar.
-   Comments from [a website] concerning visitors’ experiences with poor security and corruption at Dhaka Airport.
§ The applicant attended a protection visa interview (‘Department interview’) on 7 June 2016, a recording of which is on the Department file.
§ The delegate’s protection visa assessment record (‘delegate’s decision record’) of 20 June 2016.
§ Review application form, attached to which are a copy of the delegate’s decision record and the applicant parents’ statements from June 2016.
§ The representative’s submission of 27 August 2018, which sets out new information and provides a comprehensive critique of the delegate’s decision. It also includes the applicant’s declaration of the same date. (The submission had more than 70 attachments. For ease of reference, the Tribunal has consolidated these into the document list above.)
[4] DFAT, Country Information Report – Bangladesh, 2 February 2018
[5] US State Department, Bureau of Democracy, Human Rights and Labor; Bangladesh, Country Report on Human Rights Practices for 2015: Immigration and Refugee Board of Canada, Bangladesh: Reports of fraudulent documents (2011-2015), 20 August 2015:
[7] The Tribunal has been unable to locate the associated website or verify the status of this organization.
The applicants appeared before the Tribunal on 4 and 11 September 2018, to give evidence and present arguments. The hearing was conducted with the assistance of accredited interpreters in the Bengali (Bangla) and English languages. The applicants are represented in this matter by Ms [L] of [Lawyers].
The Tribunal took oral evidence from the two parent applicants. The applicant husband gave his evidence in both Bengali and English, which he speaks well. The applicants advised that the applicant wife was not familiar with the details of the applicant’s political claims and experiences, but she spoke about some alleged incidents involving the family as a whole.

The applicants nominated as a witness Mr [J], [Office bearer] of BNP Australia, who attended the hearing in person.
They also nominated witnesses in Bangladesh: (a) The applicant’s nephew Mr [H]; (b) the applicant parents’ daughter Mrs [G]; and (c) Mr [A], [Office bearer], BNP. In an exchange on whether the Tribunal should proceed to take oral evidence from witnesses in Bangladesh, the representative advised that they were available to confirm the contents of their statements and provide the Tribunal with further details, if wished. In written comments (reflected also at hearing), the representative wrote: ‘The applicant instructs that contacting the witnesses would place both the witnesses at risk. It would also place the applicants at risk in the event that they returned to Bangladesh’. She flagged the option of taking oral evidence via an encrypted telephone link, but noted that even such links are ‘unreliable in Bangladesh’. The Tribunal signalled that it did not propose to contact overseas witnesses who the applicants claimed were at risk of harm from a call (although the Tribunal did not necessarily accept the underlying premise that these persons, or the applicants, were in harm’s way). This applied in particular to Mr [A], a BNP figure with some public profile (again, assuming that there were no identity issues about the person about to give oral evidence). The Tribunal did not foresee such problems with the applicant’s nephew or daughter, and tried to contact them. It took evidence by telephone from Mr [H]. It tried to contact Ms [G] by telephone, unsuccessfully. The Tribunal signalled that it would note and give appropriate weight to the willingness of both Mr [A] and Ms [G] to give oral evidence.
The Tribunal also received the Department files associated with the applicants’ visitor visa applications, namely (a) the visitor visa applications lodged on 20 August 2014 and refused on 31 August 2014; and (b) the visitor visa applications lodged on 2 September 2015, which led to the grant of visitor visas the following day.
On 11 September 2018, the Tribunal wrote to the applicants pursuant to s.424A of the Act, inviting their comments/response in writing to adverse information which had been discussed at hearing. This information was drawn from their visitor visa applications, the applicant husband’s [Social media] account, material on the internet concerning key BNP figures, the applicant husband’s medical examination in January 2016, and the oral evidence of Mr [J] at the hearing. The Tribunal invited the applicant husband to comment on or respond to the material, as it related to his protection claims. It also invited the other applicants to comment/respond, insofar as it was relevant to their protection claims.
The Tribunal received a submission on 17 October 2018, providing the applicants’ comments/responses to the letter.
The Tribunals learned in December 2018 that Ms [L]’s registration as a migration agent lapsed [in] October 2018. It wrote to the applicants and Ms [L] on 13 December 2018, advising that it would still direct correspondence to Ms [L] as the applicants’ authorised recipient, and seeking advice on any changes to the applicants’ representation. There was no further advice on this. The Tribunal sent subsequent correspondence to both Ms [L] and the applicants.
Receiving country
The applicants claim that they are nationals of Bangladesh, and have provided their passports from that country. They speak the national language, Bengali (Bangla), and are familiar with that country. The Tribunal is satisfied that the applicants are Bangladesh nationals. Bangladesh is therefore the receiving country for the purpose of assessing their protection claims.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Credibility of the applicant’s claims and evidence
The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.
The Tribunal has comprehensive concerns about the applicants’ credibility, and their need for protection. The claims and evidence were voluminous. The supporting documents to the Tribunal were indexed and referenced. However, the oral and written statements, and submissions were often disordered, vague, changeable, and accompanied by broad assertions. They sometimes mixed personal claims with general country information. The Tribunal formed the view that the applicants also exaggerated and misconstrued some true events, for instance by giving them a political flavour or presenting them within a narrative of persecution/significant harm. It was particularly difficult to establish an overview, timeline or sequence for even significant events and claims; and correspondingly difficult to match these with the applicants’ travel or other personal activities. The applicant attributed this in part to his memory, and to the sheer volume of adverse experiences, large and small. The Tribunal is concerned, however, that he was often not drawing on past personal experiences.
In the assessment below, the Tribunal seeks to address the substance of the claims and evidence in some logical order; rather than to deal with them individually, as presented.
Travel
Residence and travel abroad
The applicant’s prolonged periods abroad and his travel history raise questions, first, about his claimed political interests and profile in Bangladesh, and second, about his need for protection in that country. The following are pertinent:
§ From 1984 to late 2004, for more than twenty years, he was based in [Region 1] ([Country 3] and [Country 4]) and [Country 1]. It is difficult to believe that a person with a strong interest in domestic politics would choose to live abroad, given their limited scope to follow, let alone influence political developments in Bangladesh. Similarly, it seems unlikely that a long-term resident abroad (who does not have any prior personal or family political profile) would be able to establish any kind of profile in their home country.
§ According to the applicant’s own statements, he unsuccessfully applied to migrate to [Country 5] in 1998; after staying in [Country 1] from 1998, he was refused entry in 2004; and he and the family unsuccessfully applied for visas to Australia (August 2014), [Country 1] (January 2015) and [Country 5] (October 2015). There is no obvious correlation between the applicant’s periods abroad and visa applications, on the one hand; and the fortunes of the BNP, on the other. For example, the BNP led a coalition government following the October 2001 elections, but this appears to have had no bearing on the applicant’s continued residency in [Country 1] or his later efforts to prolong that.
§ As noted above, all the applicants visited [Region 3] for tourism, in June 2014 and again in December 2014. The applicant husband also visited [Country 2] in May/June 2015 to explore business opportunities.
In a submission to the Tribunal, the applicant refuted the delegate’s suggestion that he appeared motivated to seek permanent residency abroad, rather than to flee persecution or significant harm in his home country. In his statement of 14 June 2016, he noted that, if he had wanted to emigrate from Bangladesh, he would not on his return there in 2004 have invested heavily in the [industry][8]; or bought property; or decided to have the third-named applicant in 2007. There may be some superficial appeal to these points, but the Tribunal does not accept them as necessarily correct. By his own evidence, he returned to Bangladesh in late 2004 because his efforts to migrate abroad had failed; and he had sizeable savings. In these circumstances, his decision to invest in Bangladesh’s [particular] sector and property market seems unremarkable; as does the applicant parents’ decision to have their third child in that country. The Tribunal considers that the applicant has indeed shown a strong desire to live abroad, over a period of almost 35 years (at the time of this decision). While this does not preclude that he is also a person in respect of whom Australia has protection obligations, it is in the Tribunal’s view a relevant consideration when assessing his circumstances as a whole.
[8] He stated that he invested [amount] – about $A [amount] at current exchange rates – into his [industry] investments alone.
The family’s trips to [Region 3] during 2014, and the applicant husband’s return trip to [Country 2] in mid-2015, are particularly difficult to reconcile with their claims of ongoing threats and incidents, and the claimed risks of travelling through Dhaka Airport. The applicant’s somewhat casual comments that the family needed holidays, and that he was exploring business opportunities in [Country 2] in mid- 2015, reinforce the Tribunal’s concerns.
Delayed departure from Bangladesh
The applicants obtained Australian visitor visas on 3 September 2015[9], and yet did not arrive in Australia until [December] 2015. As the Tribunal flagged at hearing and put in its s.424A letter, their visitor visa applications included confirmed flight itineraries departing Dhaka [in] September 2015. This suggests that the applicants did not depart Bangladesh in response to any fears, hiding in between their Dhaka properties and the ‘secret’ family home in Tangail. Rather, it suggests that they had been able to secure bookings to leave, and that they changed these for convenience or similar reasons.
[9] As discussed at hearing and evident from the delegate’s decision record.
The applicant stated that the family left Bangladesh during the holiday period (following the 16 December Victory Day national holiday), as he believed that airport security was laxer then. He did not explain the time delay between the 16 December national holiday and the family’s eventual departure; or his source of information about security practices at the airport. The applicant wife[10] alluded to another problem as well, namely that it was difficult to secure tickets to depart. The Tribunal finds this unpersuasive, as the applicants actually produced evidence of confirmed tickets with their visitor visa application.
[10] In her written statement of 17 June 2016.
The Tribunal considers the applicant parents’ stated reasons for their delayed departures to be expedient and lacking in credibility. For instance, the applicant commented that, even during the family’s holiday trips to [Region 3] in mid-2014 and December 2014, and his business trip to [Country 2] in mid-2015, they were afraid of going through Dhaka Airport security. But he added that he knew that the airport lacks sophisticated technology or security, and that corruption is rife. He submitted comments on [a] website which describe lax security and corrupt behaviour at the airport. In the Tribunal’s view, it is difficult to believe that he was willing to undertake such risks for the purpose of discretionary travel in 2014 and 2015; and yet the family was unwilling to do so after receiving their Australian visas in September 2015. The Tribunal finds the applicant’s comments unpersuasive, and does not accept that any concern about Bangladeshi airport security, or apprehension by the police, influenced the timing of their departures.
The Tribunal’s concerns are reinforced by the applicant parents’ scant account of their activities in the period after they obtained their Australian visas. Their general references to being in hiding, in Dhaka and Tangail, were vague and unpersuasive. The Tribunal considers these circumstances in more detail below.
Mental health issues
The applicant raised concerns about his mental health in his statement of 14 June 2016, submitted after his Department interview. He stated that he had been nervous; he has been suffering memory loss, in part because he tries to suppress thoughts of past harm that he has suffered; and he has been suffering from stress and anxiety that affects his memory. He claimed that he had never before undergone such ‘intense questioning’.
The applicant submitted to the Tribunal a GP mental health plan (referral to a specialist dated [August] 2016 and a psychological report from Mr [K], dated [October] 2016. The latter assesses that the applicant suffers ‘clinically significant symptoms associated with post-traumatic stress disorder’, and notes in particular memory problems.
A further letter from Mr [K] of [August] 2018 states that the applicant had seven consultations between [August] 2016 and [August] 2018. Prior to August 2018, the most recent consultation had been 13 months earlier, [in] July 2017. Mr [K] records a range of stress-related symptoms, and repeats his earlier observations, without reaching a firm diagnosis. He opines that the applicant’s ‘symptoms are directly attributable to the events experienced in Bangladesh and his fear of being returned there’. As the Tribunal noted at hearing, Mr [K] appears to have relied on the applicant’s statements as recounted to him. There is nothing to indicate that he tested the veracity of these, or that he has the expertise to undertake such an assessment.
At hearing and in written submissions, the applicant also claimed the following:
§ He said that he is currently employed at [Employer] as an [Occupation]. He claimed that he had had difficulty holding down previous positions, as he is forgetful. For instance, he was fired from one job because he misplaced his pager. Asked whether his current employer had sought job references, he said that he believed they had contacted prior employers by telephone. The applicant’s evidence was selective and, in the Tribunal’s view, unreliable. The Tribunal is not satisfied that he suffers memory loss or other mental health issues that have adversely affected his work or daily life; or, by implication, his capacity to recall events in Bangladesh and discuss these at hearing.
§ The applicant wrote more generally that he has ongoing anxiety and depression; and that he is unable to maintain a normal life.
The Tribunal acknowledges the need for care in assessing mental health conditions; their possible impact on a person’s presentation at hearing; whether they are attributable to any (claimed) past experiences in the country of reference; and whether they signal that an applicant has any ongoing psychological condition that may need further treatment. In the present case, the medical evidence is scant. The Tribunal is not satisfied that the applicant has any mental health condition that affected his capacity to present his case at hearing. The Tribunal accepts that the applicant may have some ongoing anxiety, perhaps in relation to the family’s uncertain migration status. However, it is not satisfied that these are attributable to any particular incident in Bangladesh, or the family’s overall experiences there. It is also not satisfied that he is currently receiving treatment for any such complaints, or that he will require it in the reasonably foreseeable future.
The Tribunal’s full assessment follows.
Political involvement in Bangladesh
Period from 1984 to 2004
The applicant claims that he first became interested in the BNP in 1979, inspired by the leadership of former Prime Minister Ziaur Rahman. He joined the party in 1981, while a student. At that time, the BNP was in power. He paid a monthly membership fee of a small nominated sum (5 taka). The applicant claims (without specifics or supporting evidence) that his party membership remained active ‘throughout the years’. He later became ‘an active member of the BNP Central Committee’.
General country information indicates that the BNP is one of Bangladesh’s oldest and largest parties, currently the main opposition party. It has tended to have a stronger urban and business base than the ruling Awami League. Broadly speaking, then, the applicant’s background suggests that he might well lean towards the party.
The applicant’s prolonged absence from Bangladesh raises obvious questions about his degree of political commitment or influence. At hearing, he said that he maintained his political interests while living abroad, although for practical reasons he could not participate much. He resumed some contacts on his return to Bangladesh between 1991 and 1992; and during other return visits, sometimes of two to three months.
In the Tribunal’s view, it is unsurprising that the applicant had limited scope to keep abreast of political events in Bangladesh during these brief visits or while overseas, let alone be politically active. As discussed at hearing, this background suggests that his priority was not engaging in Bangladesh politics (through the BNP), but rather that he was looking for opportunities to live and work abroad. As noted above, the applicant pointed to his property purchases and investments in Bangladesh, and the birth of his youngest child, after his return to Bangladesh in 2004, as evidence that he genuinely wanted to settle back here. However, the Tribunal finds these unpersuasive.
Political activities from 2004 until departure for Australia
On his return to Bangladesh in 2004, the applicant opened a [business] in Dhaka, and n 2006, he he set up a [second] business with a partner, [Mr M], who he claims was an AL member. The businesses prospered while the BNP was in power (presumably a reference to the brief period until the caretaker government was installed in early 2007), and the applicant used the profits to buy the properties that he still owns.
The applicant claimed that he became actively involved in the BNP, although he was not a ‘leader’. He typically attended meetings, political processions and charity events. He recruited new members, by going door to door with leaflets; and he made donations to the party. The Tribunal sought further insights as to how he undertook these activities, particularly given his business commitments. The applicant replied that he was not always involved in the day-to-day operations of his businesses in Gazipur (an industrial area to the north of Dhaka); he used to drive back to Dhaka in the afternoon to fulfil his political commitments.
§ Overall, the Tribunal had the impression that the applicant was reciting a catalogue of political activities, rather drawing on personal lived experience.
§ As described, his activities during this period involved participation in party gatherings, canvassing potential supporters and donating money. The Tribunal finds it unsurprising that a newly established businessman might make donations to political or other local groups, as a gesture of goodwill. As for other activities, such as party gatherings, these cover a wide gamut of events and often involve large numbers of people. It is difficult to assess whether and to what extent the applicant participated in such events, in what capacity, and what if any significance these had. The applicant’s businesses priorities suggest that his commitment was limited. This raises particular questions as to whether he engaged in the time-consuming, grassroots work of door-knocking for the party, and recruiting new members.
§ Given the applicant’s vague account, the Tribunal does not accept that he had any organisational or official role in the BNP during this period, or any other activities that gave him a political profile.
The applicant also claimed that in 2010 or 2011, he became [an Office bearer] or Assistant [Office bearer] of the [Suburb 1] Thana BNP branch. He said that he was elected to this position. [Suburb 1] is the commercial hub of Dhaka City; within it is the BNPs main office in Nayapaltan. There was little context or insight as to what led the BNP to give him such a position.
The Tribunal asked the applicant specific questions relating to his knowledge of and involvement in the party:
§ The applicant did not know the name of his electoral constituency, other than to state the name of the Dhaka suburb ([Suburb 1]). Later in the hearing, he suggested that it was Dhaka-8. While the Tribunal accepts that there may have been some redrawing of electoral boundaries or other reasons for the uncertainty, the applicant did not give the impression that he was drawing on past recollections.
§ He confirmed his claim to have campaigned for the BNP candidate in the 2008 parliamentary election. He recalled, with some difficulty, the name of the successful AL candidate. Pressed for detail as to the BNP candidate that he had campaigned for, he guessed that it had been Shirin Sultana.
§ The applicant said that he also voted in the parliamentary election held on 5 January 2014. Asked to comment on country information that the BNP and the 18-party opposition coalition that it led announced a boycott of the election on 1 December 2013, just hours before the final deadline for nominations[11], the applicant said that the BNP implemented this in a different way in different constituencies. He said that the BNP candidate had been Mirza Abbas; he could not recall the name of his opponent (the successful, uncontested AL candidate). In the post-hearing submission, the applicant stated that he voted for the BNP candidate Shirin Sultana, but that the AL candidate Saber Hossain Chowdury was re-elected unopposed after the opposition parties withdrew their candidacies in a boycott of the election.
§ He recognised the BNP’s Central Office in Nayapaltan (Dhaka), based on photographs the Tribunal showed him of the internal rooms with seated party leaders. He also recognised the photographs of some key national BNP politicians. However, he could not comment on the layout of the central office (such as which floor of the building it was located on), or other peripheral details. Even allowing for the applicant’s comment that the central office and the [Suburb 1] branch office are in different premises, an overriding concern is that he did not demonstrate direct personal familiarity with local BNP activities.
[11] ]

The applicant’s claim to have voted for a BNP candidate in the January 2014 general elections is particularly surprising. The post-hearing submission expands on his statement that the BNP-led 18 party opposition alliance boycotted the election ‘part way through the elections’. It notes that the precise date in early December 2013 when the BNP (and its alliance partners) announced the boycott was unclear, as reports from the period indicate an evolving picture. The applicant appears to be blurring the distinction between the election campaign and the actual voting period (on 5 January 2014). His comments leave unresolved the Tribunal’s concern as to how he could vote for any BNP candidate on 5 January 2014 if they had boycotted the elections (irrespective of the precise timing of when they announced the boycott). The Tribunal is not satisfied on the available material that the BNP candidates’ names were nonetheless on the ballot paper on election day; that there was any pre-polling, or any other circumstance that might explain how he voted for a BNP candidate in these circumstances.
The Tribunal’s interest lies not in the applicant’s knowledge of individuals or other details, but rather in gauging whether he was able to draw on personal experience in describing local political events and dynamics. Even allowing for the possibility that he has difficulty remembering certain details, or that he was nervous at hearing, the Tribunal considers his knowledge of local BNP politics to be that of a local businessperson who generally favours the party, but not that of an officeholder, leader or even active member
The applicant referred to his involvement in a number of specific BNP protests, such as on [date] March 2014 and [another date] March 2014, which led to his arrest. He also mentioned having attended BNP protests on [date] July 2015, [another date] July 2015 and [August] 2015. The last of these allegedly ended with the police chasing and beating him, resulting in a knee injury and the applicant’s hospitalisation. Despite his reference to specific dates, the applicant did not know what days of the week these incidents occurred, or why (given his lack of recall about other dates and time periods) he remembered these dates. He suggested that they were part of his ongoing political activism, and they were significant because of their impact on him (arrest or physical injuries).
Given the applicant’s claimed difficulties in recalling details of his political experiences, the Tribunal also explored whether he had corroborative material from this period, particularly from 2010/2011 on, when he claimed to have held a senior position in a BNP branch in central Dhaka. It had difficulty eliciting from him meaningful details or any supporting evidence, in particular any contemporaneous evidence, eg. photographs, correspondence, minutes of BNP meetings or other materials. The applicant pointed to the (recent) statements of support, but said that he did not think to bring other evidence from Bangladesh. The Tribunal noted the period over which he had claimed to have been active; and his claimed position as an (Assistant) [Office bearer] of a thana branch, wondering whether political colleagues might have records to hand. This did not yield further insights.
The submission of 17 October 2018 includes a printout of a brief email dated [September] 2018, in which a person named [Mr F] advises the applicant that he found two posters in his ‘archive’, but regrets not being able to help further.
§ The two ‘posters’ are two pages (possibly A4 size) showing the images of BNP leader Begum Khaleda Zia and the applicant, among others, with Bengali language text (and one has some English language text). One of the ‘leaflets’, dated [August] 2013, gives the applicant’s name as [Office bearer] of the BNP’s [Suburb 1] Thana office, and congratulates Begum Zia on her birthday. The second, bearing the names of [an official] of the [Suburb 1] Thana Ward No.34 branch and that of the applicant, as its [Office bearer], encourage participation in a three-day strike in November 2013.
§ In the Tribunal’s view, the images of the ‘posters’ reveal little. It is unclear whether these are images of actual posters that the applicant used in the past (there is, for instance, no sign of wear and tear); digital files of posters that the BNP had printed out; or more recent mock-ups. Furthermore, it is unclear why the applicant presents himself as the [Office bearer] of the BNP’s [Suburb 1] Thana in August 2013, and of its Ward No. 34 branch (a subset of the Thana) in November 2013.
§ The source of the documents is also unclear. The author, writing in English, identifies himself as ‘[Mr F]’ and goes on to state that he cannot use his real ID or usual email as he is under ‘observation’ (in other words, surveillance). In supplementary comments, the applicant wrote that ‘[Mr F]’ is [Full name],[12] Mr [A]’s associate. [Mr F] had his daughter send the material to the applicant, as he ([Mr F]) is under constant scrutiny.
§ The Tribunal is not satisfied that this is a genuine exchange between the applicant and a former BNP associate; rather, it appears to be a text designed to bolster this application. Furthermore, given the extent of the Tribunal’s concerns about the applicant’s credibility, it is not prepared to accept that the woman who sent this is the daughter of [Mr F], who is in turn an associate of Mr [A].
§ The Tribunal places no weight on the email or the images as evidence of the applicant’s past political engagement in Bangladesh.
[12] The submission gives the name as ‘[alternative spelling]’. The first of these names appears to be the name [spelling] or [spelling] (a typographical or transliteration error), and the last name is unclear.
The applicant submitted letters from Mr [A], [Office bearer] of the BNP, dated [December] 2015; and from Mr [B], who wrote in July 2017 in his capacity as [Office bearer] of the [Suburb 1] Thana BNP. Mr [A] wrote that the applicant is ‘personally well-known to me’, and that he is a ‘political worker of [Suburb 1] Thana BNP’. The letter makes no mention of the applicant experiencing any problems. Asked why Mr [A] had not referred to his position as [Office bearer] or Assistant [Office bearer] of that branch, the applicant replied vaguely that Mr [A] took the perspective of someone from central office. The Tribunal also discussed with the applicant press reports that Bangladesh law enforcement agencies had closed the BNP’s Nayapaltan Central Office late on [date] January 2015, and that local BNP leaders led by Mr [A] re-entered the premises [in] April 2015, 90 days later. The closure of the BNP’s main office for some three months attracted widespread coverage, but the applicant did not appear to be aware of it. He merely commented that there were lots of things happening all the time. The applicant also did not recognise Mr [A] in the photograph showing him re-entering the building, or know what the images related to. The Tribunal accepts the applicant’s and his representative’s comments that Mr [A]’s face is somewhat unclear in the image, and that it would unwise to draw adverse inferences from his evidence at hearing. What concerns the Tribunal, however, is that the applicant appeared to have little knowledge of the goings-on with the BNP in central Dhaka during this period, generally, beyond stating that they were always under pressure.
The applicant nominated Mr [A] to give evidence. As noted above, the Tribunal decided not to call Mr [A], following the applicant’s advice that he thought Mr [A] may be at risk if the Tribunal were to do so. Provided of course that the Tribunal were satisfied as to the identity of the person giving evidence, it accepts that Mr [A] may have been able to shed further light on his relationship with the applicant, restate the contents of his letters and perhaps give some more details. However, the Tribunal does not accept that such evidence, even if favourable to the applicant, would have overcome the Tribunal’s very significant concerns about the applicant’s claimed profile and activities.
The Tribunal finds that Mr [A] wrote a general letter of support to assist a compatriot and BNP supporter, and places minimal weight on the letter or Mr [A]’s availability as a witness, as evidence that the applicant was an office bearer or has any local profile. In relation to the letter from Mr [B], [Office bearer] of the [Suburb 1] Thana BNP, while he wrote that the applicant was [Office bearer] of that branch, and participated in organising and funding the party’s programs, his vague references to the applicant having faced false political cases after 2008 and the seizure of his business are curious. The Tribunal places little weight on this letter as independent corroboration of the applicant’s political position (or the problems he allegedly faced).
In sum, the applicant has no contemporaneous supporting evidence from Bangladesh. He explained that he did not know he would need such evidence for this application. He said that he has been unable to obtain further evidence of his past activities there, due to his prolonged absence from the country, and its ongoing political and social disarray. His attempts to obtain such material have not succeeded to date. Relevantly though, the applicant claims his political activities go back to 2004; he held an official position from 2010/2011; and that this took place in central Dhaka’s business district. The BNP continues to operate there. The Tribunal finds the applicant’s responses to be unpersuasive. It does not accept that he has genuinely tried to track down any such material. This is a strong indication that there is no such material, and that the applicant did not engage in BNP political activities or hold a party position at any time.
The Tribunal notes that the applicant’s daughter and nephew gave written statements confirming the applicant’s ‘activism’ in the BNP (in his daughter’s words); and that Mr [H] confirmed this in his oral evidence. The applicant also presented a range of evidence showing his association with a BNP group and supporters in Australia. This included written and oral evidence from Mr [J], [Office bearer] of the ‘BNP Australia Inc’; photographs of the applicant at some BNP functions and protests in Australia in 2017 and 2018; purported Australian and Bangladesh newspaper articles referring to his activities (including mention of his name); and some examples from his [Social media] account showing support for the BNP. In the Tribunal’s view, the applicant’s activities in Australia are consistent with its overall impression that he favours the party, and was a local supporter for some years in Bangladesh. However, they do not shed light on whether he had any greater level of political commitment, activity or profile in Bangladesh.
The Tribunal finds on the material before it that the applicant supports the BNP, that he may have attended some large scale public gatherings, and that he may have made some donations to the party (as well as other groups). It does not accept that he had any interest, role or profile beyond the level of general support. Specifically, it does not accept that he was a ‘grassroots leader’, an activist, an active member, office bearer in the [Suburb 1] thana BNP or that he had any other kind of political profile, through the party or as a local businessman. The Tribunal also does not accept that the applicant has any political opinion or motivation, which he has had to suppress due to any fear of general political violence or threats in Bangladesh.
Past harm in Bangladesh
The applicant made numerous claims of past harm in Bangladesh, in 2013, 2014 and 2015. At hearing he said that there had been many incidents. Except for a few instances when he had precise dates, mostly of protests that he claims to have attended, the applicant struggled to give even a broad account of the sequence or timeline of events, let alone how these related to other aspects of his life (such as business activities, travel abroad and movements within Bangladesh). In the Tribunal’s view, he avoided committing to any firm dates or details, preferring instead to talk in broad terms.
General political targeting
The applicant claims AL people started to persecute him ‘when [they] came to power in 2006’. In fact, the AL won the election that was held in late December 2008. In any event, the Tribunal had difficulty obtaining from the applicant details of what he actually meant by these references. At hearing, he said that the AL caused many problems, put him (and others) under pressure, and interfered with their daily life. For instance, there were problems taking the children to school. The Tribunal found his evidence to be vague, improvised and unconvincing. It is not satisfied that there were in fact any incidents in the first years of the AL government that, individually or cumulatively, involved persecution or significant harm.
Bangladesh authorities’ pursuit of the applicant
The applicant made various claims about the Bangladeshi authorities’ pursuit of him, for political reasons. Some of these consisted of general statements; others related to specific incidents and dates; and on some occasions, the applicant made vague or changeable claims with little apparent interest in the details. As a result, it was difficult for the Tribunal to gain any coherent, consistent account, let alone a firm basis on which to compare them with other events (such as the applicant’s overseas travel and visa applications).
To gain an overview, the Tribunal enquired at hearing about the applicant’s adverse encounters with the authorities. He said that the police had pursued him ‘many times’; that he had been detained or arrested ‘many times’ in 2013 and 2014; that the police had obtained his details on perhaps five or six occasions; and that he had been taken to the police station for processing twice, once [in] March 2013 (an apparent reference to the arrest in 2014) and once [in] August 2015. He lived in constant fear. He was not sure when he first discovered that there were criminal charges against him.
According to the applicant’s written claims, the Bangladesh authorities started causing him problems from early 2014. At hearing, however, he said that the police first came looking for him in 2013, and from that time, he was unable to stay in his home for more than two nights. He provided (purported) court and police documents arising from an incident in November 2013 (which he claimed not to have attended), but later said he did not become aware of this particular charge until 2016.
The applicant wrote that he attended several protests in March 2014, in Nayapaltan in central Dhaka.
§ On [date] March 2014, there a protest outside the BNP’s central office. This led to the arrests of many members and leaders. The applicant tried to ‘talk with the police’. Later, he tried to run away, but the police caught him, arrested him and assaulted him. He was left with injuries to his legs and buttocks, and received treatment in hospital. (There was no immediate follow-up. However, the applicant claims that the authorities later brought (politically motivated, false) charges that he engaged in acts of public vandalism on that day.)
§ Again on [another date] March 2014, the applicant participated in a protest in central Dhaka (presumably having recovered from any assault a few days earlier). The police tried to disperse the gathering, and arguments flared up. The applicant fled the scene, but was arrested, taken to the police station, to be released shortly afterwards.
The applicant claimed that, after these arrests, the ‘political persecution’ that the AL subjected him to became much worse. In his original statement of claims dated 21 January 2016 – which is a poorly drafted and confusing document – the applicant stated (at paragraph 33) that the police came to his home in Shahjahanpur to arrest him in December 2014; and (at paragraph 24) that there is an arrest warrant alleging acts of public vandalism that allegedly occurred on [the first date] March 2014. He also wrote that, when the police came to his home in December 2014, he was not there. On learning of their visit, he went into hiding in Tangail. BNP leaders later told him that the police were going around the homes of BNP members, to arrest them. In any event, the applicant wrote that his brother-in-law went to the police station to request a copy of the charge sheet, but the police refused to assist. Instead, they quizzed him about the applicant’s whereabouts. The applicant did not state specifically how he knows that the police pursuit of him relates to the protest on [the first date] March 2014.
As noted above, the applicant told the Tribunal that his problems with the police began in 2013, on [date] November 2013 to be precise. In response to questions, he said that the date was significant to him because it changed his life, although he could not remember what day of the week it was. Furthermore, he claimed that the charges relate to an event that he did not in fact attend; and that he became aware of these charges only in 2016. Evidently drawing on the text of the documents, he said that [in] November 2013, there was a meeting at the Dainik Banglar Moor, a major junction in Dhaka, at which BNP leaders were present. The applicant said that, even though he was not present, the police included his name in a list of 64 persons accused of unlawful assembly and a bomb attack. The Tribunal has since found a report about a BNP protest blockade in the capital on that day, which resulted in the burning of a passenger bus and at least 19 persons being injured,[13] although it is not entirely clear that this relates to the same incident.
[13]
The applicant presented a copy of an FIR (in Bengali with English translation) and a charge sheet, in which he is listed as no. 24 of 72 persons accused of being involved in the incident. The list identifies him as a member of the BNP’s youth wing (‘Jubodal’), but the applicant commented that the police do not care about such distinctions when drawing up false claims. The applicant said that the case must have been filed while he was in Bangladesh, but he became aware of it later.
The Bengali texts, purportedly photocopies of the originals held by the court, appear to consist of (a) handwritten cover sheets, and (b) a typed appendix listing the names of the accused persons, including the applicant - although the translated texts do not clearly demarcate between the handwritten and typed portions of the documents. The Tribunal signalled its concerns about the provenance and genuineness of these documents, given country information about the prevalence of document fraud in Bangladesh[14]. The applicant explained that his security guard learned about the charges when the police used to come around looking for him (the applicant). He (the security guard, on the applicant’s behalf) paid a court lawyer to obtain copies of the documents, and the applicant’s nephew sent them to him in Australia by courier. The Tribunal has a number of concerns about these documents. First, the applicant’s purchase of these documents raises broad concerns about their provenance and genuineness, and why he was unable to make a similar arrangement to obtain copies of the charge sheets and FIRs relating to the March 2014. Second, the links between the handwritten cover sheets and the typed attachments on which the applicant’s name purportedly appear are far from clear. Third, the Tribunal’s concerns about the applicant’s credibility as a whole reinforce its concerns about these documents. Taking all these concerns together, the Tribunal places no weight on these purported documents, as evidence that the applicant was charged with false, politically motivated criminal offences in connection with an incident in November 2013 (which he did not in fact attend).
[14] The delegate’s decision record contains reference to a Canadian IRB report dated 2015, which canvasses the range of documents that can be fraudulently produced in Bangladesh. The applicants provided a copy of that report to the Tribunal.

The Tribunal asked the applicant about his claim at the Department interview that he received a summons to appear in court in 2015, and that he opted not to attend, fearing that he would be ‘disappeared’. He replied vaguely that the security guard sighted a summons, at his Shahjahanpur residence; but the applicant was not there at the time. He said that there had been so many incidents in 2013, 2014 and 2015 in which the security guard had to pay off the police; he could not recall any further details.
The applicant claims separately that [in] August 2015, the police chased him at a demonstration and struck him on the back and the right knee. He suffered a slight knee fracture as he fell forward, and was admitted to hospital for three days.
The applicant produced a document on the letterhead of [Hospital 1] in Dhaka, dated [August] 2015, certifying that he ‘was admitted […] for political injury from [8]/15 to [8]/15’. It goes on to state that he is now in good health, and can lead a normal life. This document is highly problematic. First, the reference to a ‘political injury’ strongly suggests that the purpose of the letter was to assist a protection visa application, and that it was not produced in any medical context. Second, it is unclear why, if the certificate was signed on [date] August 2015, it states that the applicant was admitted to hospital on that day and would be in good health four days later. This suggests that the letter was not in fact written and signed on [date] August 2015, but rather that it has been made to order, at some later point in time. Finally, the applicant stated at hearing that he suffered a fracture to the knee, and the treatment consisted of bandages and physiotherapy. He continues to have some problems walking stairs to this day. However, he made no mention of any pain or disability at his medical examination for an Australian visa on 21 January 2016[15].
[15] The Tribunal discussed this with the applicant at hearing, and put it to him in its s.424A letter.
The applicant submitted a letter from a hospital, dated [March] 2018, in which a doctor claims that hospital records confirm that the applicant was admitted [in] August 2015, treated for a knee injury, and then referred on to a specialist hospital for further treatment. In essence, this document seeks to ‘correct’ the letter that the applicant originally provided.
At hearing, the applicant confirmed that he has ongoing problems with his knee, for instance, pain if he walks up stairs. Following the injury, he had it bandaged. At hearing and in its s.424A letter, the Tribunal noted that the applicant did not register any concerns at his medical examination for an Australian visa on 21 January 2016, which could at least raise questions about the significance of the injury. In his comments/response, the applicant indicated that this issue did not arise in the context of his medical examination.
The Tribunal places no weight on the original hospital letter of [August] 2015 describing it as a ‘political injury’, or the subsequent letter purporting to give the correct version of events. It finds that the applicant arranged for these letters to be manufactured for the purposes of this application. The Tribunal accepts that the applicant suffered a knee injury after a fall. It does not accept that the police were responsible; that it occurred during any political events; or that it occurred in August 2015 (that is, that it was related to the timing of the applicants’ visa applications or their eventual departure from Bangladesh). The Tribunal finds instead that the applicant has exaggerated and misconstrued this injury.
The applicant claims that there was an ongoing series of police calls on his home; that his security guard used to bribe them to go away; and that this pattern has continued since his departure from Bangladesh. He also suggested that the police came looking for him in the Shahjahanpur apartment, implying that the Gulshan residence was less risky and that his family home in Tangail was a ‘secret’ location.
The Tribunal found these claims to be vague and generalised. The applicants’ conduct – in particular, their trips abroad during 2014 and 2015; their continued stays in their two homes in Dhaka and in Tangail; their delayed departure from Bangladesh; and their posting on social media of their whereabouts (including the applicant son’s continued attendance at school up to December 2015) – all reinforce the Tribunal’s conclusion that these claims are completely untruthful. It finds that the Bangladeshi authorities had no adverse interest in the applicant at any time.
AL cadres intimidate the applicant and his family
The applicant claimed that AL cadres confronted and threatened him and his family directly on various occasions.
Home invasion(s): The applicant wrote that in late 2014, AL cadres came to his home and threatened him and his family at gunpoint, ordering him to cease his involvement in the [factory]. At hearing, he said that one afternoon in about June 2013, about six or seven AL student cadres (members of the AL’s Chhatra League) came to the house in Shahjahanpur, armed with pistols and other weapons. Both applicant parents were at home. The AL cadres smashed the windows, and told the applicant to stop his involvement in the [business]. They did not inflict any physical injury on the applicants. He also linked this with his [son’s] departure to study in [Country 1] in 2013.
Asked if there were any other instances when the family were held at gunpoint, the applicant appeared confused and said that armed AL cadres came to the house on other occasions. The Tribunal signalled its disquiet about the applicant’s vague, uncertain evidence. He said that things were gradually getting worse after the 2008 elections, and again after the 2014 elections. It was not possible to seek police protection, given the political nature of these attacks. And he commented that at least the family had the option of staying in Gulshan, a generally safer area.
Attempted attack on bus: He claimed that one day, he and the second-named applicant were on a bus (their daughter having borrowed their car for the day) when AL cadres spotted and started chasing him. He said that this happened after the family’s holiday in [Country 7] and [Country 6], and before his business trip to [Country 2] (hence between mid-2014 and mid-2015). He jumped off the bus; he did not notice whether they followed him. The applicant wife also described this event, confirming in general terms what bus route they were on, and that the applicant jumped off the bus to escape the AL cadres.
AL cadres’ pursuit of the applicant wife and the son: The applicant parents claim that AL cadres also intimidated the applicant wife when she collected the son from school. The applicant wife wrote that they used ‘humiliating and bad language as a result of [her husband’s] membership in BNP’. At hearing, the applicant husband recalled that this happened a few times. One occasion in 2014 was serious – the AL cadres told his wife that they could kidnap the applicant any time. The applicant wife, in her brief oral evidence, confirmed that this was a recurring and frightening event.
The applicant parents claim that, as a result of this intimidating behaviour, the applicant wife was afraid to walk on the street, fearing that she would see the AL cadres who were planning to kill all the applicants. She feared for her life and stayed indoors.
Again, the first- and second-named applicants’ accounts of these incidents, and their impact on the family were vague, uncertain and exaggerated. It is particularly difficult to believe that the applicant remains unsure about the timing and details of direct threats to family members – being held at gunpoint in the home; being chased on a bus; and/or being intimidated near the son’s school in the well-to-do area of Gulshan. Finally, the applicants’ conduct during this period – including their regional travel; their continued residence in Dhaka and Tangail; their delayed departure from Bangladesh; and the applicant’s posting on social media of his son’s whereabouts – leads the Tribunal to conclude that none of these incidents occurred.
Politically motivated business dispute
The applicant claims that his business partner, [Mr M], was a member of the AL who used his political connections to undermine the applicant’s investment and eventually seize the business from him. As a result, the applicant no longer has any interest in the business, and draws income only from his rental properties.
The applicant told the Tribunal that from 2006, he operated [another] company, and also became involved in the [sector]. He was introduced to [Mr M], who worked in a [factory], and who persuaded the applicant to invest in the business. There were initially ten shareholders, but the applicant eventually bought out the smaller ones. The applicant said that he did not know about [Mr M]’s links with the AL at the time. As the Tribunal signalled at hearing, this is somewhat surprising, given the close links between politics and business in Bangladesh, and the political turmoil that prevailed at that time.
Problems in the business
The applicant claimed that he was subject to systematic pressure from AL cadres acting on [Mr M]’s behalf, from about 2013. The Tribunal noted that the AL formed government in late 2008. The applicant replied that [Mr M] seemed to have a good understanding with the party during this period. In other words, he implied, it helped the business that one of the partners was close to the government. The applicant was based in Dhaka, and [Mr M] in the factory in Gazipur.
The applicant described the increasing efforts from 2013 by [Mr M], often working through AL cadres, to oust him from the business, particularly in the lead-up to the 2014 elections.
§ The applicant claimed that in July 2013, AL cadres called on the business and stole [products] that were ready to ship abroad. As a result, he was unable to fulfil the contract and the buyer cancelled the order.
§ AL cadres also used to come to the business, vandalise it and/or steal items. They were intent on putting the applicant under pressure to walk away from his share in the business, and hence leaving it for [Mr M].
§ As another example, the applicant said that he called on the factory in Gazipur, and noticed that there were product shortfalls. [Mr M]was cagey; the applicant believes that he was giving product to AL cadres to support them.
§ This continued right up to the 2014 general elections, when the applicant found himself locked out of the business entirely.
§ The applicant said, in response to the Tribunal’s questions, that he went to the police to lodge a complaint, but they refused to file a report. He also tried to meet with local people, without any outcome. The applicant learned that [Mr M] had ties through marriage with the owner of the [factory], further jeopardising any prospects of the applicant obtaining relief. There was no one who was willing to assist the applicant.
§ Further problems arose when suppliers (of [components] and other items) started to approach him (the applicant) personally, pressing for unpaid bills to be met.
§ The applicant said that, although the issue initially revolved around money, it became a matter of life and death for him.
§ As for any measures to protect himself legally or financially, the applicant said that [Company name] remains registered, but he has not checked its status more recently.
The Tribunal signalled some broad concerns about this claims, such as why the applicant had not enquired about his business partner’s political and social connections, given the importance of these in Bangladesh business life; why he thought [Mr M] would be behind vandalism, thefts and the disruption of supplies if this also undermined the value of his shares; and the applicant’s uncertain efforts about what he had done to protect his legal and financial interests (for instance, through a lawyer).
Documents provided the family’s visitor visa applications raise further questions.[16] These included evidence of family holiday trips in [Regional 3] in June and December 2014; [Company name]’s bank statements showing regular banking up to at least August 2015; the applicant’s assurance that his visit would not interfere with his ongoing receipt of income from the business; excerpts from his personal bank account showing a regular pattern of deposits and withdrawals up to the end of August 2015; and a letter from Mr [M] supporting the applicant’s proposal to visit Australia from September 2015 for holidays.
[16] The Tribunal discussed these at hearing, and also put it to the applicants in writing under s.424A.
At hearing and in his written comments/responses, the applicant explained that he provided this material only to secure Australian visas, and the family’s escape from Bangladesh.
§ He claimed that the company secretary, with whom he was still on good terms, organised copies of [Company name]’s bank statements, as well as the letter from [Mr M]. To support this, the applicant presented a recent letter from the bank, dated [October] 2018, which states that [Mr M] has been the sole signatory on the business account since June 2014. The applicant gave no details on how he obtained this information, or why the bank referred only vaguely to ‘June 2014’.
§ The applicant also suggested that [Mr M] may have been happy to write the letter of recommendation to remove any threat or challenge from the applicant in the future.
§ He also reiterated that he stopped receiving business income from [Company name] in June 2015 (a year later than his claimed ouster from the business), but he continued personal banking because he had ongoing rental income from his properties.
The Tribunal considers highly problematic the applicant’s claim that his business partner, backed by political thugs and the local authorities, ousted him from the [business]. First, its adverse view of the applicant’s credibility overall, and the findings above that he was no more than a supporter of the BNP, leave it unable to accept at face value that he was involved in a business dispute that was in fact political in nature. Second, the claim that [Mr M] embarked on this course of action only in 2013; that he ‘sabotaged’ it through thefts and vandalism (which, if true, would have hurt the business overall); and that the applicant nonetheless obtained business documents through a sympathetic employee all strike the Tribunal as contrived. Third, the applicant’s own conduct – such as his return trips in Asia in 2014 and 2015, his other ongoing activities in Bangladesh, and (as noted above) the family’s delayed departure from Bangladesh after the visa grants - adds to the Tribunal’s doubts.
Given its view that the applicant has tailored his evidence on the go and that his claims lack credibility, the Tribunal is unable to determine his exact relationship with [Company name] now or in the recent past, including whether he ceased being a business partner in 2014 or 2015 (for instance, through a sale, a business dispute or through mutual agreement). However, it rejects his claim that his former business partner ousted him from the company, illegally and through threats of violence; that the underlying reason was political (targeting the applicant because of his BNP preference, or by [Mr M] using any clout through the AL); or that this caused the applicant to fear for his or his family’s safety.
Departure from Bangladesh
As discussed above, the Tribunal found the applicants’ explanations for their delayed departure from Bangladesh, after they obtained Australian visitor visas, unpersuasive. This amounts to strong evidence that they did not leave Bangladesh while subject to threats and fearing for their safety, but rather for unrelated reasons.
The applicant was guarded about his activities from August 2015 (when the visas were issued) to December 2015 (when they departed). His whereabouts are of particular concern if, as claimed, the police were actively pursuing him in relation to politically motivated false charges. The applicant wrote that he spent some time at his Dhaka address (implicitly, Gulshan), but ‘whenever [he] heard that the police were searching for [him, he] would hide at [his] country property [in Tangail].’[17] This was his mother’s address, which he also described as his ‘secret hiding address’. The applicant acknowledged that he had not provided the Tangail address as his postal address for the Australian visa applications, simply because he ‘would only hide out there from time to time’. In the Tribunal’s view, the applicant’s continued stays in Dhaka (Gulshan address), even intermittently, and his use of that as a postal address, indicate that he was not in hiding and the police were not pursuing him.
[17] The applicant’s supplementary statement of 14 June 2016 addressed this in detail, and there was discussion of it at hearing.
The Tribunal also put to the applicant[18] that, when lodging his visitor visa application in August 2015, he presented personal bank statements showing regular banking, including ATM visits, at least up to August 2015. This suggested he was not in hiding, from anyone. In response, the applicant wrote that he attended ATMs in Dhaka’s Gulshan area, where there are diplomatic representations and private armed guards. He suggested that there was less chance of AL cadres kidnapping him at these locations. He did not address his claim to have also been living in fear of arrest by the Bangladesh police, who could have taken enforcement action at any time. He also submitted bank statements from the period July 2015 to December 2017. Again, these show regular ATM withdrawals, right up to [December] 2015, just prior to the applicants’ departure for Australia. This reinforces the impression that he was not in hiding, from the Bangladesh authorities, AL cadres or anyone, at any time before his departure for Australia.
[18] At hearing, and in its s.424A letter.
The Tribunal accepts that persons fleeing persecution or significant harm may need to resort to fraud to secure their safe passage or, as the applicant suggested here, misrepresent some information. In the present case, however, the Tribunal has two concerns. First, given the extent of its concerns about the applicant’s credibility, it is not prepared to accept at face value that the applicant obtained [Company name]’s bank records through a third party. Second, the applicant’s delayed departure from Bangladesh becomes even more difficult to grasp if, as he implied, he relied on subterfuge to obtain the visitor visas.
Material on the public pages of the applicant’s [Social media] account, discussed at hearing and subject to the Tribunal’s s.424A letter, reinforces the Tribunal’s doubts.
§ This includes photographs and postings showing the applicants on holiday in [Country 6] and [Country 7] in 2014, and the applicant on his business trip to [Country 2] in mid-2015. In the Tribunal’s view, it makes no sense that the applicants publish photographs of themselves abroad, if (as claimed) they were fearful of the Bangladesh authorities detecting and detaining them every time they departed and re-entered the country.
§ Photographs of the third-named applicant at a school party in Dhaka [in] December 2015 further suggest that none of the applicants was hiding, or living in fear from the Bangladesh authorities, AL cadres or anyone.
At hearing, the applicant said that he posted photographs of his son on-line because his friends’ families had done likewise, and he wanted to keep his son happy. In his written comments/response to this information, the applicant wrote that he ‘only posted sporadically about his family and included several family holiday pictures’; he was careful to avoid posting political material; and, at that stage, he was not overly concerned about social media, as [Social media] was not yet popular in Bangladesh and the authorities were not yet monitoring its content as they are now. The Tribunal finds these comments unpersuasive. They fail to address why, if the Bangladeshi authorities were pursuing them and they were in hiding, they even risked publishing information about their movements abroad and in Bangladesh. Furthermore, the applicant failed to substantiate his claims about the limited use of social media in Bangladesh up to late 2015, and the authorities’ failure to monitor them. Finally, the Tribunal finds the applicant’s comment that he refrained from posting overtly political material on-line, to avoid the risk of harm, unconvincing, as it rejects the underlying premise that he had any political motivation to publish such material.

The Tribunal accepts that the applicant will continue to prefer the BNP if he returns to Bangladesh and, depending on his other commitments, he may associate with other BNP supporters or even make modest donations to the party (for instance, through any business that he sets up). However, the Tribunal does not accept that he has any intention to participate actively in politics on his return, for the reasons that follow:
§ First, it does not accept that he had any political profile in Bangladesh, prior to his departure.
§ Second, it does not accept that his modest contacts with BNP Australia will have motivated him to become engaged in politics if he returns to Bangladesh. It reaches this conclusion because it considers his main reason for associating with BNP Australia has been to gather support and evidence for his protection visa application, and his family’s future permanent residency. A secondary purpose may be to socialise with like-minded Bangladeshis in Australia. The Tribunal considers this to be a very different scenario from his priorities and prospects if he were to return to Dhaka.
§ Third, the Tribunal finds no other circumstances to suggest that the applicant will seek to become engaged in politics on his return to Bangladesh. Indeed, his recent absence from Bangladesh means that, even if he were interested (which the Tribunal finds he is not), he lacks the current contacts and local knowledge that would be necessary to gain any kind of political profile or influence.
While it accepts the applicant prefers the BNP, the Tribunal finds that he has not in the past and will not in the future be motivated to engage in political activities. The Tribunal accepts that his political preference may be known to some local people; and that he make associate the people who shares his political views, on his return to Bangladesh. However, the Tribunal finds nothing in the country information to suggest that the mere fact of having such a political preference or social/business contacts, gives rise to a real chance of being targeted by the Bangladesh authorities, AL activists or anyone.
Activities in Australia: The applicant has undertaken some activities with BNP Australia, including participation in meetings, public protests and that his name has appeared in some Bengali language media in Australia, on-line and in a Bengali language [newspaper], which he claims that his daughter obtained. The applicant and Mr [J] pointedly stated that the applicant’s activities could lead to reprisals if he returns to Bangladesh, because both his name and image appear.
The applicant relied in large part on Mr [J]’s evidence that the visiting Bangladeshi delegation took photographs of the Bangladeshis protesting Sheikh Hasina’s visit to Australia, and published articles; and that the applicant was clearly visible. He goes on to state that he is ‘now convinced he [the applicant] would suffer serious reprisals in the form of physical harm if returned to Bangladesh’. Mr [J] also claims, in broad terms, that ‘grass root leaders’ have false cases against them, and he is sure that the Bangladeshi authorities will view the applicant as having engaged in ‘anti-government sentiment’ in Sydney.
The Tribunal considers the applicant’s activities in Australia to have been occasional and marginal. It finds that the applicant and Mr [J] exaggerated this in a way calculated to bolster the applicant’s protection claims. It places minimal weight on his (nominal) inclusion in BNP Australia’s executive committee, as it seems that a high proportion (if not all) participants are offered this status. He has participated in some indoors activities, and perhaps some protests. The Tribunal accepts that his name has appeared in print, in some local and Bengali-language media. However, the name appears in long lists of participants, and no further personal details or his (claimed) position in BNP Australia are given.
DFAT summarised in its most recent report[21] (which the applicants submitted in full to the Tribunal) the ruling AL’s treatment of BNP and other opposition political groups, in the following terms:
DFAT assesses that under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges and travel bans. Active members of opposition political parties and auxiliary organisations (see following section) who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. This risk is elevated around times of heightened political tension, including elections. Ordinary members of opposition political parties and auxiliary organisations who do not engage in political activities and demonstrations face a low risk of arrest, although this may vary according to location and timing.
[21] Department of Foreign Affairs and Trade (DFAT) Country Information Report – Bangladesh, 2 February 2018
The Tribunal finds that the applicant has not in the past, and will not in the future, have any political profile that would be of adverse interest to the Bangladesh authorities. In relation to his activities in Australia, the Tribunal also notes that his involvement with BNP Australia and on-line has been limited. As discussed at hearing and addressed in post-hearing submissions, the fact that Mr [J], [an office bearer] of BNP Australia, returned to Bangladesh without incident also seems relevant. While the Tribunal appreciates that Mr [J] is an Australian passport holder, and it would not be appropriate to draw a direct parallel with the applicant’s situation, it also does not accept at face value Mr [J]’s account that the return trip was fraught with danger, or that he changed his return travel plans for safety reasons.
Finally, country information indicates that the Bangladesh authorities ‘may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh […]’[22]. However, the applicant does not have a high profile or indeed any adverse profile at all. He has provided no independent evidence to indicate that a mere association with an expatriate Bangladeshi social or political group; or attendance at a public protest; or publication of one’s name or image (without further personal identifiers or narrative about the person’s role) is of interest to the Bangladesh authorities, or would motivate them to inflict serious harm on an individual. There is a sizeable Bangladeshi community in Australia, and the BNP Australia is one of several groups that have existed for some time. The Tribunal expects that if the Bangladesh authorities were interested in and pursuing nationals who joined in such activities in Australia, there would be some documented instances of this, and indeed public concern. In sum, the Tribunal finds that there is no real chance of the applicant being subject to serious harm (persecution) at the hands of the Bangladesh authorities or AL cadres, on the basis of his limited political contacts in Australia, or the published references.
[22] DFAT Country Information Report – Bangladesh, 2 February 2018, paragraph 5.23
The Tribunal considers that the applicant may have drawn on personal experiences to some extent in his claims, for instance, in relation to a tough business environment, corruption and criminal activity (including instances of physical violence). He did not any base any refugee claims on these kinds of general problems. In any event, the Tribunal finds there is no real chance of the applicant or his family experiencing unfair business practices, corruption or criminal violence amounting to serious harm, for reason of the applicant’s political preference or any other reason set out in s.5J(1), if they return to Bangladesh.
The applicant claims to suffer psychological problems, such as anxiety, depression and memory loss. The focus of this has been to explain shortcomings in his evidence (for instance, inconsistencies or gaps); to support his claims of past harm; and to underscore his claim to fear harm on his return to Bangladesh. He has not claimed, and the Tribunal is not satisfied on the limited available material, that he has mental health problems that would require ongoing medical treatment if he returns to Bangladesh, or that could give rise to protection obligations.
The Tribunal has considered the applicants’ circumstances and prospects, individually and cumulatively, together with relevant country information. For the reasons set out above, it does not accept that if the applicant returns to Bangladesh now or in the foreseeable future that there is a real chance he will face serious harm amounting to persecution for reason of his political opinion (support for the BNP), as a businessman (if he decides to invest in or establish any business); or for any other reason set out in s.5J(1).
It is therefore not satisfied that he has a well-founded fear of persecution, for a s.5J(1) reason, now or in the reasonably foreseeable future: s.36(2)(a).
The applicant wife and applicant child
The applicant wife and applicant child essentially rely on their membership of the same family unit as the applicant. However, they also claimed to fear persecution on the basis of their imputed political opinion, arising from their relationship with the applicant. In the submission of 17 October 2018, the applicant wife also wrote: ‘in Bangladesh a wife has to live with the consequences of her husband’s conduct and political beliefs at a personal cost to the wife or their children.’ It is unclear whether this means that family members inevitably suffer – for instance, psychologically or through loss of a breadwinner – if the father is subject to persecution; or whether this means that the Bangladeshi authorities or others also inflict persecutory harm on other family members.
Given the findings of fact above, the Tribunal’s consideration of the applicants’ future conduct and relevant country information, the Tribunal finds there is no real chance of the second- or third-named applicant being subject to serious harm amounting to persecution, for any of the reasons in s.5J(1), now or in the reasonably foreseeable future.
In sum, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(a).
ASSESSMENT: COMPLEMENTARY PROTECTION
The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that one or more of the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh.
For the reasons set out above, the Tribunal accepts that the applicant husband favours the BNP, but does not accept that he was an activist, local leader or otherwise active. It also does not accept that the AL government, an AL-linked business partner or AL cadres targeted him, or had any adverse interest in him. In relation to his activities in Australia, taking into account his lack of a past adverse profile in Bangladesh, and the limited scope of his activities, the Tribunal also finds that the AL government has no adverse interest in him. The Tribunal also finds that the second- and third-named applicants are of no adverse interest to the government, AL cadres or others. The applicant’s claims also touched on more general problems in Bangladesh, such as criminality, corruption and an unruly business environment. He also raised concerns about his mental health. Based on the findings above, the Tribunal does not accept that these factors, considered cumulatively, give rise to a real risk of the applicant facing significant harm.
The Tribunal is not satisfied that the applicant’s circumstances – including the applicant husband’s limited support for and association with the BNP, any future links he may have with the BNP, or any business undertakings - give rise to a real risk that he will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as: - (a) to meet the definition of torture; or (b) to meet the definition of cruel or inhuman treatment or punishment; or (c) to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of his life or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to Bangladesh.
Based on the findings and analysis above, the Tribunal also finds that neither the second- nor the third-named applicant faces a real risk of significant harm if they return to Bangladesh.
Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Bangladesh, there is a real risk that any of them will suffer significant harm: s.36(2)(aa).
CONCLUSION
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
The Tribunal affirms the decision not to grant the applicants protection visas.
James Silva
Member

ATTACHMENT A – RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.
…

[2019] AATA 5415

18 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal