1610755 (Refugee)

[2019] AATA 198

1610755 (Refugee) [2019] AATA 198 (11 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610755

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:Paul Millar

DATE:11 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 January 2019 at 7:56pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – imputed political opinion –  family member’s involvement with the BNP – social media activity – attended protests – genuine fear of harm – work in another country – trips to Bangladesh – credibility issues – decision under review affirmed

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 June 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).  The applicant, who the Tribunal finds to be a citizen of Bangladesh, applied for the visa on 23 December 2015.[1]  The applicant appeared before the Tribunal on 25 September 2018 to give evidence and present arguments in relation to the issues arising in the review.  The hearing was conducted with the assistance of a Bengali speaking interpreter.  The Tribunal also received oral evidence from three witnesses.  The applicant and the witnesses elected to give their evidence in English, only using the interpreter when they thought that was necessary. The applicant was represented in relation to the review by his registered migration agent. The representative attended the hearing.

   [1] The Tribunal's finding on citizenship is based on copies of pages from the applicant's Bangladesh passport at folios 1-23 of the Department file.

   RELEVANT LAW

2. 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.

3. 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.

4. 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).

5. 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.

6. 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).

7. 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   FINDINGS

8. For the following reasons, the Tribunal concludes that the decision under review should be affirmed.  According to his evidence to the Department and the Tribunal, the applicant claims protection on the ground that he supports the Bangladesh Nationalist Party (‘BNP’).[2]  The following is a recitation of the evidence given by the applicant at the Tribunal hearing.

   Evidence about the applicant’s family’s link to the BNP

   [2] The applicant’s evidence to the Department and Tribunal comprises the contents of the protection visa application forms; the applicant’s written statement lodged with that application; his evidence at his interview with the delegate for which there is an audio recording on the Department file and to which the Tribunal has listened; his statutory declaration made on 15 October 2018 and his evidence at the Tribunal hearing.  The Tribunal had access to the Department file relating to the application made by the applicant for a visitor visa.  The information on this file was not relevant to the grounds on which this has been determined.

9. The applicant’s father was elected many times as a member of the union parishad and once held the position of acting chair.  His father ceased being politically active ten years ago and therefore in 2008.  When asked if his father ever had trouble with the Awami League when he was politically active, the applicant said that there was some conflict in 1998 on the street and his father got arrested.  He said that this happened before 2000 and after that year his father did not have any trouble with the Awami League.

10. The applicant’s [brother] also undertook activities for the BNP over the period from 1996 until 2006 being the president of a branch of the party’s student wing and acting secretary of another branch of the party’s student wing.  When asked what difficulties his brother had for being politically active, the applicant said that at college his brother was attacked twice.  In 1998 while holding the position of acting secretary he was attacked once.  Then, at the end of 2005 or the beginning of 2006 his brother was twice attacked on the street near the family home where political people gathered.  His brother was never arrested.

11. In 2006 the applicant’s brother left Bangladesh and went to [Country 1] because of his political activities.  The Tribunal asked the applicant why his brother left Bangladesh in 2006.  In response, the applicant said that his brother was an activist and the caretaker government, in charge at the time, arrested many people and a lot of activists were attacked and escaped. When asked if his brother ever returned to Bangladesh, the applicant said that he returned once in ‘2013 or 2014’ when their mother was sick.  The family wanted her to travel to [Country 2] but her health was so poor she had to stay in Bangladesh. For that reason, the applicant’s brother came to Bangladesh by road from [Country 2] to see his mother and then returned to [Country 1].

12. The applicant’s [other] brother was president of the student wing for a union parishad from 2013 until 2015.  His [other] brother ceased his activities because he was attacked by the Awami League in a political gathering.  He left politics and now lives and works in Dhaka in an occupation in the same profession as the applicant.

    Evidence about the applicant in Bangladesh prior to 2011

13. In 2000 the applicant attended [an educational institution].  While there, he was approached by the student wing of the Awami League who asked him to join that party.  The applicant refused their requests due to his family’s support for the BNP.  Consequently, on two occasions, they beat the applicant with rods. In 2001 the applicant joined the student wing of the BNP.  During elections held that year, the applicant supported the campaign of a BNP candidate.  In 2003, the applicant became vice president of the student wing at his [educational institution].  In 2005, the applicant joined the student wing of the party for a different area of the city.  In this period he took part in meetings and rallies to motivate students to support the party.  He undertook these activities over the period from 2005 until 2008.  He referred to the caretaker government being in power at the time.

14. The Tribunal asked the applicant whether people from the party were being arrested in this period between 2005 and 2008.  In response, the applicant said ‘yes, massively’ but not him.  The Tribunal asked the applicant why he himself was not arrested given, according to his evidence, he was undertaking activities in this period.  In response, the applicant said that those arrested were people who had cases against them. The Tribunal asked the applicant why there was no case against him.  In response, the applicant referred to those involved with clashes with other groups.  He said that under the caretaker government, people from the different parties were also tendering to get government work and would clash with each other over that.  He said that he was not involved with that because it was about money not politics.  The applicant said that he liked politics but not just for his own personal gain.

15. In 2008, the applicant went to live and work in [Country 3].  When asked why he went to [Country 3] in 2008, the applicant said that he had work there and at the same time he was frightened for his safety.  When asked why he was frightened, the applicant said that lots of things were happening at that time and people were getting arrested.  He was afraid that he could be arrested because he had been undertaking political activities. During elections held that year, the applicant made financial donations to the party from [Country 3]. 

16. In July 2009, he returned to Bangladesh.    When asked why he returned, the applicant said that he did not like [Country 3].  He said that political colleagues and other party members in Bangladesh said that the situation there was not that bad even though the Awami League were in power.  He found work in his chosen profession on return.  He also resumed his political activities. He joined the ‘Jubo Dal’ of the party.  When asked what his activities were, the applicant said that he had communications with political leaders but otherwise ‘not much’.  When asked to describe his communications, the applicant said that he would go and meet leaders but he did not go in any protests or processions. To meet the leaders he would just talk on the phone or he would go to the party office once a fortnight or once or twice each week.

    Evidence about living in [Country 4] and undertaking political activities

17. In 2011 the applicant went to live in [Country 4] where he found work in his chosen profession.  He eventually left this employment in May 2014 because he received a better offer from another company.   When asked why he went to live in [Country 4] in 2011, the applicant said that he wanted to find work and build a career rather than stay in Bangladesh where he had fears.  The Tribunal asked the applicant whether, when he left Bangladesh for [Country 4] in 2011 he was afraid of being harmed. In response, the applicant said that he did fear that something could happen because the Awami League was attacking people in 2013 and 2014.  The Tribunal asked the applicant why he did not wish to remain in his employment in Dhaka and instead go to [Country 4] in 2011.  In response, the applicant said that he left Bangladesh at that time because he was afraid of the Awami League government. He applied for a position and received it. He thought that it would be better to build a career in his chosen profession rather than live in fear in Bangladesh.

18. In [Country 4], in 2012, the applicant approached others to form a Jubo Dal of the party in [Country 4] (‘the [Country 4] branch’).  Certain party leaders assisted him with this.  As a result he became the ‘second joint convener’ of the branch in May 2011.  In August 2011 he became the senior joint secretary of the branch.   In [Country 4] the applicant organised meetings and gave speeches against the Awami League.  Because of his work, the Jubo Dal Central committee in Bangladesh appointed him as a member in 2012.  The [Country 4] branch met every two or three weeks as well as for anniversary commemorations. They met in a hotel room and as many as 200 to 250 people attended. When asked what other activities he performed, the applicant said that there was a restaurant where Bangladeshi’s would meet and they would talk about the party.  In addition, they went in protests in [Country 4].  Also, while living in [Country 4], from 2013, the applicant began making anti-government comments on a social media website, mostly in Bengali. 

19. To the Tribunal, the applicant said that from 2011 he travelled back to Bangladesh a number of times.[3]  He said that he did this to see family and meet with political colleagues.  On these trips, the applicant usually stayed for four days during which time he would give the party a call and have a chat, including going to a party office.  He thought that his longest trip back to Bangladesh was for approximately ten days.  When asked why these return trips were brief, the applicant said that it was because of his employment commitments in [Country 4]. The Tribunal asked the applicant whether there was any other reason that he never stayed any longer in Bangladesh.  The applicant said that it was not comfortable for him to stay longer because of his political involvement.  He said that he was an activist in [Country 4] and the Awami League could come and ask him for money. 

    [3] Pages from his Bangladesh passport indicate that he left Bangladesh on [date] January 2011 and arrived in [Country 4] on the same day; he arrived in Bangladesh on [date] June 2011 and departed on [date] June 2011; he arrived in Bangladesh on [date] September 2012 and departed on [date] September 2012; he arrived in Bangladesh on [date] February 2013 and departed on [date] February 2013; he arrived in Bangladesh on [date] January 2014 (with no departure stamp on any of the pages of his passport made available) and he arrived in Bangladesh on [date] December 2014 and departed on [date] January 2015 (See folios 157 – 158 of the Tribunal file and folio 9 of the Department file).

20. The Tribunal asked the applicant whether he ever had difficulties with the Awami League or anybody else on these return trips.  The applicant said that he did not have any difficulties when he went back to Bangladesh, the only exception being the occasion he returned in December 2014 (discussed below).  The Tribunal put to the applicant that in 2011, when he went to live in [Country 4], he had been undertaking political activities opposed to the government knowing that doing so placed his safety at risk in Bangladesh and yet he returned there a number of times from 2011. The Tribunal asked the applicant why he was willing to risk his safety by making those return visits.  In response, the applicant said that, initially, the risk to him was not much.  It increased day by day and increased after the events of December 2014.  When asked why he said that initially the risk to his safety was ‘not much’, the applicant said that his activities increased and he had not previously been involved in helping people with the large amount of money he collected for the meeting of December 2014.

    Evidence about the events of December 2014

21. Following the elections in Bangladesh in late 2014, the Awami League attacked and imprisoned BNP leaders and supporters.  The applicant, through the [Country 4] branch, raised two million taka to assist the families of those people.  To distribute the money the [Country 4] branch and the party organised a meeting to be held [in] December 2014 at a [location] in Dhaka to expose the harm done by the Awami League.   When asked why they chose this particular [location] as a venue, the applicant said that all media were there and the Secretary-General of the BNP was to be there. They would be able to show how the Awami league oppressed the people. The applicant said that the family members of those who had been arrested or jailed had been told to go to the meeting and they could collect their money. The event had been publicised throughout the world.  The applicant told the Tribunal that, on this occasion, he was planning to stay two weeks to be able to see family and meet with political leaders.

22. When asked if he perceived any danger for him in undertaking political activities in [Country 4] the applicant said that he did not feel a danger in [Country 4] itself.  The Tribunal asked the applicant whether, on his arrival back in Bangladesh in December 2014, he was afraid that he could be arrested because of his activities in [Country 4].  In response, the applicant said that there was no danger to him in [Country 4] itself.  He did have a fear in returning to Bangladesh but also believed that if he was to be arrested the party would alert him and he could escape.  He was afraid that he would have a problem but he had a strong desire to participate in the party.

23. When asked if he was not afraid that the police would come and arrest everyone at the meeting, the applicant said that he did have that fear but also thought that they would be ‘tipped off’ if the police were to come.  The Tribunal asked the applicant whether he thought that he was taking a risk by attending this meeting and he said he agreed with that but he was not worried as he believed they would all be warned and have the opportunity to hide and get leaders to help them.  He said that in [Country 4] they were told that if the police were coming there would be a signal and they should just run away.  They did not ask the leaders how they would manage to get out of Bangladesh if the authorities were pursuing them, but, they believed that it could be done through payment of a bribe.

24. On the day in question the meeting began at 10 am and there were lots of people there including the party Secretary-General.  Proceedings commenced at 12 noon with speeches made by special guests and then the applicant gave the donations he had collected to the Secretary-General and that person gave the money to the affected families.  The applicant was on a stage for that.  At approximately 2 pm the senior leaders said that the police were coming to make arrests and everybody should run away.  The police would come because, in effect, the gathering was a protest against the government.  The applicant escaped and hid himself until returning to [Country 4].  In this respect, he said that he went to a friend’s house in Dhaka and just remained there until going back to [Country 4].  He remained in Bangladesh until [date] January waiting for the leaders to tell them the best time to flee.

    Evidence about events from January 2015

1. [In] January 2015 the applicant returned to [Country 4].  To the Tribunal, the applicant said that he never returned to Bangladesh after this, because he believed that, if he did, he would be abducted, arrested and the victim of false cases.  When asked why that would happen to him, the applicant said that [in] January 2015 the police arrested the Secretary-General and jailed him for six months.  He said that he had raised a large amount of money for the families of those who had been harmed by the Awami League as mentioned above. He had been protesting against the Awami League’s activities.  On his release, the Secretary-General came to [Country 4] for treatment.  It was the applicant’s responsibility to get him to a doctor and hospital and find suitable accommodation. In August 2015 the applicant became the acting secretary of the [Country 4] branch.  In 2015 he continued to make anti-government comments on a social media website.

2. The Tribunal asked the applicant why he would undertake political activities in [Country 4] if he was afraid to return to Bangladesh from late 2014.  In response, the applicant said that he was outspoken when he saw injustice.  The Tribunal asked the applicant why in that case he would not actually stay in Bangladesh if his convictions were so strong.  In response, the applicant said that he could have stayed in Bangladesh but he feared for his life.  If he was in Bangladesh he would not be able to talk or write his thoughts. He said that it would be too risky for him to be there.  On 30 September 2015 the applicant applied for a visa to visit Australia.  On 15 October 2015 the visa was granted.  His employer subsequently advised him that his employment contract would not be renewed and then the applicant came to Australia on [date] November 2015 seeking to remain here to avoid having to return to Bangladesh.

   Evidence about events from November 2015 and the applicant’s arrival in Australia

3. After he arrived in Australia the applicant joined the BNP party here.  He said that usually around [a number of] people attend gatherings of the party in Australia.  Since his arrival in Australia, the applicant has continued to make anti-government comments on a social media website.  When asked if he perceived that making these online statements endangered his life in Bangladesh, the applicant said that was correct. He said that under the ‘ICT Act’ people got arrested for doing this.  The Tribunal put to the applicant that he had been undertaking these activities in [Country 4] and in Australia, countries in which he did not have the right to reside permanently.  The Tribunal asked the applicant why, in those circumstances and knowing these activities put him at risk in Bangladesh, he would actually undertake such activities.  In response, the applicant again said that he had to raise his voice about injustice.

4. The applicant has made speeches and participated in protests in Australia for the BNP. He thought that he had taken part in about five or seven protests.  It depended on what was happening. In August 2016 he participated in a protest outside [particular landmarks].  In 2017 a Bangladesh government minister visited Australia and he took part in a protest against that person.  He said that in June 2017 there was a council of the party and he was elected as an [official].  He recalled that in February 2018 when the BNP leader in Bangladesh was arrested by the government he and others gathered at the place where the party in Australia meets, they held a protest on the street and they burned photographs of the leader of the Bangladesh government and her father.  He said that an online Bangla television station reported a meeting of the Awami League held in response to the burning of the photographs in Australia, the applicant saying that the party in [Country 5] also burned photographs of the Bangladesh government.  At this meeting it was said that the people involved in this type of protest would be punished.

   Evidence of [(‘witness 1’)]

5. Witness 1 said he that he had been [a former official] of the BNP in Australia but at the present time he was [in another role]. He said that the party had [number] members in Australia.  The party in Australia held meetings either once per month or every second month and also to commemorate special events.  Witness 1 said that he first met the applicant in 2013 in [Country 4] when he went there for a visit. He said that the applicant made a good speech at a party meeting. He said that he had attended the meeting as the leader of the party in Australia and the leader of the party from Bangladesh also attended.

6. Witness 1 said that since the applicant’s arrival in Australia he had been actively involved with the party here. He was an [official] for the party and he also undertook community work and was [an official] for a Bangladeshi association that undertook community work.  When asked what else he wanted to say about the applicant given he had already provided a written statement (which is recorded further below), witness 1 said that he wanted the applicant to be able to stay in Australia because he was young, because of his activities and social work which helped people.  He thought that the applicant would be a future leader who had speaking power, capacity and education.

7. Witness 1 said that approximately two weeks before the hearing he had returned from a trip to Bangladesh.  He said that he was in Bangladesh for approximately four weeks.  He had previously returned there in January 2018.  He said that he usually returns to Bangladesh every year but in recent times he went a bit less because it was risky to go there due to his work for the party.  When asked if he had any trouble with the government or anyone else on these return trips to Bangladesh, witness 1 said that he faced a ‘little bit trouble’ but he went quietly, he hid himself and never had trouble of any kind including being arrested.

   Evidence of [(‘witness 2’)]

8. Witness 2 said that he was a senior member of the BNP in Australia and previously [an official].  He had been involved with the party here for 11 years participating in all sorts of programs.  The Tribunal asked witness 2 what he could say about the applicant’s activities for the party.  In response, witness 2 said that he first met the applicant in 2016 at a party program at which the applicant gave a good speech.  They became close and discussed the applicant’s ‘matter’.  The Tribunal asked witness 2 for his impression of the applicant as a party activist.  In response, he said that the applicant was from the grass roots level meaning people who were involved in student politics as he had been. He said that this was the starting level for people to undertake political activities.  They both worked in the same profession. 

9. He recalled that when the leader of the Bangladesh government came to Australia the applicant participated in a demonstration with other party members.  He thought that the applicant had potential for Australia because he had done good work. He had very close relations to people in Bangladesh and if he returned he would suffer as witness 2 had suffered because of his connections to high-profile leaders.  Witness 2 said that he had been back to Bangladesh in 2007 but not since then because there was a case against him.

   Evidence of [(‘witness 3’)]

10. Witness 3 said that he had formerly been [an official] of the party in Australia but was now [in another position] (at the same time saying that he was a [certain official]).  In terms of the party hierarchy, he said that beneath the rank of vice president were the positions of general secretary, assistant general secretary, treasurer and then organising secretary. Beneath those positions there were different secretarial positions.  The Tribunal asked witness 3 about his impressions of the applicant as a political activist.  In response, witness 3 said that the applicant was a good worker who came to meetings, attended party functions and organised party functions.  He said that the applicant was helpful to the party.  He then said that the applicant was young, interested in the party, organised for the party and participated in programs and festivals. He assisted it to run a school with students and was generally helpful to the community.

11. Witness 3 said that he had travelled back to Bangladesh from Australia.  The last occasion he returned to Bangladesh was on 16 August 2018.  He said that he would travel back to Bangladesh once every two or three years. Since 2015, when he was [an official] of the BNP in Australia, he had returned to Bangladesh two or three times.  When asked if he ever had difficulties with the Bangladesh government or anyone else on these trips back to Bangladesh, witness 3 said that he did not have any difficulties.  He said that when he returned to Bangladesh he did not undertake political work and went to see family.  He said that he always had a fear when he was there that he would have trouble with the police if he got involved with the party so he avoided doing that.

    Documentary evidence submitted by the applicant

12. The applicant submitted to the Department and the Tribunal letters from members of the BNP describing his activities in Bangladesh, [Country 4] and Australia.[4] This includes two letters from a person named as Secretary-General of the BNP.[5] The statements contained in these documents about the applicant’s activities are consistent with the account that the applicant gave the Tribunal about his activities in those countries.  The tenor of this evidence is that the applicant is a committed a party activist who is a potential future party leader and, on those grounds, would suffer serious harm in Bangladesh.

    [4] See folios 71 – 74 of the Department file and folios 50, 51, 57, 131, 148 of the Tribunal file.  Folios 50, 57 and 148 are letters from the three witnesses who gave evidence at the hearing.

    [5] See folios 19, 48 and 167 of the Tribunal file.

13. To the Tribunal, the applicant also submitted photographs showing him undertaking activities for the party in [Country 4] and in Australia including photographs of him taken together with senior party leaders.[6]  The applicant also submitted to the Tribunal various documents that could best be described as media reports about the activities of the [Country 4] branch including reference to the applicant and with respect to the activities of the BNP in Australia also with some reference to the applicant.[7]  The applicant submitted documents relating to his online anti-government comments made when he was in [Country 4] and also in Australia.[8]  The applicant also submitted a number of disks, his representative describing it as containing ‘the applicant’s political activities in Australia’ with no further explanation.[9]

    [6] See folios 53-73 of the Tribunal file.

    [7] See folios 130, 133 – 137, 145, 180, 182 of the Tribunal file.

    [8] See folios 101-127, 183-186, 190-191 of the Tribunal file.  Also included at folios 128-129, 178 of the Tribunal file are what are said to be the applicant’s ‘writing’ which appears to have been in a media publication.  Also included are petitions critical of the Bangladesh government at folios 45, 49 of the Tribunal file.

    [9] See folio 166 of the Tribunal file.

14. At the hearing, the Tribunal went through each disk with the applicant asking him to explain what information they contained.  He stated that the disks contained content showing him undertaking his activities in [Country 4] and in Australia such as giving speeches.  He said that one of the disks contained coverage by a Bangladeshi television station of protests held in Australia in August 2016 which he said was shown in Bangladesh.  Another disk was coverage by a Bangladeshi television channel of the meeting of the party in Australia where he was made [an official].  Another disk showed him burning the photographs of the leader of the Awami League (at the protest he mentioned in his evidence in February 2018).

    Credibility concerns

    Evidence about adverse interest held in the applicant by the Awami League

15. During his evidence about having to flee Bangladesh in January 2015, the Tribunal asked the applicant whether, since police came to the meeting in late December 2014, they or anyone else from the Awami League had been looking for him.  In response, the applicant said that soon after he returned to [Country 4], friends in Bangladesh told him that he would get caught for being at the meeting and what he had done.  He said that he continued his political activities in [Country 4] nevertheless.

16. As discussed above, the applicant said that the risk to his safety increased after the events of December 2014 and his attendance at the meeting.  He said that prior to that time, the risk was not much.  Further in his evidence, the applicant said that it was following the meeting and fleeing back to [Country 4] in January 2015, that it became known to him that collecting this large sum of money that was handed over at the meeting was a ‘really big act’ and was reasonable cause for him to be attacked or targeted.  When asked how he knew that, the applicant said that he learned of this from colleagues first when he escaped from Bangladesh after the meeting.  He was again told of this when he returned to [Country 4] and had communications with his party leaders.

17. The applicant then said that the leader of his constituency in his native area in Bangladesh was no longer in the country.  He had fled due to false cases and oppressions against him.  When asked what the significance of that was in relation to risk to him, the applicant said that this person was no longer in Bangladesh because of false cases and oppressions on him by the Awami League.  The Tribunal again asked the applicant whether he had any evidence that the Bangladesh government knew of his activities and wanted to harm him.

18. In response, the applicant said that in April 2018 the leader of the Bangladesh government came to Australia and in March 2018 he was fully involved in making a protest.  He made comments on a social media website inviting people to protest that the government had caused the killings of many people and embezzled money.  He said that in response to those comments, a former member of the Chatra League (a youth wing of the Awami League) who lives in Australia (but while in Bangladesh), made a comment online saying that their names had been given to the police in Bangladesh.  The applicant made an online response to this person asking whether he was threatening him.  This person responded that he was a journalist who was just making information public.

19. The applicant then said that when they burned the leader’s photograph in February 2018 the Awami League in Australia had a meeting and raised this point which was reported on a Bangla TV station.  The applicant said that he knew how concerned the government was about the activities of the party in [Country 5].  He was aware of one man who was arrested on return to Bangladesh in that respect a few months back.  The Tribunal discussed with the applicant country information suggesting that a low level member of the party was at low risk of suffering serious harm in Bangladesh.  The Tribunal then put to the applicant that there was no evidence before it that police in Bangladesh had gone to his family there to apprehend him or that they had shown interest in locating him because of his involvement in the meeting of December 2014 or for any activities he had undertaken. 

20. In response, the applicant said that his family had been asked about him by local Awami League leaders in his native area.  He said that they asked his parents why he was going against the government with this type of activities.  The Tribunal asked the applicant when these people approached his parents and he said that they did this in January 2015 after he went back to [Country 4].  The applicant then said that further evidence that the Bangladesh government held an adverse interest in him was the fact that his father and brother formed a [school] and the government ‘kicked them out from there’.  The Tribunal asked the applicant when this happened.  In response, the applicant said that it happened slowly and ‘the last’ was in 2009 when his father was made a member of the school.  He said that although his father was the founder of the school, he was kept as a member which was the lowest position.  The applicant said that this action was taken because of his political activities and those of his [brother].[10]

    [10] See folios 140-144 of the Tribunal file which comprise documents said to be about the membership of the applicant’s father in a [school].  One document is dated August 2003 naming the applicant’s father as president of the school.  Another document is dated [September] 2018 naming past school presidents including the applicant’s father in the period 2003 until 2005 and then executive officer from 2005 until 2009.  Another document refers to him as the vice president in August 2005, member in January 2017 and again as a member in September 2010.

21. The Tribunal then asked the applicant whether these people from the Awami League he had earlier mentioned, visited his parents once only.  In response, the applicant said that they went once to his parents who told them that they did not have contact with him and so had no information about him.  The Tribunal asked the applicant to confirm that these people only went to his parents once.  In response, the applicant said that in fact, after a few months, they came for a second time when they saw that the applicant had still been doing activities in [Country 4].  The Tribunal asked the applicant how they knew he had been doing activities in [Country 4].  In response, the applicant said that ‘the newspaper’ was one thing and his posts on a social media website were another thing.  He said that in March 2015 the [Country 4] BNP did an Independence Day celebration.

22. The Tribunal asked the applicant whether these people from the Awami League actually told his parents that they had seen his posts on the social media website.  In response, the applicant said that they did say this to his parents.  They said that they knew the applicant was doing these activities but his parents said that they did not know because they did not have much communication with him.  He said that they told his parents at that time in March 2015 that they had seen his posts on a social media website and that he had taken part in the BNP Independence Day event.  The Tribunal asked the applicant whether there was any other evidence that the Bangladesh government held adverse interest in him and he said that it was just these two visits.

23. The Tribunal put to the applicant that in his written statement lodged with his protection visa application he made no mention of the Awami League twice going to his parents in 2015 to apprehend him because of his political activities.  In response, the applicant said that ‘maybe it just got missed out’.  The Tribunal put to the applicant that his representative’s lengthy written submissions lodged prior to the Tribunal hearing also made no mention of these visits to his parents by the Awami League.  In response, the applicant again said that this information just got missed out. 

24. The applicant’s claims about these visits to his parents are very significant given they comprise evidence that the Bangladesh government is pursuing the applicant because of his political activities, supporting his claims to that effect.  The Tribunal does not accept that if these visits truly took place, the applicant would fail to mention them in his written statement and as well, that there would be no mention of these visits in the written submissions from the representative lodged prior to the Tribunal hearing.  It is inconceivable that this significant evidence would be just ‘missed out’ as the applicant purported to claim and the Tribunal does not believe that these visits to the applicant’s parents by people from the Awami League took place.

    Concern about the genuineness of the applicant’s fear of harm

1. The applicant told the Tribunal that his right to remain in [Country 4] was contingent on holding a work permit which was, in effect, sponsored by his employer.  He said that if he did not have employment in [Country 4] he would not be able to stay there.  The Tribunal asked the applicant whether he then left his second position of employment that he commenced in May 2014 to come to Australia.  In response, the applicant said that he was thinking of travelling to Australia for a holiday.  He had been working on a construction project in [Country 4] which was coming to an end and his employer told him that his contract with the company could not be renewed.  The applicant knew that meant that his work permit could not be renewed.  He said that this occurred at the end of October 2015 and he finished his employment on 24 or 25 November 2015.  His employer gave him a notice about that one month prior to that time (late October 2015).  The applicant said that when he received that notice of termination it surprised him and he tried to find other work but was unsuccessful.  The applicant said that if his employer had not served notice of termination he would have just visited Australia and returned to [Country 4].

2. As discussed above, the applicant told the Tribunal that he understood that, as a result of his attendance at a meeting in December 2014, if he returned to Bangladesh he would be attacked, arrested and tortured.  It was for this reason that he never went back to Bangladesh after fleeing from there in January 2015.  He said that he had a risk of being arrested, friends told him that and he was doing activities in [Country 4] as well.  The Tribunal put to the applicant that it understood his evidence to be that from January 2015 he was too afraid to return to Bangladesh.  The Tribunal asked the applicant whether, from that time, he investigated how he could stay in [Country 4] permanently to avoid having to return to Bangladesh.  In response, the applicant said that he had talks with other corporations as well as with friends and previous colleagues to see if there were any employment positions he could take up to be able to stay in [Country 4]. 

3. The Tribunal put to the applicant that it had difficulty accepting that if he was genuinely in fear for his life in Bangladesh he would be willing to remain in [Country 4] on what seemed to the Tribunal to be a tenuous basis; that is, he could remain in [Country 4] as long as he held employment.  The Tribunal put to the applicant that he would have known that finding employment and maintaining it were not necessarily things that he could control, particularly if his employer decided that he was no longer required (as eventually occurred).  The Tribunal put to the applicant that it had difficulty accepting that if he was genuinely in fear of harm in Bangladesh, he would be content to remain in [Country 4] on the basis he put forward.  The Tribunal put to the applicant that someone in his claimed circumstances would have been trying very hard to go to a place where he could actually remain permanently to avoid having to return to Bangladesh where he claims he would suffer serious harm.

4. In response, the applicant said that in 2013 or 2014 he actually applied for permanent residence in [Country 4] but his application was rejected in 2014.  The Tribunal put to the applicant that, therefore, by January 2015, he knew that he did not have the right to reside in [Country 4] permanently.  In response, the applicant said that so long as he held employment he could stay in [Country 4].  He said that he had friends who had stayed in [Country 4] for 20 years on that same basis.  Again, the Tribunal put to the applicant that it had difficulty accepting that, in his claimed circumstances, as at January 2015, he would be willing to remain in a country where his effort to gain permanent residence had been unsuccessful when, at the same time, he was claiming that he could not go back to Bangladesh in fear for his life.

5. In response, the applicant said that one could apply for permanent residence in [Country 4] every two years.  So long as he had work he was safe.  He said that he did not know that the work he had was going to be terminated.  He said he that held a visa to visit [Country 6] and it was his intention, at that time, to come and visit [Country 6] and Australia for holidays.  He would then return to [Country 4] to resume his employment.  The delegate also shared the same concerns as the Tribunal as to the applicant’s willingness to remain in [Country 4] in his claimed circumstances and put to him that he had come to and remained in Australia to find employment (not because of a fear of harm due to his political activities).  To the delegate, the applicant said that he held better employment and income in [Country 4] than in Australia.  He said that he would never have applied for protection in Australia if he was not genuinely in fear of harm.

6. The Tribunal has considered the applicant’s responses and explanations but finds that he is not genuinely in fear of harm in Bangladesh.  If the applicant was genuinely in fear of harm in Bangladesh because of his political views, he would not have remained in [Country 4] from January 2015 on what the Tribunal considers to be a tenuous basis.  The Tribunal does not accept that the applicant, in his claimed circumstances, would have been content to avoid returning to Bangladesh by, in effect, maintaining employment in [Country 4].  The applicant would have well known that staying in employment was not something that he could control.  The Tribunal does not believe that if the applicant was genuinely in fear of harm in Bangladesh he would choose to take no steps from January 2015 to find a place of refuge where he could remain permanently.

   Credibility findings

7. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility as discussed above lead the Tribunal to find that the applicant is not a witness of truth.  For the reasons given above, the Tribunal finds that the applicant does not genuinely fear harm in Bangladesh because of his political activities or on any ground.  The Tribunal finds that the applicant has withheld the truth as to why he wants to remain in Australia and why he does not want to return to Bangladesh.  The Tribunal finds that it has no credible evidence on those matters.   

8. The Tribunal does find credible and accepts his evidence about his and his family members’ political activities in Bangladesh and his evidence about his political activities in [Country 4] and Australia, his association with senior BNP leaders and his on line anti-government comments.  This also includes accepting as credible his evidence about attending a party meeting in December 2014 and fleeing from that venue once told police were coming to make arrests.  The Tribunal repeats its finding that it disbelieves his evidence that, because of his political activities, the Awami League went to his parents in 2015 to apprehend him.

   Assessment of whether there is a real chance that the applicant will suffer serious harm in Bangladesh

9. In assessing the risk of the applicant suffering serious harm in Bangladesh, the Tribunal first notes that the applicant undertook political activities in Bangladesh when he lived in that country before relocating to [Country 4] in 2011.  The only harm he claims to have suffered was being beaten twice when he was a student for refusing to join the Awami League in 2000.  Those incidents are far too remote in time to demonstrate a real chance that the applicant will suffer serious harm on return to Bangladesh. 

10. The Tribunal accepts that the applicant undertook political activities in the period that he lived in [Country 4] from 2011 as he has claimed including making online anti-government comment.  At the same time, the Tribunal must consider that the applicant returned to Bangladesh a number of times from 2011 and was never harmed by Bangladeshi authorities or anybody else.  The Tribunal accepts the applicant’s evidence that he was at the party meeting in December 2014 and his claim that he hid with a friend after fleeing from the meeting.  However, the Tribunal must also consider that the applicant freely left Bangladesh through an airport using his own passport and was not apprehended.    

11. In addition, the Tribunal has also taken into consideration the applicant’s evidence about the political activities of various family members including difficulties experienced by his father and brother with respect to a [school].  However, none of these incidents have had any impact on the applicant.  As stated above, the only harm the applicant suffered in Bangladesh was being twice attacked in 2000 as a student.  Whatever harm his family have suffered in Bangladesh because of their own activities, this has not led to the applicant suffering serious harm.

12. The Tribunal has considered the applicant’s evidence as well as documentary evidence about the publicising of his activities both in [Country 4] and in Australia.  The Tribunal has taken into consideration the applicant’s evidence about instances where threats or statements have been made indicating the government’s disapproval his activities.  Those instances comprise a television report of a meeting of the Awami League in response to the burning of photographs of the party leader in relation to her visit to Australia in February 2018 and the report of a statement at that meeting that those involved would be punished.[11]  There is the online comment from a Chatra League member that in relation to that same protest the names of those involved had been given to the police.  This also includes an  online entry to the effect that the editors of an Awami League magazine criticised the applicant’s online commentary.

    [11] See Department of Home Affairs, Country of Origin Information Services Section, Bangladesh:CI180618094129960 - Political opponents -overseas protests - treatment of returnees 25 June 2018.  At page two of that source is reference to an article in an Australian based online newspaper listing people involved in the protests against the Bangladeshi leader in February 2018 and including the applicant’s name.

13. With respect to his activities in [Country 4], prior to his returned there in January 2015, as discussed immediately above, on his return trips to Bangladesh in that period the applicant was not harmed.  As for his activities (and the publicising of those activities) after that time and up until the present as well as the instances just mentioned indicating government disapproval of certain activities with which he was involved, the Tribunal finds it reasonable to consider that if the applicant was of adverse interest to the Awami League and Bangladeshi authorities, that interest would be manifest by, at the least, enquiries with his family about him.  The applicant claimed that because of his political activities up to January 2015 people from the Awami League went to his parents to apprehend him at that time and also in March 2015.  However, for the reasons given above, the Tribunal disbelieves that evidence.  The fact remains that, notwithstanding the applicant’s position in his party in [Country 4] and Australia, his activities in both countries, including his online activities and his association with senior party leaders, the Tribunal has no credible evidence that the Awami League currently holds adverse interest in him.

14. In its most recent assessment of Bangladesh, DFAT provides a comprehensive examination of human rights practices in Bangladesh and those at risk of suffering serious harm.  With respect to the risk of a returnee suffering serious harm in Bangladesh due to political activities undertaken while out of the country, the only observation made by DFAT was:

    “DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia.”[12]

    The Tribunal undertook searches of other sources of country information to find any further analysis of this issue and was unsuccessful.  In this respect, the Tribunal had reference to the Department of Home Affairs, Country of Origin Information Services Section, Bangladesh:CI180618094129960 - Political opponents -overseas protests - treatment of returnees 25 June 2018.  In terms of the risk of harm to those involved in protests outside Bangladesh, this source contained no further relevant and more recent information beyond the DFAT country assessment.  This source contained reference to the government monitoring the activities of Bangladeshi journalists travelling abroad, but the Tribunal does not consider the applicant to be a journalist nor would his anti-government comment made online or publicly in writing equate with that of a journalist writing for a media agency.

    [12] DFAT Country Information Report Bangladesh 2 February 2018 at 5.23.

15. The Tribunal acknowledges a reference in that source to a report naming those involved in the protest of February 2018 against the Awami League Leader.  The applicant’s name is included as being involved in this protest, but, the Tribunal has also acknowledged above and taken into consideration all of the evidence put forward indicating those political activities of the applicant that have been publicised both in Australia and in [Country 4].  The Tribunal considers that if it was the case that the Bangladesh government monitored and was concerned about anti-government activities undertaken by its nationals abroad and harmed them on return to Bangladesh, there would be extensive reporting of this.  The fact that there is not more extensive reporting that such people are harmed suggested to the Tribunal that the risk of the applicant suffering serious harm for undertaking political activities in Australia (and [Country 4]) is remote.

16. The Tribunal discussed this with the applicant along with available country information being the comment from DFAT on this issue.  In response, the applicant said that his position as [an official] for the party in Australia was [one of the] highest position in the party here.  He also referred to his close association with high ranking party leaders like the BNP Secretary-General.[13]  Even if the Tribunal is to consider that the applicant was a high profile individual as referred to by DFAT and someone in whom the authorities may take an interest on return, the applicant has conducted his political activities over a number of years in [Country 4] yet returned to Bangladesh and was not harmed.  Since the last occasion he returned to [Country 4] and while in Australia, he has continued his activities yet there is no credible evidence that the authorities have taken an adverse interest in him such as actually enquiring with his family about him. 

    [13] This same claim about his close association with senior party leaders was made by his representative in submissions of 18 September 2018 and 22 October 2018.

17. Further, the Tribunal notes that witness 1 and witness 3 were both former [officials] of the BNP in Australia and have returned to Bangladesh a number of times.  Both men said that on the return visits to Bangladesh they did not have any difficulties with Bangladesh authorities.  In other words, no interest was taken in them notwithstanding their activities in Australia including having held senior positions in the party in Australia.  While both men claimed that they were careful when they went back to Bangladesh, visited family and did not undertake political activities, the Tribunal could reasonably infer that, if the Bangladesh government had been concerned about their activities in Australia, it would have taken steps to apprehend them when they went back there.

18. Accordingly, for all of these reasons, the Tribunal finds that the risk of the applicant suffering serious harm in Bangladesh because of the political activities he has undertaken in the countries where he has lived ([Country 4] and Australia) and including his online anti-government comments, is remote.  The applicant also claimed to the Tribunal that the joint secretary of the BNP in [Country 5] had been arrested on return to Bangladesh.  To support these claims, the Tribunal was provided with a report about a ‘Senior BNP joint secretary’ being arrested at his home in Bangladesh and accused of attacking the High Commission in [Country 5]. 

19. The Tribunal does not have sufficient information as to the background of this incident to know the precise reasons why this person was arrested, including as to what activity his arrest relates, whether the accusation made against him is based on activities abroad or activities undertaken in Bangladesh.  The Tribunal could not conclude from this incident that those who undertake political activities in other countries face a real chance of suffering serious harm on return to Bangladesh, including the applicant.  In submissions of 18 October 2018, the representative enclosed what appeared to be an online social media report of a notice warning those who burned or dishonoured a photograph of the Awami League leader would repent naming certain individuals but not the applicant.[14] 

    [14] See folio 196 of the Tribunal file.

20. The Tribunal has considered this evidence as a further instance in which the threat of harm is made towards those who oppose the government.  The Tribunal has considered above those similar instances, but, for the reasons given above, remains of the view that the risk of the applicant suffering serious harm in Bangladesh because of his political activities is remote.  The Tribunal could not infer from the existence of this report that there is a real chance that the applicant will suffer serious harm in Bangladesh because of his political activities.

21. The Tribunal now turns to consider the risk of the applicant suffering serious harm with respect to how he might conduct himself on return to Bangladesh with respect to his political opinions.  The Tribunal turns to consider the risk of him suffering serious harm from undertaking political activities or refraining from doing so to avoid serious harm.  In terms of risk of harm for involvement in the BNP, DFAT states as follows:

    “The AL has also focused on restricting the activities of opposition political parties, particularly the BNP and JI (see following section). These restrictions have included arresting thousands of opposition political party members and supporters, often in conjunction with political demonstrations (see Arbitrary Arrest and Detention), preventing opposition parties from holding meetings and demonstrations, and pressuring opposition candidates to withdraw from local and municipal elections, including through preventing them from submitting election nominations. Opposition figures have also been prevented from leaving the country (see Exit and Entry Procedures), and many (including Khaleda Zia) have faced legal sanction, including sedition charges. In October 2017, authorities issued two further arrest warrants for Khaleda Zia, who was at the time travelling outside Bangladesh.

    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.”[15]

    [15] DFAT, Country Information Report Bangladesh (2 February 2018), at 3.54-3.55.

1. DFAT also refers to politically motivated violence which peaks during periods of heightened political unrest, including during elections, strikes and blockades.[16] DFAT states that this violence takes place between “supporters of different factions of the same party (intra-party violence), supporters of rival parties (inter-party violence), and between party supporters and law enforcement agencies”.[17] However, DFAT further states that “[i]n recent years, the frequency and level of intra-party violence has far outweighed that of inter-party violence, particularly between competing AL factions”.[18]

   [16] DFAT, Country Information Report Bangladesh (2 February 2018), at 3.59.

   [17] DFAT, Country Information Report Bangladesh (2 February 2018) at 3.59.

   [18] DFAT, Country Information Report Bangladesh (2 February 2018) at 3.61.

2. The Tribunal put to the applicant that according to available country information senior party leaders were at risk of suffering serious harm in Bangladesh as were those activists who were involved in party work.  The Tribunal put to the applicant that when he lived in Bangladesh he did not have trouble with the government even though he was involved with the party at that time.  In response, the applicant agreed with that statement.  The Tribunal then put to the applicant that from 2011 he returned to Bangladesh a number of times but did not have any difficulty with the government.  The Tribunal put to him that this might suggest that the risk of him suffering serious harm for supporting the party was remote.

3. In response, the applicant said that prior to the events of December 2014 his fear was not much.  It was after those events that he had more fear and it was because of those events that he could not return to Bangladesh.  The Tribunal understands from this country information that, in addition to senior members of the BNP, active members who show their opposition to the government such as in demonstrations are at risk of suffering serious harm.  The Tribunal accepts the applicant’s evidence about undertaking political activities when he lived in Bangladesh, in [Country 4] and in Australia.  The Tribunal is satisfied that these activities were not undertaken for the sole purpose of strengthening a refugee claim given they were conducted long before the applicant applied for protection, certainly in the case of those activities prior to his arrival in Australia.

4. The Tribunal is willing to accept that the applicant may remain a member of the BNP and have contact with the party in Bangladesh.  However, regardless of the applicant’s political activities to date and whatever positions he has held in the BNP (and Jubo Dal), the Tribunal finds that he will not and will not want to undertake political activities that would lead to a real chance of him suffering serious harm.   The Tribunal makes this finding because, for the reasons given above, it finds that the applicant does not genuinely fear harm in Bangladesh based on his political opinions and activities.  For the reasons given above, the Tribunal finds that the applicant has withheld the truth as to why he does not want to return to Bangladesh. 

5. If it was truly the case that the applicant, on return to Bangladesh, wanted to undertake political activities of any significance that would lead to a real chance of him suffering serious harm, because of the convictions he claims to hold, it would be reasonable to expect that he  would actually want to be in Bangladesh seeking to bring about change for his party.  The applicant told the Tribunal that he could not do that as he would suffer serious harm (including through having to refrain from undertaking political activities to avoid suffering serious harm).  His view that he could not return to Bangladesh because of that fear was strengthened and determined following the meeting of December 2014.  However, as discussed above, while he held that fear, he took no steps, from that time, to find a place of permanent refuge where he could avoid returning to Bangladesh.

6. Instead, the applicant chose to remain in [Country 4] on a tenuous basis of being given permission to remain so long as he held employment.  As discussed above, the Tribunal does not believe that someone in the applicant’s claimed circumstances and in genuine fear of harm in Bangladesh because of his political opinions and activities would behave that way.  Accordingly, the Tribunal is satisfied that the reasons the applicant does not want to return to Bangladesh are not related to his political opinions and political activities.  Therefore, the Tribunal finds that this applicant will not and will not want to undertake political activities in Bangladesh that would lead to a real chance of him suffering serious harm.

7. In making this finding, the Tribunal considered the evidence, both oral and written, from various party members including the Secretary-General of the BNP, to the effect that the applicant is a potential future leader of the BNP who would, for that reason, suffer serious harm in Bangladesh.  However, these opinions are based on representations the applicant has made to those people about that.  Their assessments of his commitment and future behaviour do not explain why the applicant, as someone who claims he cannot return to Bangladesh because of his political activities, took no action once he finally formed that view, to find a place of permanent refuge so he could avoid having to return there.  The opinions and assessments made by these witnesses do not persuade the Tribunal that the applicant genuinely feared harm in Bangladesh because of his political opinions and activities.  Those opinions and assessments do not persuade the Tribunal that on return to Bangladesh this applicant will or will want to undertake political activities of a nature that would lead to a real chance of him suffering serious harm.

8. By letters dated 18 September 2018, 22 October 2018 and 11 December 2018, the representative made submissions.  In the first two letters the representative presented country information demonstrating that the Bangladeshi government represses dissent and opposition.  This country information indicated that opposition party leaders and activists were at risk of harm from state agents, criminal actors acting in collusion with them, and in relation to which those agents could act with impunity.  In the submissions of 11 December 2018, it was submitted that the risk of harm for opposition party supporters was increased due to the elections to be held in December 2018.  It was submitted that this violence was likely to break out in relation to the elections because the opposition parties were not likely to cooperate with the government and the government had been in power for some years and, therefore, would go to extreme lengths to hold onto power.

9. The Tribunal has carefully considered these submissions and country information but finds that they are consistent with the position expressed by DFAT above in its assessment on Bangladesh.  The Tribunal can agree that the risk of an opposition party supporter suffering serious harm would be greater during election periods.  Nevertheless, the Tribunal, for the reasons given above, is satisfied that this applicant will not and will not want to undertake political activities in Bangladesh beyond a minimal level that will not lead to a real chance of him suffering serious harm.

10. In these submissions, reference was made to previous decisions of the Tribunal (differently constituted) that can be distinguished from this applicant’s case.  In these previous decisions, the Tribunal with respect to those applicants was satisfied that they would, on return to Bangladesh, undertake political activities including party leadership which would lead to a real chance that they would suffer serious harm.  For the reasons given above, the Tribunal does not accept that the applicant in this case will behave in that fashion on return to Bangladesh.  In one of these previous decisions, the Tribunal also noted an additional factor that the applicant in that case was a successful businessman.  No such claim has been made that the applicant in this case is at risk of harm in Bangladesh on that ground.

11. The country information provided by the representative contained some isolated references to the youth wing of the Awami League harming women, children and ‘ordinary people’.  The Tribunal assumes that the reference to so-called ordinary people is a reference to people not affiliated with any opposition party in Bangladesh.  So far as this was meant to demonstrate risk of serious harm to the applicant, the Tribunal finds that risk to be remote considering that the references in the country information provided about such people being harmed are isolated and when they are considered in the context of the size of the population of Bangladesh.[19]

    [19] The population of Bangladesh is 161 million - see DFAT Country Information Report Bangladesh 2 February 2018 at 2.6.

12. It was also submitted that the applicant’s close association with party leaders meant that on return to Bangladesh he would undertake a significant political role for the party.  While the Tribunal accepts the applicant’s claims and those of the various witnesses about his contact and association with BNP leaders or senior members, for the reasons given, the Tribunal does not believe this applicant will or will want to undertake political activities in Bangladesh that lead to a real chance of him suffering serious harm.

13. The Tribunal also considered the risk of the applicant suffering serious harm on return to Bangladesh specifically in relation making anti-government comments online.  In its country assessment, DFAT refers to an isolated number of cases involving the use of the Information and Communication Technology Act (2006) (‘the ICT Act’) to arrest people for making comments online said to defame religion (and with no connection to criticism of the Bangladeshi government).[20]  Odhikar, in its human rights assessment for the first half of 2018, stated that the Bangladeshi government uses this particular law as a weapon against human rights defenders, journalists and bloggers.[21]  Odhikar refers to an isolated number of cases of people being arrested for making comment online critical of the Bangladeshi government.[22]  Odhikar states that in the first half of 2018 there were six arrests under this law on that basis.[23]  This source also refers to the possibility of a new Digital Security Act to also repress online dissent but containing the current provisions of the ICT Act used in the cases mentioned above and that are to be repealed.[24]

    [20] DFAT Country Information Report Bangladesh 2 February 2018 at 3.25.

    [21] Odhikar, Half-yearly Human Rights Monitoring Report: January - June 2018 1 July 2018 accessed from Odhikar, Half-yearly Human Rights Monitoring Report: January - June 2018 1 July 2018 at p 28.

    [23] Ibid.

    [24] Ibid.

14. The Tribunal considered that although this law could potentially be used against someone like the applicant who has made online comment against the government it seemed that it had been used for this purpose in only a limited number of cases.  DFAT refers to its use in relation to comments about religion not politics.  Further, the Tribunal must consider that in 2016 there were at least 16 million people in Bangladesh who went online and used the internet.[25]  It is quite possible that a proportion of these people could be making anti-government commentary online.  The Tribunal put to the applicant that given the size of the population that had access to and was using the internet and the very small number of cases in the first half of 2018 of people being arrested for making anti-government comment online, the risk of him suffering serious harm on this ground was remote.

    [25] DFAT Country Information Report Bangladesh 2 February 2018 at 3.77 where DFAT states that 13.2 per cent of the population went online in 2016.

15. In response, the applicant agreed that the number of arrests was very small.  At the same time his representative submitted that even if the number was very small there could still be a real chance that the applicant could be arrested.  The applicant also said that he had undertaken other political activities and so he was at greater risk.  The Tribunal has assessed above the risk of the applicant suffering serious harm in Bangladesh because of political activities he has undertaken while he has been out of the country and that included his online anti-government comments.  For the reasons given above, the Tribunal finds that risk to be remote.  The Tribunal, for the reasons given above, finds that the applicant is not in genuine fear of harm in Bangladesh and there is no credible evidence as to why he does not want to return there.  Any online anti-government comments he makes on return to Bangladesh will be minimal and he will not and will not want to make such comments that would lead to a real chance of him suffering serious harm.  

16. The representative provided to the Tribunal country information about people in Bangladesh being arrested under the ICT Act.[26]  What was notable about this country information is that it related to an isolated number of arrests of people who had made comments online about the need for road safety and the treatment by the government of students who had protested about that.  The Tribunal notes that people arrested included people described as a well-known actress, a well-known photographer, high profile writer and a university professor who in fact had a case taken out against him while he was out of Bangladesh and tried in absentia (action not taken against the applicant notwithstanding his anti-government online commentary over a number of years).  This country information also contained a reference to an individual running an online job website getting arrested for his criticism of a government job quota system.

    [26] See folios 47,77, 78, 81, 83, 86, 87, 172 – 177 of the Tribunal file.

17. One source provided by the representative somewhat vaguely claimed that many people had been arrested in Bangladesh for expressing their opinions on social media.  What was notable about the content of this source was that it related predominantly to the arrests of people (referred to as atheists or secular) in relation to online commentary that was considered to defame religion and had no connection whatsoever with BNP supporters or activists making criticism of the government.  The Tribunal, overall, has carefully considered the country information put forward by the representative on this issue of the risk of the applicant suffering serious harm for making online anti-government comment. 

18. However, the focus of this information appears not to be to do with the prosecution of BNP supporters for making comments against the Awami League.  This information does not alter the view of the Tribunal that the risk of the applicant suffering serious harm in Bangladesh for his past online activity is remote.  This information does not alter the Tribunal’s view that the risk of the applicant suffering serious harm on return to Bangladesh for what the Tribunal considers will be only minimal online anti-government comment from him is also remote.

19. At the hearing, the applicant said that the leader of his constituency in his native area in Bangladesh had left the country because of false cases and oppressions against him.  That may well be so but that information by itself does not demonstrate that there is a real chance the applicant will suffer serious harm in Bangladesh.  The person in question may well have come into conflict with the Bangladeshi government which has led to the government trying to harm him.  The Tribunal repeats its finding that the applicant himself has not been harmed by the Bangladeshi government when he was in Bangladesh.

20. As discussed above, one of the witnesses at the hearing said that the applicant had been undertaking community work but the only ground on which the applicant claims protection is on the basis of his political activities.  For the reasons given above, the risk of the applicant suffering serious harm on that ground in Bangladesh is remote.  When questioned about why he returned to [Country 4] after visiting Bangladesh, at one stage the applicant referred to the Awami League possibly asking him for money because he had been abroad.  The applicant never claimed that this happened to him when he was in Bangladesh.  No evidence has been put before the Tribunal that this would happen to him on return to Bangladesh and there is not a real chance that he would suffer serious harm on that ground.

    Request to take evidence from a witness by telephone

21. At the hearing, the Tribunal was asked to telephone a person referred to as the Secretary-General of the BNP who had been arrested in January 2015 following the party meeting in December 2014.[27]  The Tribunal asked the applicant to describe his dealings with the Secretary-General of the party.  In response, the applicant said that he had connections with him now.  He said that when the BNP leader in Bangladesh was arrested, he arranged a petition with several hundred signatures and sent that to the Secretary-General.

    [27] At the hearing the applicant also referred to his local member of Parliament in Bangladesh giving evidence over the telephone but being unable to do so because he was travelling to another country. The Tribunal gave the applicant the opportunity of having this person provide a written statement of the evidence the applicant wanted the Tribunal to consider.  No further statement was received.  Also, prior to the hearing the Tribunal was given the telephone number of another party member for evidence to be taken but no request was made at the hearing that this person be telephoned (see folio 84 of the Tribunal file).

22. The Tribunal asked the applicant when he first had contact with this person.  In response, the applicant said that he had first met him in the ‘chatra dal’ in Dhaka and had close relations with him when he was in [Country 4] in 2012.  In July 2015, as discussed earlier in this decision, the Secretary-General had gone to [Country 4] to receive medical treatment for two or three days and the applicant booked medical appointments for him.  The applicant arranged accommodation for him and took him to and from his medical appointments.  The Secretary-General knew the applicant had been a student leader.  He said that the Secretary-General came to [Country 4] a number of times.

23. The applicant said that the Secretary-General had also come to Australia and on two occasions the applicant received him at the airport.  When asked what other dealings he had had with this person apart from what he had already said, he said that they would discuss politics over the telephone.  When asked how often they did this, he said that it depended on the circumstances.  He recalled an occasion when collecting signatures that they spoke every day but the Secretary-General was a busy man.  For that reason, nowadays they spoke once per month and the applicant normally communicated with his wife instead of him.  This was because she was not as busy as him.  From her, he would take information as to whether the Secretary-General’s health was satisfactory.

24. At the hearing and in submissions dated 16 October 2018 it was submitted that the evidence of this witness was critical to determination of the review.  To refuse to take it was unreasonable and would have no intelligible justification.  It was submitted that this person’s evidence could make a difference to the Tribunal’s perception of the applicant’s political activities and his credibility generally.  His evidence would demonstrate that the applicant had close connections with top party leaders.  His evidence would confirm the applicant’s current political profile and his future political activities in Bangladesh.

1. At the conclusion of the hearing, the Tribunal told the representative and applicant that it wished to consider all of the evidence before it about the applicant’s case before deciding whether or not it was necessary to take evidence from this person over the telephone.  The Tribunal advised that if it felt that was necessary then it would reconvene hearing for that purpose.  At the same time, in the light of the issues discussed during the hearing, the Tribunal gave the representative a period of two weeks to provide a further written statement from this person containing any further information he wished the Tribunal to consider beyond the contents of that provided in the first supporting letter.

2. The Tribunal accepts the applicant’s evidence about his dealings with the Secretary-General.  The Tribunal accepts the contents of the two letters provided by this person.  The contents of those letters are consistent with the applicant’s evidence about his position in the BNP in [Country 4] and in Australia.  Those contents are also consistent with statements made by the witnesses and in the other evidence submitted about the applicant’s potential as a future leader for the party in Bangladesh.  However, for the reasons given above, the Tribunal finds, notwithstanding its acceptance of this evidence, the risk of the applicant suffering serious harm in Bangladesh because of his political activities, including his online activity, to date is remote. 

3. The Secretary-General may well have assessed the applicant as a committed activist who would undertake activities on return to Bangladesh and seek to become a party leader.  However, that assessment is based on representations the applicant has made to that person as he has to all of the other people in the party who have submitted evidence for him.  None of those assessments, including that of the Secretary-General himself, alter the fact that from January 2015 when the applicant decided he could no longer return to Bangladesh he took no steps to find a place of refuge where he could remain permanently to avoid the harm he claims to fear in Bangladesh due to his political convictions and activities.  The applicant’s inaction in this respect is the basis on which the Tribunal finds that he does not genuinely fear harm in Bangladesh based on his political convictions and activities or on any ground.

4. For the reasons given above, there is no credible evidence before the Tribunal as to why the applicant does not want to return to Bangladesh.  For the same reasons, the Tribunal finds he will not and will not want to undertake political activities that would lead to a real chance of him suffering serious harm.  Accordingly, the Tribunal elected not to telephone the Secretary-General.  His evidence about the applicant’s convictions and future activities would not explain the applicant’s inaction to seek permanent refuge from January 2015.  The Tribunal has otherwise accepted the evidence before it from that person but also the applicant’s own evidence as to their association with each other and the positions the applicant holds in his party.  The Tribunal has given reasons above as to why the risk of the applicant suffering serious harm in relation to those matters is remote.

5. The Tribunal also understands that the Secretary-General may have also wanted to express his views about how opposition party members are treated in Bangladesh, such opinions also being expressed by those party members who provided supporting letters for the applicant.  The Tribunal considered that this information would not be of any value given the treatment of opposition party members in Bangladesh is well reported in country information which is discussed above.  Further the Tribunal must also consider the question of independence of any opinions expressed by the Secretary-General and considers DFAT to be a reliable independent source of country information.

   Medical evidence

6. The representative submitted a handwritten report from a psychiatrist at a hospital in [Australian city 1] dated [September] 2018 who stated that he had reviewed the applicant.[28]  According to the report, the applicant was experiencing symptoms consistent with major depressive disorder in the context of worry about whether he would face imprisonment or trauma if sent back to Bangladesh.  The psychiatrist notes the account the applicant gave him about being a member of a political party repressed by the Bangladesh government.  The applicant has conveyed to the psychiatrist the impression that he is afraid to return to Bangladesh because of his political activities.  The psychiatrist is not in a position to assess the credibility of those claims made by the applicant.

   [28] See folio 85 (back of the page) of the Tribunal file. 

7. The Tribunal is satisfied, for the reasons given above, that the applicant does not genuinely fear harm in Bangladesh and he has withheld the truth as to why he does not want to return there.  Accordingly, there is no credible evidence as to the cause of the applicant’s mental state as assessed by the psychiatrist.  The applicant did not claim protection on the basis of his mental state.  It could well be that with his immigration status in Australia resolved his mental state will improve.  At any rate, the Tribunal states that, notwithstanding the report from this psychiatrist, the applicant had a meaningful opportunity to participate in the hearing.  He was well able to comprehend the questions put to him and respond to them.

   Finding on whether there is a real chance that the applicant will suffer serious harm in Bangladesh

   For the reasons given above, the Tribunal finds that the risk of the applicant suffering serious harm on return to Bangladesh is remote. There is not a real chance that the applicant will suffer serious harm. For all of the reasons given above, the Tribunal finds that the applicant does not have a well- founded fear of persecution within the meaning of s.5J(1). For those same reasons, the Tribunal finds that the applicant does not meet the complementary protection criterion.

   CONCLUSIONS

8. 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).

9. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

10. 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

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

    Paul Millar
    Member