1611241 (Refugee)

[2019] AATA 2038

1611241 (Refugee) [2019] AATA 2038 (31 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1611241

COUNTRY OF REFERENCE:                  Bangladesh

MEMBER:James Silva

DATE:31 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 31 January 2019 at 6:36pm

CATCHWORDS

REFUGEE – protection visa – Bangladesh – political opinion – support of JEL – supporter of ICS – assaulted and threatened – politically motivated false charges – no genuine affiliation with the group – credibility issues – failed asylum seeker – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5J, 36, 65, 91R, 437, 438
Migration Regulations 1994 (Cth), Schedule 2

CASES

MZAFZ v MIBP [2016] FCA 1081

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a man in his [age] from Bangladesh. 

2. The applicant arrived in Australia [in] March 2015, as the holder of a [temporary visa]. He applied for a protection (Class XA) visa on 5 June 2015. On 1 July 2016, the delegate of the Minister for Immigration and Border Protection (the delegate) refused the application pursuant to s.65 of the Migration Act 1958 (the Act).

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

4. The applicant attended a Tribunal hearing on 5 October 2018.

5. For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

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

   CLAIMS AND EVIDENCE

   Protection claims

7. The applicant claims to be a supporter of Jamaat-e-Islami (JeI), and to have been an [official] in its student wing, the Islami Chhatra Shibir (ICS). He claims to have been subject to constant threats and harassment at the hands of the ruling Awami League (AL), including a false case lodged in January 2014, and attacks in both Bangladesh and [Country 1]. He fears that AL political figures and cadres, in both his home area of Bogra and Dhaka, will attack him if he returns to Bangladesh, and that the police and paramilitaries will pursue false cases against him, or even kill him.

8. The applicant also claimed to fear that the Bangladesh authorities will torture or kill him if they find out that he has sought protection in Australia.

   Background

9. The applicant is a [age] year old man from the city of Bogra, in Bangladesh’s Rajshahi Division. His documents indicate that he was born in [Town 1] thana[1], Shahjahanpur upazila, Bogra. The village has a mixed Muslim/Hindu population of more than [number] people, and is about half an hour by rickshaw from [Town 1].

   [1] An administrative unit also referred to in the applicant’s document as ‘police station’.

10. The applicant has Bengali ethnicity, and nominated Sunni Islam as his religion. He speaks Bengali (Bangla) and English.

11. The applicant gave his home address until August 2014 as in Bogra. He attended school in [Town 2], some [number] km from the village, completing his Secondary School Certificate in [year]. From [date], he attended [a] University College in Dhaka, completing [a course]. He went on to complete [another course] in [date]. He told the Tribunal that in Dhaka, he also worked [in an occupation] in a [company], and he [was employed in another position]. Dhaka is some [number] km from the applicant’s home area, with road travel time of at least [number] hours. At hearing, he clarified that the village in Bogra has always been his official home address. When living in [Town 2] and Dhaka, he used to return to the village between one and three times per month.

12. The applicant lived in [Country 1] from August 2014 to March 2015, studying [a second course]. He discontinued the course to travel to Australia.

13. The applicant is single. His widowed mother lives in Bogra. He has [a] brother living in [another country], and a [brother] living in the capital, Dhaka. His mother lives with the [brother’s] in-laws.

14. The applicant holds a Bangladesh passport issued in [2012], originally valid to [2017]. He told the Tribunal that he had been hoping to do [other] studies abroad. He travelled to [Country 1] in mid-2014. Following a brief visit to [Country 2], he came to Australia in March 2015. The applicant presented a new Bangladeshi passport issued in [2018], obtained at the Bangladesh High Commission in Canberra. He said that he had no difficulties obtaining the new passport.

    Evidence

15. The evidence before the Tribunal includes the following relevant material: -

    §  The applicants’ protection visa application forms, lodged on 5 June 2015.

    §  Documents related to the applicant’s identity:

    -   The applicant’s birth certificate; his Bangladesh passports, issued in [2012] and [2018]; his national ID card; and his Bangladesh driver’s license.

    -   Copies of Australian debit cards, his IETLS test result, several academic certificates, [Country 1] student card, and his Australian visa grant notice.

    -   The Department wrote to the applicant on 1 June 2016, inviting him to comment on adverse information that he may have provided false information about his identity. The applicant’s representative replied on 27 June 2016, attaching copies of various certified identity documents.

    -   A printout from the Bangladesh Birth Registration Number index records the applicant’s name, BRN number, date of birth, place of birth and parents’ names.

    §  The applicant’s protection claims are set out in typed notes on the application form, and a more detailed statutory declaration dated 4 June 2015.

    §  Supporting documents:

    -   On ICS letterhead, dated [date], a list of [members], in English, certified by [an official] of the ICS [Town 1], Bogra.

    -   A police report addressed to [a] Police Station Officer-in-Charge, dated [January] 2014 (English translation only).

    -   A hospital discharge certificate dated [in] April 2014.

    §  At the Department interview, the applicant drew a likeness of the Jamaat-e-Islami party symbol, which the delegate placed on file (folio 124).

    §  Country information: The applicant submitted a large volume of country information to the Department. These included reports from the Bangladesh legal and human rights organisation Ain o Salish Kendra (ASK), Human Rights Watch and Amnesty International; an academic study on extra-judicial killings in Bangladesh; a report on Bangladesh from the Human Rights Committee of the UN International Covenant on Civil and Political Rights, dated 27 April 2017; and various press articles.

    -   Three colour photographs, two showing young armed men in what appears to be a public park; and one showing the bloodied head of a young man. Although he identified one of these persons by name, the applicant said that these documents did not relate to him personally, but were instead illustrative of political violence in Bangladesh.

    §  The applicant attended a protection visa interview (‘Department interview’) on 17 July 2015, a recording of which is on the Department file.

    §  The delegate’s protection visa assessment record (‘delegate’s decision record’) of 1 July 2016.

    §  Review application form lodged on 24 July 2016, attached to which is a copy of the delegate’s notification letter (but not a copy of the decision record).

    §  Pre-hearing submission of 1 October 2018, which addresses aspects of the delegate’s decision and reasoning. It also includes a number of articles about Islami Chhatra Shibir (ICS). The applicant submitted to the Tribunal a range of other documents. These include police and court documents (included in the list above) and various photographs, some showing himself at political gatherings in Australia, and others showing political activities and violence in Bangladesh (not portraying him).

16. The Department file includes papers relating to the applicant’s identity. These are an incoming passenger card, in which he gave his name as [Alias 1] and his family name as [the Applicant]; and a sizeable number of printouts from the applicant’s [social media] account (folios 75-123), in the name ‘[variation of Alias 1]’. A document examination report contains the results of an assessment of his Bangladesh ID card, passport and birth certificate. The delegate drew on these materials in assessing the applicant’s identity. He also provided the birth certificates of his mother and [brothers]. The births were all registered in April 2015, and the certificates issued [in] April 2015, evidently to support his claimed identity. The Tribunal records these materials for completeness; they do not inform the reasoning in this decision.

17. The applicant appeared before the Tribunal on 5 October 2018, to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Bengal (Bangla) languages. He presented two witnesses, [Mr A] and [Mr B]. The Tribunal took evidence from [Mr A], noting that [Mr B] intended to confirm and address the same issues, and that it would give appropriate weight to his willingness to do so. The applicant is not represented in this matter.

18. The Tribunal also has before it the Department file [file deleted], which contains the applicant’s student visa application, lodged on 28 April 2015. He withdrew this application prior to lodgement of his protection visa application, after learning that he could not make a valid student visa application onshore.

    Non-disclosure certificate – s.438 of the Act

19. The Department issued a certificate on 1 July 2016 under s.438 of the Act, purporting to restrict disclosure of information on the following folios of Department file [file deleted]:

    §  Folios 126-131: These contain the full Document Examination Report assessing the genuineness of the identity documents that the applicant had submitted to the Department.

    §  Folios 75-123: These are screenshots from the applicant’s [social media] account.

    §  Folio 66: The Department’s completed checklist, ‘Identification Text: Protection Visa Applicant’.

20. The delegate certified that s.438(1)(a) applied to the information in these folios ‘because it relates to internal deliberations of the Department’. The Tribunal is not satisfied that this reason forms the basis for a claim to public interest immunity, having regard to the Federal Court’s decision in MZAFZ v MIBP[2], which considered a s.438 certificate with the stated reason ‘contains internal working documents’.

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

21. A subsequent disclosure decision checklist dated 15 November 2016 found that the file in fact contained no material subject to s.437 or s.438, effectively revoking the earlier certificate.  The Tribunal alerted the applicant to these materials, for transparency.

    Identity and receiving country

22. The delegate, in the decision under review, expressed concerns about the applicant’s identity and the veracity of his claimed academic background. Of particular concern were the following:

    a)the applicant’s name, date of birth and personal ID number, as stated on his passport and national ID card, were consistent. However, different personal ID numbers appeared on his birth certificate and driver licence; and

    b)his [social media] account uses the name ‘[variation of Alias 1]’; he gave the name [combination of applicant name and Alias 1] on his incoming passenger card; and at the Department interview, he also stated that he has the nickname ‘[Nickname C]’.

23. Nicknames are common in Bangladesh, and the Tribunal accepts that the applicant is also known as [Alias 1]. It places weight on the fact that his name and personal details are consistent on his passport and ID card. It takes into account, too, that the applicant appears to have misunderstood or at least mixed up the terms ‘family/surname’ and ‘given name’ on the incoming passenger card. This also occurred on his protection visa application form (folio 55 of the Department file), where he gave the names of his brothers (who, in any event do not share his surname). The Tribunal also takes into account that many [social media] accounts use variations of a person’s name, rather than their real name.

24. The Tribunal shares the delegate’s concern that the applicant presented a birth certificate and driver licence bearing a different personal ID number, and his use of the nickname ‘[Nickname C]’. Nonetheless, on the available material, and for the purpose of this decision, it finds that his name is [the Applicant], as claimed, and that his nickname is [Alias 1].

25. The applicant claims that he is a national of Bangladesh. He has presented his Bangladesh passports, and given documentary and other evidence that is consistent with this claim. There is nothing to suggest that he has any other (or indeed additional) nationality. The Tribunal is satisfied that he is a Bangladesh national. Accordingly, Bangladesh is the receiving country for the purpose of assessing his claims for protection.

26. The applicant wrote on his protection visa application that he is making protection claims against both Bangladesh and [Country 1]. He does not hold [Country 1] nationality. At the time of lodging his protection visa application, he held [Country 1] multiple entry visa valid until 9 September 2015. That entry permit has now expired, and there is nothing to suggest that the applicant has any further rights to enter and reside in [Country 1]. It is therefore unnecessary for the Tribunal to assess whether the applicant had in the past safe third country protection in [Country 1], within the meaning of s.36(3). The Tribunal notes, however, that the applicant’s claims against [Country 1], namely that AL-linked agents continued to pursue him there, are potentially relevant to his claims against Bangladesh, insofar as they are intended to demonstrate the extent of the ruling AL’s adverse interest in him.

    CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS

    Credibility of the applicant’s claims and evidence

27. The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

28. In the present case, it was difficult to obtain any clear overview of the applicant’s claims, even from his brief comments on his application form and his three-page statement of claims, of his past experiences in Bangladesh. He tended to blur his own personal (claimed) experiences with generalised statements; there were several instances of exaggeration or misrepresentation; and the events were sometimes undated, or in no obvious chronological or sequential order. Sometimes, it was only through further enquiry and seeking to match the applicant’s claims with (purported) official or medical documents that the Tribunal was able to clarify the applicant’s claims.

29. The Tribunal appreciates that there may be reasons why protection visa applicants provide an unclear narrative, including the effect of past trauma and/or different cultural traditions. In the present case, however, the applicant has tertiary education, and he prepared his protection visa application with the assistance of a registered migration agent.

30. The Tribunal formed the view that the applicant’s statutory declaration of 4 June 2015 was prepared hastily, and with little care. This is apparent not just from the disjointed narrative in the statement of claims, but several instances where the applicant appeared nonplussed when the Tribunal read to him the contents of the statement. For instance, he indicated that the statutory declaration was wrong in stating that he was subject to false charges in August 2006; that he approached the police for protection, only to find that they instead verbally abused and mistreated him; and that there were multiple attacks on him and his family (implicitly, while he was still in the country). Even allowing for the possibility that the applicant’s then solicitor may bear some responsibility for the poor quality of his statutory declaration, the Tribunal considers that the inconsistencies between his written and oral evidence are significant. The applicant’s fairly casual responses at hearing, when asked to comment on these matters, add to the Tribunal’s concerns. These raise broad questions about the truthfulness of his protection claims, and indeed his credibility.    

31. The applicant’s conduct after arrival in Australia is also relevant. He arrived in early March 2015[3], and sought protection two months later. The applicant told the Tribunal that he initially tried to apply for a student visa, but was not permitted to make an application. A friend then suggested that he seek protection, in light of his problems in Bangladesh. The applicant acknowledged that his decision to first try to apply for a student visa suggested he was exploring options to stay in Australia, rather than responding to imminent threats in Bangladesh (and, allegedly in [Country 1]). However, he explained that he was hoping that there would be political changes in Bangladesh in the near future, namely that the government would hold fresh elections in 2015 or 2016 (as the 2014 elections were seen as illegitimate). He did not provide further details, or explain how these anticipated changes to the political landscape influenced his decisions in March and April 2015, but not beyond that. The Tribunal formed the view that this was an improvised response, and not based on fact.

    [3] As indicated on his protection visa application form, and confirmed orally at hearing.

32. In the Tribunal’s view, the applicant’s conduct after arriving Australia adds to the doubts about his need for protection.     

    Mental health issues

33. At the hearing, the applicant said that he feels that he has a mental health problem, and intends to go to a doctor. He had been feeling stressed and confused in the days before the hearing. It had been affecting his daily life; for instance, he has been making mistakes at work. The applicant said that he has not sought medical assistance in Australia during his stay of more than 3½ years to date, commenting briefly that it was not usual in his culture to seek help for such problems (implicitly, mental health issues).

34. The Tribunal accepts that the applicant’s unresolved migration status or the prospect of a hearing may have caused him some stress. It observed that he appeared nervous at the beginning of the hearing, and made allowance for this during the discussion. However, the Tribunal has only the applicant’s oral evidence about his mental health concerns. In its view, this appeared to be somewhat rehearsed, as did his observation that cultural factors had inhibited him from seeking medical treatment. The Tribunal is not satisfied on the available material that he has any mental health issues that go to his capacity to participate effectively in a Tribunal hearing; or that support the veracity of his protection claims.

35. The Tribunal’s detailed assessment follows.

    The applicant’s involvement with the Jamaat-e-Islami/Islamic Chhatra Shibir in Bangladesh

36. The applicant claims to be support the JeI, and to have been actively involved in its student wing, the ICS, from around 2005.

37. General country information indicates that JeI is the largest Islamist political party in Bangladesh. It is committed to the creation of an Islamic state adhering to sharia, and the removal of ‘un-Islamic’ practices. It has been a traditional ally and coalition partner of the Bangladesh Nationalist Party (BNP), currently the main opposition party. The Bangladesh authorities have targeted the JeI. In August 2013, the High Court deregistered it as a political party. From late 2013, a number of JeI leaders have been executed following their convictions on war crimes.

1. The Bangladesh Islami Chhatra Shibir (ICS) is JeI’s student wing, one of South Asia’s largest Islamist student organisations. It has a notorious reputation for violence. The International Crisis Group noted in April 2016, for instance, that while political violence is prevalent in all the parties’ student and youth wings, ICS ‘poses unique law enforcement challenges’, as its violence ‘is different in brutality, if not volume, from that of other parties’ youth wings’.[4]   

   [4] International Crisis Group: Political Conflict, Extremism and Criminal Violence in Bangladesh, Asia Report No. 277, 11 April 2016, citing “Shibir ‘cuts’ BCL leader’s tendon”, Bdnews24.com, 31 October, 2013.

2. Attraction to JeI: The applicant gave background information about his attraction to the JeI and the ICS. For the main part, he described their goals in terms of general benefits to the population.

   §   In his statement of claims, he described the JeI and ICS as a political movement that tried to assist the poor people of Bangladesh; that advocated for those who had suffered at the hands of government officials and security forces; that addressed the concerns of the young and the poor; and that provided training for young men and women to be law abiding citizens.

   §  The applicant echoed these sentiments at hearing, explaining that the JeI and ICS encouraged students to focus on their study, and stay away from drugs and violence; they provided scholarships (although the applicant said he personally did not require financial help); and they guided people towards truth and honesty. Asked how the JeI differs from other parties, which also express lofty goals and policies, the applicant replied that the other parties have good ideologies on paper, but once in power, they engaged in violence and extortion.

   §  The applicant did not mention JeI’s Islamic goals until prompted. The Tribunal then asked the applicant about ICS’s ‘5-point agenda’, as stated in the English version of its official webpage.[5] These are listed as (1) Dawah (call to Allah); (2) Organisation; (3) Training; (4) Islamic education movement and student-oriented problems; and (5) Establishing Islamic social order. The applicant replied that he knows some of them, like ‘justice’, ‘truth’ and ‘betterment of the country’. In further exchange, he showed his understanding of the word Dawah, but when prompted on some of the other principles, he spoke about their literal meaning (such as ‘organisation’), rather than the way the ICS expressed these concepts within its Islamic agenda.

   [5][5] Bangladesh Islami Chhatrashibir:

3. The Tribunal takes into account that the applicant may have been a little nervous at hearing. It appreciates, too, that asylum seekers seeking permanent residency in Western countries may be reluctant to be drawn into discussion of their support for Islamist values, or, in the case of the ICS, their association with a reputedly violent group. And it recognises that a person may have a genuine attraction to a party without a deep understanding its ideology. However, the applicant’s vague and repetitive evidence about the JeI’s and ICS’ policies strongly suggest that he lacks insight into and personal involvement with these groups.  

4. Family background: The applicant said that his family are Muslims. For his part, he prays regularly and used to go to the mosque every Friday, or at least tries to. His family have no past connections with JeI as a political party, but as a general rule they prefer the BNP or JeI. As for their reaction when he joined the JeI, he said that they used to see him praying five times a day (implying that they noticed he was becoming more observant and hence leaning towards Islamist parties), but they did not comment. He implied that he had not actually disclosed any political affiliation to family or friends.

5. Admission to the JeI/ICS: The applicant said that to join ICS, he had to study the Koran and hadith (record of the traditions, or sayings of the Prophet Mohammed). He did not provide details of the process of joining the ICS, such as membership or documentation.

6. Political activities: The applicant claimed that, from the time he joined JeI/ICS in 2005, he used to take part in various demonstrations; speak to members of the public to promote the party; motivate them to participate in party gatherings; and participate in disaster relief and other welfare programs delivered in the name of the party.

   §  In December 2013, he was appointed [Official 1] of the ICS in [Town 1] (his home area). He referred to the page that he submitted in English, on ICS letterhead, purporting to list the [members] in the ICS [Town 1] chapter. He seemed familiar with the names on the list, and commented that he and two others on the list lived outside the local area.

   §  Asked why he joined the ICS committee in [Town 1], rather than in Dhaka, where he was living, the applicant said that he had some contacts with the ICS in Dhaka, mainly in connection with planned public protests and the like. He did not directly address why he opted to join the ICS in his home area, or how he maintained a profile or influence there if he returned there only a few times a month.

7. Overall, the Tribunal found the applicant’s account of his activities to be superficial, and lacking in the kind of detail or observations that would indicate personal involvement. The Tribunal finds the English language list of purported local ICS office bearers to be of little probative value. While the applicant knew some of the names on the list, there is there is no corresponding original text (in Bengali), and no context or corroborative evidence to show that these named individuals actually held ICS positions in [Town 1].

8. At hearing, the Tribunal noted that there had been numerous press reports indicating concerted government action against JeI and BNP figures in [Town 1] (as well as other areas). [Details deleted].[6] The background to this had been the sentencing to death of JeI leader and popular preacher, Delwar Hossain Sayedee, in February 2013, for war crimes. This, in turn, had prompted countrywide protests by JeI/ICS supporters, and violent clashes that left hundreds dead. The applicant appeared familiar with these events, but commented briefly that he was in Dhaka at the time (and hence, not directly affected by the round-up of JeI people in [Town 1], despite his claim to have been active in that area).   

   [6] [Source deleted]. 

9. The applicant presented to the Department and the Tribunal a range of press clippings, photographs and protest messages that appear to have been downloaded from the internet. These variously show protest activities, instances of police brutality (some of which are graphic), arrested persons and photographs of armed young men. At hearing, he confirmed that he did not take these photographs himself or have any direct connection with their content. Rather, he had submitted them as general illustrations of what happens in Bangladesh.

10. The Tribunal explored whether – given the applicant’s presentation of photographs and other material on politics and associated violence in Bangladesh generally – he had enquired about any media/independent reporting on the ICS’ activities in and around [Town 1], and/or whether he had any contemporaneous evidence (such as photographs or correspondence) showing his own involvement. He replied briefly that he had no further material. In the Tribunal’s view, he appeared uninterested in whether the ICS in [Town 1] had attracted any media or similar attention. Similarly, he did not appear to have turned his mind as to whether he or any political friends might have evidence relating to his past own activities. Overall, the applicant’s apparent lack of interest in developments or media reports of JeI/ICS activity in [Town 1] (Bogra) strongly suggests that he has no genuine affiliation with this group, in Bogra or elsewhere. Similarly, his lack of enquiry as to whether there is evidence of his own past activity strongly suggests that, in fact, no such evidence exists.

11. In terms of his broader political interests, the applicant said that he has a voter ID card, but that he had only voted once, in local (union elections). He commented that his party did not participate in the 2014 national parliamentary elections. Asked which candidates he favoured in the 2008 national elections, the applicant named some persons, but did not appear confident in his response. The Tribunal did not gain any sense that – aside from his claimed involvement in JeI/ICS - the applicant is motivated to engage in any political discourse or activities. 

12. Ongoing interests or contacts: The Tribunal explored the applicant’s current contacts with ICS or JeI supporters (including to see whether they might have photographs or other material that showed his past work or current interests). He said that he sometimes has contacts with political friends in Bangladesh, but many of them have been harassed or killed; and others have decided to settle down and have families. He provided no further details, and showed no real interest in engaging further with this line of enquiry.

13. Asked whether he expressed his political or religious views in social media such as [social media], or other platforms, the applicant said that he avoids posting political material on-line, as he worries that his mother might be put in danger. The Tribunal accepts that, in Bangladesh’s current political climate, a person might feel inhibited or unsure about expressing overt political support for JeI/ICS on publicly available social media pages. Even so, there are less obvious ways in which a person’s political or social leanings might become apparent, such as references to Islam, support for conservative social views, or in private posts or messages. The applicant has provided no persuasive evidence that he has signalled such leanings, other than in the context of this application.  

14. The applicant presented two witnesses, [Mr A] and [Mr B]. He said that he had known them for about two years (hence, only in Australia), and they know his ‘mentality’. They have seen him attend political meetings and make speeches at meetings of the BNP 20-party alliance.

15. [Mr A] confirmed that he and [Mr B] are involved in the BNP group in Australia known as [a group]. It is one of several BNP groups in Australia. He said that the BNP and JeI are alliance partners, and JeI/ICS supporters are welcome to attend BNP meetings. [Mr A] said that the applicant had indicated his political views, and sometimes went to BNP functions. [Mr A] explained that the ruling AL had targeted the BNP and JeI following the 2008 parliamentary elections, but he did not have insights into (and evidently had not asked about) the applicant’s experiences in Bangladesh. The applicant and [Mr A] both referred to [Mr B] as a ‘potential leader’, i.e. a person who might in future play a larger role in the BNP Australia (‘[a group]’) branch.

16. The Tribunal accepts that [Mr A] and [Mr B] may have welcomed the applicant to BNP gatherings, and taken at face value his account of his political interests (including his support for JeI and ICS). In these circumstances, the Tribunal takes into account [Mr A’s] and [Mr B’s] evidence about the applicant’s participation in activities in Australia and the way in which he has presented himself as a supporter of the BNP-led alliance. However, it considers this evidence to be of little probative value in assessing whether the applicant actually shares their ‘mentality’, that is their political support for the BNP. And it sheds no light on the applicant’s past (claimed) profile and experiences in Bangladesh.

17. Taking all of the above concerns together – in particular, the applicant’s scant knowledge of JeI/ICS policies; his vague, unsubstantiated claims of past activism; and his lack of demonstrated activity and engagement in political activities in Bangladesh – the Tribunal does not accept that he supports JeI/ICS, in Bogra, Dhaka or anywhere else in Bangladesh; or that he has any degree of political opinion or engagement that motivates him to support one party over another.

    Experiences in Bangladesh before January 2014

18. The Tribunal has rejected the applicant’s claim to be a JeI supporter, and to have been an ICS activist and office holder in Bangladesh. It follows that the Tribunal does not accept that he suffered any harm for reason of his JeI/ICS membership; and that there are serious doubts about his credibility as a whole. Even so, the Tribunal considers it appropriate to record and consider the applicant’s claims of past harm, for instance in order to assess whether he may have been targeted for related reasons (such as perceived support for the ICS) or whether there are other factors relevant to an assessment of his prospects if he returns to Bangladesh.

19. Most of the applicant’s claims of past harm relate to the period after January 2014, about the time that he completed his [second course] in Dhaka and that the national parliamentary elections were held (5 January 2014).   

20. In his written statements, the applicant referred to Bangladesh government officials (such as the police) having pushed him, verbally abused him, and detained and mistreated him, including after he once sought their protection. His statutory declaration also stated that in August 2006, someone lodged a false case against him, accusing him of attacking innocent people and destroying their homes.

21. At hearing, the applicant said that, as an ICS activist, he was caught up in fighting on three of four occasions, when attending meetings or processions. The Tribunal put to him that ICS (‘Shibir’) was notorious for its violence. It drew, among other things, on the observation from a 2014 report[7] which stated: “Newspapers often report about violence between Shibir activists and activists of the AL’s Chhatra League or the BNP’s Chhatra Dal. The Shibir activists are known to be militant, and violent. Newspapers frequently report about a particular kind of Shibir violence, i.e. cutting the tendons of their opponents. All through 2013 Shibir activists were in the forefront of creating countrywide violent attacks against security personnel and innocent citizens to thwart the war crimes trials.” The applicant said that student activists from the AL, the BNP and the police used to join forces and attack ICS groups at will. This happened to him on two or three occasions in Dhaka, and once in Bogra, in 2014. He suffered cuts or scratches in these attacks, but escaped with no further harm.

    [7] Rounaq Jahan, Political Parties in Bangladesh, CPD-CMI Working Paper Series.

22. The Tribunal asked about other references in his statements, to ‘constant threats’. He replied that many of his friends were arrested, or disappeared after being in police custody. He learned that he was on a hit list, and believes that he could be subject to such harm any time. Again, these broad comments did not appear that this related to any particular incident, or point in time. Rather, they appeared to be generalised claims about his experiences as an ICS activist.

23. The Tribunal asked about the claim that in August 2006, he was subject to false claims of having attacked innocent people and destroyed their homes, following which the authorities detained him. The applicant replied briefly that there had been no such incidents in 2006, and it has been a ‘mistake’ to record that in his statutory declaration. Given the similarities with the claimed false charges in early 2014 (namely, the alleged attack on [Mr D] and the arson attack on his home), the Tribunal assumes that this is a reference to that later claim.

24. In sum, the applicant claims that between 2005 and 2014, he was involved in a number of scuffles or street fights with the police and political opponents which resulted in some minor cuts and scratches, but nothing further. The applicant referred to other forms of harassment and targeting, often without clear timeframes, but it appears from his evidence as a whole that these relate to events after the 5 January 2014 national parliamentary elections.

25. The Tribunal has found above that the applicant was not a member of JeI or ICS, or associated with these or other political groups. Moreover, it found his account of his adverse experiences in the period from 2005 to early 2014 – a period of more than eight years – to be uncertain, changeable and unsubstantiated. And, as discussed at hearing, they do not sit well with his study and employment history during this period. In light of these concerns, the Tribunal does not accept that the applicant was the target of any harassment, physical mistreatment, intimidation or any other harm, at the hands of the Bangladesh authorities, AL activists or others, during this period.

    Adverse experiences in Bangladesh after January 2014

26. The applicant claims that from January 2014 until his departure for [Country 1] in August 2014, there were several serious incidents, against a background of more systematic harassment and torture.

27. Piecing together the incidents referred to in his written statements, as clarified or amended at hearing, these claims include the following:

    §   [In] January 2014, AL cadres brought a false case against the applicant, claiming that he had attacked a [Mr D] at home, and tried to kill him and his family.

    §   In March 2014, the applicant returned to from Dhaka to Bogra to participate in ICS activities. AL cadres attacked him, and he suffered injuries requiring a week in hospital. 

    §  The Bangladesh authorities put the applicant on a [hit] list, in his capacity as the ICS [Official 1], of [Town 1] Upazila.

    False case:  Bogra, January 2014

28. At hearing, the applicant confirmed his claim that [in] January 2014, a false case was brought against him (and others), based on alleged events on 5 January 2014, the date of the national parliamentary elections. He said that the allegations were entirely fictitious. The discussion about the false case and supporting documentation covered, in summary:

    §   The applicant submitted copies of a complaint from [Mr D], dated [January] 2014, and a purported First Information Report, both with poor quality English translations. These name the applicant as one of fifteen named accused, with an estimated 200-300 other, unnamed ICS persons alleged to have participated in the actions. They are alleged to have thrown explosives and petrol bombs at [Mr D’s] house, resulting in its complete destruction. The estimated cost of damage was BDT [amount][8]. 

    §  The applicant told the Tribunal that, at the time the false charges were laid, he was moving around to different places, as a precaution. The Tribunal noted that the AL came to power in late 2008, and the applicant had successfully completed his studies in the period after that. It was therefore unclear why he was moving around prior to (allegedly) learning about the false charges in January 2014. In response, the applicant said that he did not have immediate problems during his studies and, in any event, he did not have to attend classes in person. He suggested that the AL harassment and arrest of opposition supporters grew worse over time (and, implicitly, especially before elections).

    §   The Tribunal alerted the applicant to country information about the available of fraudulent documentation in Bangladesh, and in that context asked how he came to receive copies of [Mr D’s] complaint and of the FIR. He said that the documents were sent to his village home, and the ‘party office’ (JeI) office also received copies. His [brother] sent them to the applicant in Australia.

    §   Asked whether there had been any further action, such as an arrest warrant or court dates, the applicant said that he does not have any further documents and is not sure if anything else has occurred. It appeared from his responses that he has made no enquiries, through his family, any political party or otherwise. Indeed, it appeared that he had not turned his mind to this.

    §   In response to further questions, he said that his mother had learned that some people had come to their village home (implicitly, enquiring after the applicant). He added that his mother spends time in [Town 1], as well as visiting the applicant’s [brother] in Dhaka. He said that she continues living in the village. He added that she is safe there, as no one would harm or harass an elderly and unwell woman. (However, the applicant also claimed that he refrained from political commentary on social media precisely because he worried that his political enemies might harm his mother.) The Tribunal notes that, if someone had indeed coming looking for him in his mother’s absence, it  is striking that they do not appear to have pursued the matter any further with her, during her return visits.

    §   The applicant said, without specifics, that he knows some of the co-accused’s names. Responding to the Tribunal’s questions, he said that he tried to make contact with some of them in the period from 2014 to 2016. He said that, to his knowledge, there were no media or similar reports about the allegations (for instance, the torching of [Mr D’s] homes).

    [8] Approximately $[amount] at current exchange rates.

1. The Tribunal has numerous concerns about the truthfulness of this claim, and the weight that can be placed on the supporting evidence. First and foremost, the Tribunal has rejected the applicant’s claim to have been a JeI/ICS activist. Second, the Tribunal places minimal weight on the purported police/court documents as independent corroboration of this claim. The applicant was vague and/or unforthcoming about the provenance of these documents, such as who ordered or requested them. He merely stated that his [brother] had sent them to him in Australia, after they had arrived at the family home. Third, the applicant appears to have relied on these documents, without turning his attention as to whether there was any further police or court action. It was only in response to the Tribunal’s questions, and then in an improvised manner, that he said that someone had come to the village home looking for him. Finally, the applicant’s return to Bogra in March 2014 (see immediately below) seriously undermines his claim to have been subject to politically motivated false criminal charges there, to have been well-known for his political profile; and to have lived in fear during this period.      

2. In light of these concerns, the Tribunal does not accept that the applicant was subject to any false charges in Bogra in January 2014; that there were any associated allegations of arson, property damage or attempted murder; that the authorities there came looking for him at his family home; that he had to move around and take other precautionary measures; that he lived in fear; or that there were any associated death threats.  

   Physical attack: Bogra, March 2014

3. The applicant wrote that on 27 March 2014, AL cadres ‘harassed and tortured’ him, by which he appears to have meant a physical assault. A doctor examined him after the attack, and he was in hospital. At hearing, he expanded on this.

   §   The applicant told the Tribunal that he had gone back from Dhaka to Bogra, to participate in a local political event. Asked why he was back in Bogra if, as claimed, the authorities had launched a campaign against JeI/ICS and he was subject to false charges, the applicant replied that local people persuaded him to return and participate in political activities. He said that he was active and well-known there (without explaining why, in these circumstances, he would risk attracting the attention of the police or AL cadres).

   §   The applicant wrote that a group of AL cadres, perhaps four or five, attacked him with sticks, leaving him with a fractured bone. He was hospitalised for about a week.  He presented a hospital certificate which referred to ‘multiple formatic injury’[sic], which the Tribunal understands to mean ‘multiple traumatic injuries’ In response to questions, he said that (presumably in addition to the ‘fracture’), he suffered bruises, cuts and scratches; and he was in pain.

   §   The applicant claims he was treated in hospital in Bogra for one week, and he presented a discharge certificate from the surgery department, dated [April] 2014. He said that medical staff dressed his wounds, gave him ointments and injections, and monitored his temperature. The discharge certificate does not record any actual surgery or treatment, only medications. The applicant confirmed at hearing that he received pain relief, an antibiotic and vitamin supplements.   

4. In his statutory declaration, the applicant wrote that after receiving medical treatment, he reported the attack to the police, but they took no action. However, he wrote on his protection visa application form that he never sought police protection because he does not trust the police, and because they demand money, which he did not have. At hearing, the applicant confirmed that he did not go to the police. At one point, he said that his mother reported the incident to a police. Later in the hearing, however, he commented that he is not sure if anyone approached the police. The JeI/ICS leadership knew about the incident, but they did not go to the authorities.

5. In addition to the adverse findings above – namely that the applicant was not affiliated with JeI/ICS in Bangladesh – the Tribunal has further concerns about the claimed attack, even as presented.

   ·     The applicant’s account of why he returned to Bogra (if he was already subject to false cases, and ongoing targeting), exactly what injuries he suffered (whether it was indeed a fracture, or multiple fractures, or superficial cuts and bruises); what treatment he received during a week-long hospital stay; and whether or not he approached the police was confused, inconsistent and, in the Tribunal’s view, often improvised. The Tribunal is not satisfied that it reflects the applicant’s own past experiences at all.

   ·     Even if the Tribunal were to accept the medical certificate at face value, it sheds no light on whether the applicant’s injuries included an actual fracture, or superficial wounds; whether they are consistent with multiple blows from sticks or similar weapons, inflicted by four or five men; whether it arose from a physical attack, an accident or some other incident; or indeed if there is any political, criminal or other motivation behind any attack.

   ·     The applicant struggled to give meaningful details or contextual information about these claims, such as what steps his political colleagues took to publicise the incident. Again, the Tribunal formed the view that he had not really thought about this. 

6. In light of these concerns, the Tribunal does not accept that the applicant was subject to a politically motivated attack in March 2014; or that there was any incident requiring police protection. It follows that the Tribunal does not accept that the applicant was denied police protection, or felt unable to seek it; or that he was living in fear. The Tribunal rejects all associated claims.

7. The applicant told the Tribunal that after this incident, he returned to Dhaka. He mainly stayed at home and tutored, but he was also managed to continue attending at least some political meetings. He implied that he did so with a heightened degree of caution, or an urgency to leave Bangladesh. However, given the above assessment and findings, the Tribunal finds that he was not living in fear, taking any precautionary measures (such as spending time moving around), and he did not modify his conduct (as the Tribunal has previously found that he was not in fact engaged in JeI, ICS or any other political activities). The Tribunal rejects all associated claim, including that the applicant believed he was on a [hit] list, or subject to ongoing threats and associated psychological harm.

8. The Tribunal finds that the applicant departed Bangladesh to study in [Country 1] in August 2014, for reasons unrelated to his protection claims.

   Experiences in [Country 1]

9. As noted above, the applicant arrived in [Country 1] in mid-2014 and, following a brief visit to [Country 2], travelled to Australia in early March 2015. He claims that while he was in [Country 1], AL cadres located and continued to target him, making his continued stay there untenable.

10. The applicant claimed that [in] December 2014, AL activists physically attacked him in [Country 1], leaving him with injuries. At hearing, he said that there were many Bangladeshi students on campus at [a] University, and AL student activists (from the Chhatra League) dominated them. The Tribunal explored whether there was any documented evidence about the AL’s political activities on [Country 1] campuses. He replied that he had not researched this, and did not know.

11. As for his own circumstances, the applicant said that at university, he soon got to know most of the students. They in turn came to realise that he was an ICS supporter. Asked how this occurred – whether it was through his appearance or other features – the applicant replied vaguely that he did not participate in some of the other students’ activities, referring vaguely to ‘food and drink’. This led to the students ridiculing and taunting him, and eventually turned to physical violence. The Tribunal noted that [Country 1] is a Muslim-majority country, and sought further details as to what the applicant did to attract ridicule or adverse treatment as an Islamist. In its view, he had not in fact thought much about this claim. The Tribunal is not satisfied that he was speaking from personal experience, or that he suffered any such taunting or physical violence.  

12. The applicant claimed that he was unable to secure protection in [Country 1].

    §   He wrote in his statement of claims: “I was […] unable to seek protection in [Country 1] as I had tried but no one was willing to assist.”

    §   At hearing, he said that he never approached [Country 1] police (because of his past experiences); that he had never heard of the United Nations High Commissioner for Refugees (UNHCR) or other NGOs; and that he was new to the country, and had not found out whether there were Islamic or other like-minded groups who could help him (even on campus, where he had claimed to have got to know most of the students). The Tribunal found the applicant’s account to be unconvincing.

    §   Asked why he thought that [Country 1] authorities or university administration would tolerate a group of violent foreign students on campus, the applicant said that he was not sure. He said that there were many Bangladeshi students, and AL student activists were intent on exerting their dominance in any environment.

13. The Tribunal disbelieves the applicant’s account of his experiences in [Country 1]. This flows in part from its assessment and findings above, namely that he was not involved in any Islamic groups in Bangladesh, or have any related political interests. Also, the Tribunal found his claims of how he attracted adverse attention in the first place, how AL student activists bully compatriots in [Country 1], without apparent consequences), and his failure to seek the support of the police or any Muslim groups, unconvincing. The Tribunal considers that the applicant fabricated this claim to explain why, after less than a year in [Country 1], he travelled to Australia.   

    Activities in Australia

14. The applicant claims that he has been involved with one of several BNP groups in Australia, and provided several photographs that appear to show him at political or social functions in [Australia]. Some of these include banners with the image of BNP leader Begum Khaleda Zia. As noted above, [Mr A] and [Mr B] confirmed the applicant’s attendance at such meetings, and indicated their acceptance that he shares their ‘mentality’ and political views. The Tribunal accepts the applicant’s claim that he has attended several functions, including at a [restaurant in a location]. It also accepts that he may have taken a microphone and briefly spoken at one of these functions and, as the applicant suggested, that there is footage of this.

15. The applicant emphasised, as did [Mr A], that JeI forms part of the broad coalition of parties that the opposition BNP has led, and that JeI and BNP share at least some Islamist tendencies (albeit with different emphases and ultimate goals).

16. The Tribunal explained to the applicant the operation of s.91R(3) of Act, which requires it to be disregard his conduct in Australia (in assessing whether he is a refugee), unless it is satisfied that he engaged in it otherwise than to strengthen his claim to have a well-founded fear of persecution for a s.5J(1) reason. The Tribunal recognises that in many cases, an applicant may contact expatriate groups (including political groups) in Australia for multiple reasons, including for social contacts and community support. In the present case, however, the Tribunal has found that the applicant has no real political interests, and it considers that he has approached the BNP solely to bolster his chances of securing protection in Australia. The Tribunal is not satisfied that he engaged in this conduct otherwise than for the purpose of strengthening his claim to have a well-founded fear of persecution for a s.5J(1) reason, and the conduct therefore falls within the scope of s.91R(3) of the Act.   

    Summary of findings

17. The Tribunal accepts that the applicant is a practising, though not devout Muslim. However, it does not accept that he is a supporter of any conservative Islamist groups, including the JeI or ICS; that he has ever been a member of either group; that he was an [official] in the ICS; or that he has engaged in any activities, in Bangladesh or [Country 1], that led him to be perceived as a supporter of such political or ideological groups.

18. The Tribunal does not accept that the applicant has any political opinion in favour of such Islamist groups; or the opposition BNP; or any groups. The Tribunal accepts that the applicant has participated in some activities of one BNP group in Australia; that its members have welcomed him to their meetings; and that they have accepted at face value his stated political interests. However, the Tribunal finds that the applicant engaged in these activities for the sole purpose of strengthening his claims to have a well-founded fear of persecution for a s.5J(1) reason, and that this conduct falls within s.91R(3) of the Act.

19. Having found that the applicant has no political interests or profile in Bangladesh, the Tribunal also does not accept that he has been subject to false (politically motivated) criminal charges; that he was physically attacked in Bogra in March 2014; or that he was also physically attacked in [Country 1] in December 2014. The applicant presented various related claims. These included that he lived in fear; that he had to modify his political activities; that he needed police protection, but was unable to approach them; that he fears for his mother’s safety to this day; and that he genuinely fears returning to Bangladesh for any reason.

    ASSESSMENT: REFUGEE CRITERION

20. The Tribunal now assesses whether, in light of the above findings of fact, and having regard also to any other relevant factors – in particular, country information and the applicant’s future conduct – there is a real chance of him experiencing serious harm amounting to persecution if he returns to Bangladesh for reason of his political opinion (actual or perceived), or any other reason enumerated in s.5J(1). For the purpose of this assessment, the Tribunal disregards the applicant’s conduct in Australia: s.91R(3).

21. The applicant claims to fear that AL leaders in Bangladesh, at various levels, government agents, and AL activists will pursue false criminal cases against him; imprison, mistreat and possibly kill him; and subject him to ongoing assaults, threats and associated psychological harm if he returns to Bangladesh. They will target him because of his support for and past involvement with JeI and ICS, and his adverse profile. He told the Tribunal that he intends to become involved in politics once again if he goes back to Bangladesh.

22. The Tribunal has rejected above the applicant’s claims to have been involved with JeI and ICS in Bangladesh; to be subjected to ongoing false criminal charges; and to have been assaulted and threatened in the past.  It finds that he has no adverse profile in Bangladesh, based on past events, his activities in Bangladesh or [Country 1], or any perceptions of him. The Tribunal does not accept that the applicant has any political opinion or engagement that has in the past, or that will in the future, motivate him to become involved in politics, for the JeI, the BNP or any other political group. It finds that he is not subject to any past or ongoing criminal matters, including politically motivated false charges.

23. The Tribunal therefore finds there is no real chance of the AL government, its agents or AL party activists targeting the applicant for reason of any political opinion (actual or imputed), or any other of the reasons enumerated in s.5J(1).  

24. Failed asylum seeker: The applicant claims to fear that the Bangladesh authorities will torture or even kill him if they discover that he sought protection in Australia. The Tribunal assured him that the Australian authorities will not reveal either the fact of him having sought protection, or what his claims are. Nonetheless, it accepts as plausible that the Bangladesh authorities may suspect that he applied for protection in Australia.

25. The Tribunal put to the applicant country information that large numbers of Bangladeshis live abroad.[9] It also noted advice from the Department of Foreign Affairs and Trade (DFAT) in its latest country report: ‘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 or war crimes in absentia’.[10] This assessment is consistent with information from other sources, and the Tribunal has found nothing to contradict or qualify it. The applicant noted this information without comment.

    [9] The number of Bangladeshis abroad is uncertain. The United Nations Population Division estimated that some 7.5 million live abroad: "International migrant stock 2015: graphs: Twenty countries or areas of origin with the largest diaspora populations (millions)": This figure does not appear to include the large number of Bangladeshis in India, numbering at least 3 million. Significant numbers of Bangladeshis live in Western countries, including the UK, USA and Italy.  

    [10] DFAT: Country Information Report Bangladesh, 2 February 2018, para. 5.23

26. In the present case, the Tribunal finds that the applicant has no adverse profile with the Bangladesh authorities, for reason of his political opinion (actual or imputed), for any other s.5J(1) reason, or indeed for any reason at all. It finds that, while there is a small chance that Bangladeshi officials may suspect that he sought protection in Australia, there is no real chance of them targeting the applicant and subjecting him to serious harm (including detention, torture or killing, as he claimed) due to his having sought protection in Australia.

27. The Tribunal has considered the applicant’s claims and evidence individually and cumulatively. It is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to Bangladesh.

28. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    ASSESSMENT: COMPLEMENTARY PROTECTION

29. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh. This assessment takes into account the factors mentioned above – such as its assessment of his experiences in Bangladesh and [Country 1], relevant country information and his future conduct – and also his conduct in Australia.

30. The Tribunal finds no substantial grounds to consider that anyone has reason to inflict significant harm on the applicant. This flows in large part from its findings of fact above, namely that he was not a JeI or ICS activist, was not subject to the adverse attention of the Bangladesh authorities (including the police), AL activists or other political rivals, or anyone else; that he did not suffer assaults, false criminal charges or any related harm (in Bangladesh or [Country 1]); and that he departed Bangladesh, and later [Country 1], for reasons unrelated to his protection claims.

31. Turning now to the applicant’s conduct in Australia, the Tribunal finds that he has attended a BNP group on a few occasions. It does not consider that his visits there; that any impression he may have made on [Mr A], [Mr B] or others; or any occasion when he has addressed participants at these political or social events will be of adverse interest to the Bangladesh authorities, the AL or anyone on his return to that country. In these circumstances, the Tribunal finds that there is no real risk that such persons will be motivated to inflict significant harm on the applicant.

1. Similarly, the country information discussed at hearing indicates that the applicant’s status as a failed asylum seeker does not cause the Bangladesh authorities to view him as a person of adverse interest, or to be motivated to harm him. 

2. The Tribunal concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of their life or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to Bangladesh.

3. Implicit in the applicant’s presentation, including his comments about Bangladesh’s political violence and the various press clippings that he submitted, is a broader concern about security and governance in that country. The Tribunal accepts that he considers the political and security climate in Australia – alongside general living conditions, and economic opportunities – as more favourable. However, the Tribunal is not satisfied that the applicant faces a real risk of ‘significant harm’ in Bangladesh, as a result of general conditions in that country. (In these circumstances, the Tribunal does not need to finally determine whether, if the applicant were to face a real risk of significant harm, it would be one faced by the population generally and not faced by him personally, and he would therefore be taken not to face a real risk of suffering significant harm, pursuant to s.36(2B)).

4. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm: s.36(2)(aa).

   CONCLUSION

5. 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).

6. 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).

7. 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

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

   James Silva
   Member

   
   

   ATTACHMENT A – RELEVANT LAW

   The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

   A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves 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.

   
   

August 2014.