1609949 (Refugee)

1609949 (Refugee) [2018] AATA 4642 (8 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1609949
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Angela Cranston
DATE:8 October 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 08 October 2018 at 12:14pm

CATCHWORDS
REFUGEE – Protection visa – Bangladesh – political opinion – member of Jatiyatabadi Chatradal student wing – member of college of committee Chatradal – target of Awami activists – BNP supporter – victim of physical attack – delay in leaving country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 499

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 June 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Bangladesh, applied for the visa on 21 October 2015. The applicant stated as follows:
I completed secondary school certificate in [year]. After completion of SSC I was admitted into a college [which was] one of politically oriented college in the region for higher secondary certificate. In [year] I passed the HSC from the above college.
While I was at the above college, I was involved in student politics particularly with the Jatiyatabadi Chatradal, the student wing of the Bangladesh Nationalist party (BNP). In 2002 I became [office bearer] of the above college committee Chatradal.
In 2004 I was admitted into [university] for [a degree]. During my stay at this university I was involved as a member in Dhaka city [council] in 2006. In the meantime Begum Khaleda Zia resigned from power and transferred power to a caretaker government. The head of the caretaker government was president Iajuddin Ahmed. The Awami league and its ally did not consider this issue. This ally also protested against this caretaker government. Ultimately a serious chaos took place in Bangladesh. As a result a military backed caretaker government was installed in Bangladesh to constitute a parliamentary election.
As a result a parliamentary election was held in Bangladesh on 29 December 2008. In this election I worked for [Mr A], who was a candidate from BNP. Our main opponent was [Mr B], who was a candidate from the 14 party alliance.
During this election I worked from door to door in campaigning for [Mr A] and delivered my speeches in the public meeting and became a target of Awami activists. [In] December 2008 while I was returning home from Mirpur at 9 PM, I was attacked by a group of Awami goons and they beat me mercilessly and left me on the street. A number of roadside people took me to a local clinic. I still bear the mark at my forehead from this attack.
After this incident our party made a protest gatherings but police and RAB did not arrest any person in connection with this attack. However on 29 December 2008 the above election was held and our candidate did not win the election. [Mr B] won the election and his ally one two third majority seats in the parliament and formed the government of Bangladesh.
After formation of the 14 party alliance government led by the Awami League, the activists of the Awami league became adamant to take revenge on the leaders and activists of BNP. As a result many leaders and activists is in jail now and many of them are subject to numerous false cases.
I completed [another degree] from the [university] in 2009. Afterwards I returned to my home town and involved in politics and also became an employee of a [company].
In 2010 I became [an official] of [the] youth wing of the BNP. When I obtained this position I became one of the targets of the Awami cardres.
In August 2010 I was attacked by a group of Awami hooligans at our village along with my uncle, who is one of the [office bearer] of the BNP. I ran from there somehow but my uncle could not. As a result he was beaten by them mercilessly, a case was lodged against the Awami hoodlums at the court and later the court dismissed it, because the court was influenced by the Awami administration.
Day by day my situation became worse. In the meantime the Awami league became adamant to bypass main opposition in constituting a parliamentary election which was held on 5 January 2014. Before this election the BNP led coalition and tried to prevent this undemocratic election under Hasina government. The BNP led a movement demanding to continue the provision of caretaker government. I joined many processions against the Awami government. It was funniest election in the history of Bangladesh that more than half of the parliamentary seats won by the Awami league candidates without any contest in the election.
After this election my life became vulnerable and [date] January 2014 before election a group of Awami cardres found me at town in the evening. They beat me seriously and few of my relatives took me to a local clinic. I was treated there for a week and later I was released from that clinic. After this incident my family decided to send me abroad. As such I lodged an application for [temporary] visa to Australia. Somehow I managed police clearance certificate by bribing to an officer.
On 26 October 2014 I came to Australia. After my arrival I did not lodge the protection visa application as I was thinking in returning home. I thought political unrest will be cool. It is tragic the situation has emerged more serious in Bangladesh. A further national movement was emerged to observing the undemocratic country on 5 January 2015 led by Begum Zia. People from all walks of life tried to come out from home and joining the movement and my brother also attended this movement and became the target of regime and unable to return home town in scaring attacks from Awami hoodlums.
At this time in considering the current undemocratic and barbaric rule of the country if I am forced to return home I will be persecuted. My life will not be saved in Bangladesh. I am seeking status of refugee in accordance with United Nations Convention and in light of the above narrated circumstance.
The delegate refused the decision and the applicant applied for review.
The applicant appeared before the Tribunal on 7 September to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
Prior to hearing the applicant provided a submission that essentially repeated the applicant’s statement and provided general country information. It also provided a number of photos.
At hearing the applicant presented an additional number of photos and an Australian Bangladesh community newspaper dated [2018] that had a small photo of him on page [number]. The applicant confirmed that he had not participated in any other demonstrations. The applicant stated that the other photos were of him at BNP Australia meetings which he started attending in January 2016. These photos were similar to those submitted prior to hearing.
The applicant said to came to Australia on 26 October 2014 on a [temporary] visa that ceased on 26 October 2015, completed and applied for the protection visa application himself on 21 October 2015.
The applicant stated his last address before he came to Australia was his village [address] but he had also been in hiding since the 5 January 2014 election when he had stayed with relatives and would sometimes see his family at night.
The applicant stated he had parents [and siblings]. His parents and [a sibling] were in his village but his brother was hiding in Mirpur.
When asked if any of his family were political he stated his uncle was [an office bearer] of the union, his other uncle was political, his father was retired from [politics]. He also stated that his grandfather was political and an uncle was a BNP supporter. The Tribunal then asked why his brother was in hiding and he stated because he was involved in politics. The Tribunal asked why he had not mentioned that and he stated he forgot. The Tribunal also put to him that he had told the department that his father was [an official] of the union and he stated he used to be that but had forgotten.
The applicant stated he was political because he had been influenced by his family’s ideology. The Tribunal asked about that and he stated they used to do things for the benefit of the local area and people would listen. He also stated they represented the local people and could go through them if there was an issue. The Tribunal asked what they stood for and he stated for the benefit of the local people and area and to establish infrastructure such as hospitals, schools and social organisations. The Tribunal put to him that when the department had asked the same question he said they stood for nationalism, they wanted to improve the economy and make everyone self-sufficient. He agreed and the Tribunal asked what nationalism meant to him. He stated he understood it meant to build up unity amongst the nation and people and make them self-sufficient. The Tribunal asked what the BNP stood for and asked for their beliefs. He stated to bring the faith in the Almighty God, democracy, nationality, socialism and economic, social, equality and justice.
The applicant stated he was a BNP member. He then stated he was a student wing and youth wing member. When asked about the other BNP wings he stated there was the agricultural wing, the labour wing, and the people who make materials wing. The Tribunal put to him that it did not understand that was the case and he stated there was a voluntary wing. The Tribunal put to him that they also had the freedom fighters wing and the women’s wing and he agreed.
The applicant stated he joined the BNP student wing in 2000 to 2003 and the student wing [of a certain ward] from 2006 to 2008. He also stated that in 2010 he joined Jatiyatabadi Jubo Dal, the BNP youth wing and in order to join the student wing, someone had to be 16. The Tribunal put to him that it understood someone had to be 18 or over and that in 2000 he was not [age]. He stated he joined the youth wing because of his family.
The applicant stated he was first physically attacked when he was [age]. The Tribunal asked him about the attack in January 2014. He stated he had given a speech and was returning home on foot about 21.00 after a protest outside his [office]. He stated a group of 10-12 Awami league people attacked him, threatened him and said they were going to kill him. He stated he was arguing with them and they used a wooden stick, kicked and punched him and he fell. He stated there were some near-by shops, people (including his relatives) heard the argument and screaming and came to the rescue. He stated they hit him with the stick, he fell on the ground and lost his consciousness and when he regained his consciousness he saw his relatives.
When asked what his injuries were he stated there was no cut but they kicked him so hard there was internal bruising, he had serious pain and could not walk. It also affected his mental health. He also stated they kicked him on the back, he had back pain and his forehead had a little cut. When asked what treatment he received he stated he stayed in a private clinic for seven days and not in a government hospital because otherwise he would have been identified. He stated he had severe pain and was given painkillers and some injections but could remember nothing else. The Tribunal put to him that when the department had asked him that question he stated he was given physiotherapy. He agreed saying he had back pain and needed a massage. The Tribunal also put to him that he told the department that he had no major problem and he stated when they struck him with the wooden stick near his knees he had had difficulty standing and walking.
When asked why he was afraid that the government would identify him he stated there was a government network in the police station and hospitals and maybe they could catch him at the hospital. He also agreed that he was worried about the government at that stage and the Awami league activists. The applicant also stated that the attack in 2014 was why he came to Australia. The Tribunal put to him that it understood that his visa was granted on 18 June 2014 and that he did not come to Australia until 26 October 2014 and asked why. He stated he didn’t want to leave and his leaders thought there might be another election and there might be peace. He also stated he did not return to his village. He stated after that the leaders started getting kidnapped.
The applicant agreed that the Bangladeshi government had supported his Australian visa application but stated it was not support from a political party and that the Awami League did not have direct influence over the matter and the secretary was neutral. The Tribunal put to him that he had stated that he was too worried to attend a public hospital because he thought the government may find him but he wasn’t worried that the government had supported his visa application because he didn’t think the Awami League would find out. He stated he applied online.
The Tribunal talked about his Australian activities and the letter from [Mr B] that said he had known the applicant since the applicant joined the Bangladesh Nationalist Party Australia as a member in 2015. The Tribunal put to him that he joined in January 2016. He said that was when he started to attend meetings and that he had joined in December 2015. The Tribunal asked why this was the first time it had been mentioned it and he stated he had a lot of mental stress and could not remember everything. The Tribunal asked why the letter was dated July 2018 and he stated the letter was written when he had requested [Mr B] to do so. The Tribunal asked if the organisation was incorporated in Australia and he stated the overseas people who were BNP were involved with this group. The Tribunal put to him that it understood that there were a number of these groups in Australia and he agreed. The Tribunal also put to him that it understood that this organisation was not incorporated in New South Wales and had no Australian legal status. He stated did not know but they were political. The Tribunal put to him that the letter had suggested it was incorporated when there was evidence to suggest that it had not been incorporated. He said he had no idea.
The Tribunal asked who organised the demonstration and he stated the president of BNP Australia.
The Tribunal put to him that it needed to consider about whether he was a BNP member or supporter and the truth of his testimony. The Tribunal put to him that it had concerns, firstly he had said his brother was political but had forgotten to say that when asked who was political in his family and he had also forgotten his father’s position. He stated he had mentioned his father’s most recent position. The Tribunal put to him he had not mentioned the other wings of the BNP, and the Tribunal’s understanding was that he would have been too young to join the student wing of the BNP at [age]. The Tribunal also put to him that when the department had asked him what was his family’s ideology his answers were vague, that is he told them it was nationalism, they wanted to improve the economy and make everyone self-sufficient but when asked what was nationalism he stated it was on a national level to progress the country and take it forward. The Tribunal put to him that it may find that his answer was not consistent with someone who had been exposed to BNP ideology for a long time. The Tribunal also put to him that his account of the injuries he sustained after he was attacked in 2014 and his treatment may not be consistent with what he told the Department. He stated he was unconscious and he couldn’t remember the name of the medication he received. The Tribunal also put him that when he got his Australian visa he remained in Bangladesh for another four months which may not be consistent with someone who was fleeing Bangladesh because of the Awami league. He stated the instruction came from high level leaders that they were hoping that the country might have a fair election and they were asked not to leave. The Tribunal also put to him that it had information that suggested that the Bangladesh government had supported his Australian visa application which may not be consistent with his alleged fear. He stated there was the government and then there was the political party and the secretary was neutral.
The Tribunal put to him that it had to think about what he done in Australia but that if it found that it did not accept that he had been telling the truth then it may find that he had been doing his Australian activities for the purpose of the protection visa application and would disregard that activity for the purpose of considering if he was a refugee however it would still need to consider that activity in relation to significant harm. The Tribunal also put to him that the Department of Foreign Affairs and Trade had said that authorities may take an interest in high-profile individuals who had engaged in political activities outside Bangladesh but that may not be him. He stated the fieldworkers were the main activists. The Tribunal also put to him that it was concerned about the BNP Australia letter, that is he had provided it very late in the process, it said that he became a member in 2015 but he said he had only been attending since 2016. He stated he registered in 2015 and started his activities in January 2016 when he went to a meeting. The Tribunal put to him that he had been in Australia since 2014 and was not sure why he wouldn’t have joined earlier if he was part of the BNP in Bangladesh and this organisation represented the BNP in Australia. He stated he wasn’t aware of it. The Tribunal also put to him that this organisation purported to be incorporated but it was not incorporated in New South Wales. He stated he had no idea about that. The Tribunal put to him that this may be a group but may not be satisfied that it was anything else. He stated it was the BNP group.
The applicant then said that his family in Bangladesh were frightened and his brother was not in the country. He also stated the Awami League knew he wasn’t there and the Awami League was torturing BNP members.
Following the hearing, the Tribunal sent the following:
The particulars of the information are:
Your knowledge of BNP ideology
At the Departmental interview on 12 April 2016 the following conversation occurred:
Q. Why did you join the BNP?
A. I was influenced by seeing my father and my grandfather.
…
Q. Tell me about the BNP ideology and programs.
A. BNP believes in nationalism, and they also want to improve the economy, and
they also want to make everyone self-sufficient. That’s what they’re working
on and they want to also improve the agriculture.
Q. “BNP promotes nationalism.” Can you talk about what does nationalism mean
to you?
A. What I think is that is, at national level to progress the country and take it
forward.
Q.That’s on a national level but nationalism, do you understand?
A. I’m not understanding the question.
This is relevant because the Tribunal may find that at interview you did not display a
knowledge of nationalism and the BNP’s understanding of it (described on its
website as the Islamic consciousness of the people of Muslim majority Bangladesh
in order to counter the secular Awami League). This is relevant because the Tribunal may find your lack of knowledge is not consistent with your exposure to the BNP. If the
Tribunal find this, then subject to your comments it would affirm the decision under
review.
Your alleged wounds after being attacked in January 2014
At the Departmental interview on 12 April 2016 the following conversation occurred:
Q. And what happened to you?
A. I fell on the ground and I have some family members who are in the market.
These people took me to the clinic
Q. How many days were you in the clinic?
A. Maybe six or seven days.
Q. What was the diagnosis?
A. They didn’t find any major problem; they ran a few tests.
Q. Then why did you have to stay there for 6-7 days if there was no major
problem?
A. My family wanted me to have a proper treatment and at that time was election
time so they thought it would be safer for me to stay in the clinic then go
outside.
Q. What kind of treatment did you receive?
A. They gave me physiotherapy for my pain.
This is relevant because at the hearing you stated that they kicked you so hard
there was internal bruising and you had serious pain and could not walk at that
time. You also stated it affected your mental health and that they kicked you on the
back and you had back pain and your forehead had a little cut. When asked what
the treatment was you stated you were taken to a private hospital and not to the
government hospital because otherwise you would have been identified, and you
stayed in the clinic for seven days and had severe pain and were given painkillers
and some injections but nothing else that you could remember.
The Tribunal may find that your answers in relation to your injuries and treatment
have changed with each telling. If the Tribunal find that your answers have
changed, it would find you not credible and affirm the decision under review.
Your delay in leaving Bangladesh
Movement records indicate that you obtained your visa to come to Australia on 18
June 2014 but did not arrive until 21 October 2015. This is relevant because the
Tribunal may find that your delay in departing Bangladesh after you were granted
an Australian visa is not consistent with your evidence that you fled Bangladesh or
that you fear returning. If the Tribunal finds this then, subject to your comments, the
Tribunal would affirm the decision under review.
Bangladesh government support for your visa
Documents indicate that [Mr A] [nominated] you for your Australian [temporary] visa. This is relevant because the Tribunal may find that the Awami League
government’s support for your visa application is not consistent with your claims
that you were continuously targeted by the Awami League based on your political
profile or that you were taken to a private hospital and not to the government
hospital because otherwise you would have been identified.
If the Tribunal finds that your nomination is not consistent with your claims that you
were continuously targeted, then subject to your comments the Tribunal would
affirm the decision under review.
BNP Australia
A [State 1] Incorporated Association Register check states that the Bangladesh
Jatiotabadi Dal Australia’s registration was cancelled [in] October 2002.
This is relevant because the letter that you provided from the above organisation
states that it is incorporated. If the Tribunal finds that it is not incorporated, then the
Tribunal would find that the organisation has attempted to mislead the Tribunal in
relation to its legal status and is not credible. If the Tribunal finds that the
organisation is not credible then, subject to your comments, it would affirm the decision under review.

The applicant responded as follows:
knowledge of BNP ideology
I know BNP (Bangladesh Nationalist party) as I was influenced by my family members which includes my father, grandfather and paternal uncle. I have seen their political activity and belief of BNP ideology.
In the words of the founder of BNP Mr late president General Ziaur Rahman
the main objectives of the country have been, in the words of its founder, the economic development of the country, democratic advancement, national unity on the basis of Bangladeshi nationalism and generation of a spirit of self-reliance of the people.
I admit that I have quoted the words my four founders have used in their political campaign when promoting the ideology of BNP. I submit that I have the knowledge of the political ideology of BNP and its agendas.
In relation to the question the Tribunal now asks described on its website as the Islamic consciousness of the people of Muslim majority Bangladesh in order to counteract the secular Awami league, I say Bangladesh Awami league is the main opposition party for BNP in politics. The statement the Tribunal quoted (source unknown) may be a political comment but surely not the ideology of BNP.
The attack in January 2014
the followers of Bangladesh Awami league attack to be. It was a surprise attack on me and I suffered injuries. The narration of this attack may have varied in my oral evidence as I tend to forget this event from my life as I find it disturbing for my mental health, I submit that I have tried to give the best possible account of the attack and the narration may vary but the events did take place in my life. I suffered both physical injuries and mental trauma from this.
Delay in leaving Bangladesh
I submit that the movement records the department has put forward to me is not correct. My Visa was granted on the 18 June 2014 and I left for Australia on the 25 October 2014 and arrived in Australia on the 26 October 2014. I applied for the current Visa on the 21 October 2015.
I submit that upon the grant of the Visa I have waited for months in Bangladesh to make necessary arrangements for my departure. I have spoken with my senior leaders about departing Bangladesh and upon acknowledgement from them I departed Bangladesh.
Bangladesh government support for your Visa
I acknowledge that the additional [officer bearer] of Bangladesh government [Mr A] did endorse my nomination for the [temporary] Visa. I submit that the additional [office bearer] is an employee of the government and as an individual he may or may not have a political opinion. I do not know why and how he endorsed my nomination but I refuse to accept that the Awami league government endorsed my nomination.
BNP Australia
I have arrived in Australia in October 2014 and I joined the BNP in Australia in December 2015. I have joined BNP Australia as I have seen they have organised different political activities in Sydney. Based on their political activity I joined BNP Australia and have contributed to their funds to organise political programs. I have enclosed my membership application form for your reference. I have no knowledge why BNP Australia is not registered in Australia and how they are operating. The onus is on the Australian government to ensure that relevant organisations are properly registered to operate.

Country Information

According to the Bangladesh Nationalist Party face book page, accessed 27 September 2018
The Bangladesh Nationalist Party commonly referred to as the BNP, is the mainstream center-right political party in Bangladesh. It is currently the largest opposition party in the Jatiyo Sangshad, the Parliament of Bangladesh.

Founded in 1978 by Major General Ziaur Rahman, the Seventh President of Bangladesh, the party has evolved into one of the most powerful political entities in South Asia. The BNP was established by President Zia to provide a politica undefined l platform for him after his assumption of power during Bangladesh"s volatile period of martial law from 1975 till 1979. The BNP also accommodated not just his supporters, but also those traditionally opposed to its principal rival, the Awami League. Ideologically, the party has professed Bangladeshi nationalism, described as the Islamic consciousness of the people of Muslim majority Bangladesh, in order to counter the secular Awami League. The BNP has been opposed to communism and socialism since its inception and advocates vigorous free market policies.

The Bangladesh Nationalist Party has held power in Bangladesh for five separate terms. Amongst its leaders, four have become President of Bangladesh and two have become Prime Minister of Bangladesh. Within the party, power has remained exclusively in the hands of the Zia family, with Begum Khaleda Zia leading the party since the assassination of Ziaur Rahman, her husband and the party’s founder.
According to DFAT Country Information Report Bangladesh 2 February 2018 Key BNP auxiliary organisations include the Jatiyatabadi Chhatra Dal (student wing), the Jatiyatabadi Jubo Dal (youth wing), the Bangladesh Jatiyatabadi Mohila Dal (women’s wing), the Bangladesh Jatiyatabadi Krishak Dal (farmers’ wing), the Bangladesh Jatiyatabadi Muktijoddha Dal (freedom fighters’ wing), the Bangladesh Jatiyatabadi Sechchasebak Dal (volunteers’ wing), the Bangladesh Jatiyatabadi Samajik Sangskritik Sangstha (cultural wing), the Bangladesh Jatiyatabadi Sramik Dal (workers’/labour wing), the Bangladesh Jatiyatabadi Tanti Dal (weavers’ wing), the Bangladesh Jatiyatabadi Olama Dal (religious wing), and the Bangladesh Jatiyatabadi Matshayajibi Dal (fishermen’s wing).
According to an earlier DFAT Country Information Report Bangladesh 5 July 2016 , p.14 ‘senior BNP members appoint JCD members, who must be over the age of 18’. (Jatiotabadi Chatra Dal also known as J.C.D, is the student wing of the Bangladesh Nationalist Party (BNP).
According to DFAT Country Information Report Bangladesh 2 February 2018:
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.
According to the [State 1] Incorporated Associations Register, a search of the registration number Y2261145 indicates that the Bangladesh Jatiotabadidhal (Bangladesh Nationalist/National Party) BNP Incorporated was deregistered. accessed 8 October 2018.

CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five convention reasons and if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In his protection visa application, the applicant stated that he was involved in Jatiyatabadi Chatradal (the student wing of the BNP), in 2002 became [an office bearer] of the college committee Chatradal and was involved as a member in Dhaka city [council] in 2006, that he worked for [Mr A] in the [December] 2008 election and that [in date] December 2008 while returning home from Mirpur at 9pm was attacked by Awami goons who beat him mercilessly and left him on the street. He also stated that in 2010 he became [an official] of the Jatiyatabadi Jubodal of [a] district, the youth wing of the BNP, that in August 2010 he was attacked by Awami hooligans at his village along with his uncle who was beaten mercilessly, that before the [January] 2014 election, a group of Awami cadres found him at town and beat him seriously and after this, his family decided to send him abroad.
The Tribunal has concerns about this evidence. Firstly, and as put to the applicant at hearing, the applicant’s testimony at hearing was that he joined the student wing aged [age] however country information suggests that a person must be 18 years or above to become a member of the student wing of the BNP. When this was put to the applicant at hearing, he stated that it was his family’s influence enabled him to join at [age]. While the Tribunal has considered this, the Tribunal also considers that the applicant had difficulty naming the members in his family that were allegedly political, that is at hearing he stated that his brother was in hiding (because of politics) but then failed to mention him when asked who in his family was political because he said he forgot. In addition, when asked about the BNP ideology at departmental interview, he stated that the BNP believed in nationalism but then failed to explain what nationalism meant, that is he stated it meant at the national level, to progress the country and take it forward. When the Tribunal put to him in writing that his answers at departmental interview were not consistent with the BNP’s understanding of it as described on its website (that is as the Islamic consciousness of the people of Muslim majority Bangladesh in order to counter the secular Awami League), the applicant quoted the words of the founder of the BNP and stated that he did have knowledge of BNP political ideology and suggested that the statement the Tribunal quoted was a political comment and not BNP ideology.
The Tribunal accepts that it inaccurately referenced the BNP’s website as opposed to its [social media]. However, the Tribunal also finds that the applicant did not display at departmental interview knowledge of nationalism and the BNP’s understanding of it as described on its [social media] page that is consistent with his alleged exposure to the BNP.
In addition, the Tribunal finds that the applicant’s answers in relation to his injuries and treatment after alleged attacks has changed with each telling, that is the Tribunal finds that at the Departmental interview on 12 April 2016 the applicant stated that after being attacked in January 2014, he fell to the ground and was in the clinic for maybe six or seven days, that there was no major problem and he was there for six or seven days because his family wanted him to have proper treatment and remain there during the election and that they gave him physiotherapy for his pain but at hearing he stated they kicked him so hard there was internal bruising, serious pain and he could not walk. He also stated it affected his mental health, they kicked him on the back and he had back pain and his forehead had a little cut. He also stated that he had severe pain and was given painkillers and injections but nothing else that he could remember. While the applicant has stated that his evidence may vary because he has tried to forget this event, the Tribunal finds that if the applicant had suffered serious pain such that he had internal bruising, back pain and could not walk then that would be something he could have consistently stated. The Tribunal's overall impression of this evidence is that the applicant is not recalling an attack that has actually happened. Adding to this impression is the fact that even though the applicant confirmed that the 2014 attack was the reason he came to Australia, his Australian visa was granted on 18 June 2014 and he did not arrive in Australia until 26 October 2014 which was over 4 months later. When asked about the delay at hearing, the applicant stated that he didn’t want to leave and his leaders thought there might be another election and there might be peace. He also stated that he did not return to his village and that later, BNP leaders started getting kidnapped. Post hearing he stated that he waited to make the necessary arrangements for his departure and also spoke with his senior leaders and upon their acknowledgement, departed Bangladesh. While the Tribunal has considered this and accepts that he waited four months (as identified in the Department’s decision and as discussed with the applicant at hearing but incorrectly identified in its 424A letter as October 2015) it also considers that the applicant’s delay in departing Bangladesh four months after his Australian visa was granted casts doubt upon the truth of his claim that as a result of the attack in 2014 he came to Australia. In addition, the Tribunal finds that the applicant’s Australian visa application was supported by the very government that he allegedly fears, that is [Mr A], [Government department], nominated him for his Australian [temporary] visa. When this was put to the applicant for comment, he stated that the Awami League didn’t have direct influence over the matter and the [office bearer] was neutral, however [Mr A] is clearly a member of the current Awami League government. While the Tribunal has considered the applicant’s response, it has also considered the applicant’s evidence which was that he was too frightened to go to a public hospital because he thought the government may find him. The Tribunal finds that it is nonsense to suggest that the applicant needed to avoid a public hospital because he could be found by the government but then have that same government nominate him for his Australian [temporary] visa.
For all of the reasons above, the Tribunal does not find the applicant a reliable witness and does not accept that the applicant or his family are members/supporters or are/were office holders of the BNP, or that he joined the student or youth wing of the BNP or held any student or youth wing office or joined in any processions against the Awami government. The Tribunal does not accept that he worked for the BNP candidate [Mr A] or that he was attacked as a result of campaigning or made a protest gathering, or that he was again attacked at any other time thereafter or lodged a court case or came to Australia because of any said attack. Neither does the Tribunal accept any of his family have been attacked or are in hiding. In reaching these conclusions the Tribunal has considered a letter dated [in] July 2018 from Bangladesh Jatiotabadi Dal Australia that states that [Mr B] of Bangladesh Nationalist Party (BNP) Australia has known the applicant since 2015 and that the applicant advised [Mr B] that he was involved in the political activities of the BNP student party and youth wing. Given that [Mr B’s] endorsement is based on what the applicant has told him about his political activity in Bangladesh, the Tribunal is not persuaded to give this letter any weight.
The Tribunal has also considered that letter in relation to the applicant’s alleged political activities in Australia. This letter states that [Mr B] of Bangladesh Nationalist Party (BNP) Australia has known the applicant since 2015 when he joined the Bangladesh Nationalist Party Australia as a member. The Tribunal has a number of concerns with this evidence. Firstly, the applicant arrived in Australia in October 2014 and the letter states that the applicant joined the BNP Australia in 2015. After the hearing, the applicant also submitted an application for membership dated December 2015, however the letter itself from the Bangladesh Nationalist Party (BNP) Australia is dated [in] July 2018 and has been lodged at a very late stage of the protection visa application process. When the applicant’s delay in joining this group was put to the applicant at hearing, he stated that he wasn’t aware of the organisation. Secondly, the applicant conceded that there are other groups in Australia purporting to be associated with the BNP in Bangladesh. In addition, and despite raising the issue at hearing, there is no evidence before the Tribunal other than the applicant’s evidence and the letterhead that suggests that this group is endorsed by the BNP in Bangladesh.
In addition, the Tribunal has concerns about this organisation. Firstly it has held out to the Tribunal via its letterhead that it is registered however as explained to the applicant at hearing, evidence before the Tribunal indicates that the organisation’s registration with the [State 1] Incorporated Associated Register was deregistered. The Tribunal has concerns about the credibility of an organisation that purports to be registered when evidence suggests it is not. When this was put to the applicant, he stated that he had no knowledge why the organisation was not registered in Australia and that the onus was on the Australian government to ensure that relevant organisations were properly registered to operate.

On the basis of the [State 1] Incorporated Associations Register that states the organisation’s registration was deregistered, the Tribunal has concerns that the organisation has attempted to mislead it in relation to its legal status.
The Tribunal’s overall impression of this group is that although it is a social group, it is not officially affiliated with the BNP Bangladesh. In addition, the Tribunal’s overall impression of the applicant’s interaction with this group is that he given it funds, has participated in a demonstration [in] April 2018 and meetings for the purposes of strengthening his protection visa claims. The Tribunal finds that the applicant has participated in this activity in Australia for the purpose of strengthening his claim to be a refugee. Accordingly, the Tribunal will disregard this conduct in accordance with 91R(3) of the Act which requires that in determining whether a person has a well-founded fear of being persecuted for one or more of the refugee reasons, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Tribunal that he engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee.The Tribunal is not satisfied that the applicant participated in this group in Australia for any purpose otherwise than for the purpose of strengthening his claim to be a refugee. Accordingly, the Tribunal will disregard the applicant's involvement with this group in Australia in relation to his refugee claim.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
The Tribunal has found that it does not accept that the applicant is a reliable witness and does not accept that the applicant or his family are BNP supporters or members, or that he joined the student or youth wing of the BNP or held any student or youth wing office or that he has suffered any harm as a result. While the Tribunal accepts that he has participated in a demonstration [in] April 2018 and has attended meetings held by a group calling itself BNP Australia, advice from DFAT suggests that senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges and travel bans and that active members of opposition political parties, 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. Given this advice, and given that the Tribunal does not accept that the applicant is a BNP member or a genuine BNP follower, the Tribunal does not accept that the applicant’s one off participation in a demonstration [or] even his giving funds or participation in meetings with this Australian group means that there is a real risk he will face significant harm if he returns to Bangladesh. While the Tribunal has also considered the photo in the Australian Bangladesh community newspaper, the Tribunal does not accept that the applicant can be identified from this photo or that the Bangladeshi authorities will know that he has participated in such a demonstration. That is because the photo is on page [number], appears amongst 12 separate photos and is very small and the applicant cannot be easily discerned. Even if they do know, given the DFAT advice and given that the Tribunal does not accept that the applicant is a BNP member or a genuine BNP follower, the Tribunal does not accept that the applicant’s one off participation in a demonstration [means] that he will face significant harm if he returns to Bangladesh. Given that the Tribunal is not satisfied that the applicant is a genuine BNP support, neither does the Tribunal accept that the applicant will be political in the future. In these circumstances, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

The Tribunal affirms the decision not to grant the applicant a protection visa.

Angela Cranston
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:

(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
receiving country, in relation to a non-citizen, means:

(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5J Meaning of well-founded fear of persecution

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.
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.
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.
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.
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.
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

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.
A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2018] AATA 4642

8 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction