1619421 (Refugee)

1619421 (Refugee) [2022] AATA 1787 (26 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619421
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Gabrielle Cullen
DATE:26 April 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 April 2022 at 7:50pm
CATCHWORDS
REFUGEE – Protection visa – Bangladesh – political opinion – member of Bangladesh Nationalist Party – fears harm from Awami League cadres – involved in Shramic Dal politics – fabricated claims and concocted evidence to achieve an immigration outcome – applicant is not a witness of truth –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 424AAA, 438, 499
Migration Regulations 1994, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 October 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Bangladesh, claims to fear harm on return because of his involvement in the Bangladesh National Party (BNP) and/or its affiliated organisations in Bangladesh and Australia.
The applicant arrived in Australia on [date] May 2016 on a Subclass 600 Visitor visa, granted on 29 March 2016 and valid to 2 June 2016.[1] He applied for a protection visa on 2 June 2016.
[1] As outlined in the Department decision attached to the Application for Review.
On 27 October 2016 the applicant was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision.
The delegate refused to grant the visa on 28 October 2016 on the basis that the delegate did not accept the applicant is a member of the BNP and even if it did accept he was, that he was only a rank and file member with no profile to attract the level of claimed persecution.
The applicant applied for review of the Department decision on 18 November 2016 and attached the decision of the Department.
The applicant appeared before the Tribunal on 28 March 2022 to give evidence and present arguments. The applicant was assisted with an interpreter in the Bengali and English languages. The applicant’s representative attended the hearing.
The applicant was given until 13 April 2022 to respond in writing to any of the s 424AA matters raised and to provide any further submissions he or his representative wished to make. On 11 April 2022 the applicant provided a written response to concerns raised.
The issues to be considered in this case are as follows:
·Is the applicant credible as to his claims?
·Does the applicant have a well-founded fear of persecution in relation to Bangladesh and meet the refugee protection provisions of the Act?
·Does the applicant meet the protection obligations under the complementary protection provisions of the Act?
CRITERIA FOR A PROTECTION VISA
The relevant criteria are outlined in an attachment at the end of this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following:
·The applicant’s protection visa application of 2 June 2016, the attached statement, and identity documents.
·Oral evidence provided at the Department interview held on 27 October 2016 and Tribunal hearing held on 28 March 2022.
·Work Permit issued by the [Country 1] to the Applicant [in] October 2014 and valid to [November] 2016 submitted by the applicant at the Department interview.
·Letter from [Mr A], [Position 1] BNP Australia dated [June] 2021 who claims he is aware the applicant was a member of the Bangladesh Jaytiyabadi Shramic Dal Dhaka [specified] unit, labour wing of the BNP and that he continues to participate in BNP activities in Sydney to foster Bangladeshi culture. [Mr A] notes he is aware the applicant has lodged a protection visa and that the applicant participated in anti-government rallies ad demonstrations to protest against the undemocratic and inhumane torture of political leaders. He submitted that to the best of his knowledge he has suffered severe violent acts by the ruling party activists and believes if he returns to Bangladesh his life is in jeopardy as with other members of the BNP.
·Post hearing submission received 11 April 2021 including answers to concerns raised at the hearing and a statement from the applicant.
·Department of Foreign Affairs and Trade (DFAT), DFAT Country Report Bangladesh 22 August 2019.
·Department of Home Affairs – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
Section 438
The Tribunal notes that a s 438 Certificate was issued regarding the Department’s internal working documents including the disclosure checklist and an internal record with no detail indicating that the applicant had departed a tour group on [date] May 2016. The certificate was issued on the basis that the disclosure of the information is contrary to public interest as the information relates to internal working documents and business affairs. The Tribunal is of the view that the certificate is not valid as this is insufficient for a claim of public interest immunity and the certificate does not identify the harm that would flow from the release of the information. At the hearing the Tribunal advised of the existence of the certificate, of its view that it is not a valid certificate and the information contained in it. It raised with the applicant via s 424AA the information which indicates the applicant absconded from a tour group. The applicant indicated that the information is correct, and the Tribunal noted it is in its view irrelevant as to its determination as to whether he is a refugee or whether he meets the complementary protection criteria.
Is the applicant credible as to his claims?
The applicant’s claims
In a statement attached to his protection visa application dated 15 December 2016, the applicant made the following claims
My father is a [occupation]. My mother is a housewife. I am the eldest son out of [number] children of my parents.
I was one of the poorest boy in the class and did have any abilities to continue my studies. As such I did end my schooling when I was [specified grade].
Afterwards I went Dhaka to find a job and I obtained an opportunity to work with a [factory] named [Factory 1]. When I was with this [company] I met a person named [name deleted] who inspired me to be involved in Bangladesh Nationalist Party(BNP) politics.
In 2005 I joined Jatiyatabadi Jubo and attended many demonstrations with the Party to support its programs.
In 2006 I became [Position 2] of the Jubodal of its [Town 1] committee. Gradually I myself involved heavily in politics.
After transferring power by Begum Zia to a caretaker government in aiming to constitute a Parliamentary election but this caretaker government was opposed by the Awami League and its ally.
Afterwards, a self-proclaimed army backed caretaker government was installed. As a result, most of the party leaders left the country or imprisoned by the hands of the caretaker government. I left Bangladesh for [Country 1] and later one year later I returned but the condition remained as same.
Then I returned [Country 1] and remained a couple of years in [Country 1] but I always I maintained membership with the party. I was attacked on number of occasions while I was at [Town 1].
I was subject to oppression by the Awami cadres. After my departure from Bangladesh a Parliamentary election took place in Bangladesh on 5 January 2014. My party the BNP did not participate in this election and did not participate in this election.
The Awami League and its ally are serious to oppress me and other members of the party. Most of my leaders are in jail or subject to jail now.
At this moment If I return home I will be persecuted
At the Department interview held on 27 October 2016 the applicant claimed to fear return including being killed by the Awami League on account of his involvement in the BNP. The applicant was further asked to explain what he meant by “I am involved in opposition politics”. The applicant responded by stating that he is a member of the BNP. The applicant was asked to clarify who will harm him and why if he were to return to Bangladesh and he indicated that he would be harmed if he were to return to Bangladesh by members of the ruling Awami League on account of his membership and support for the BNP.
As to when the applicant joined the BNP, he said he joined the student wing of the party while in college in 2004. He further stated that on dropping out of school he joined the labour wing of the party and in 2006 he joined the main BNP. The applicant was asked if he held any office in the party and he said that he did not hold any office in the party and was just an ordinary member of the party. The applicant was further asked if he had any evidence to substantiate his claim to be a member of the BNP. The applicant responded in the negative. He said he last attended a BNP function in 2006 and confirmed he last attended a BNP function during the caretaker government in Bangladesh.
The applicant was asked when he left Bangladesh for [Country 1]. The applicant responded that he fled Bangladesh to [Country 1] in 2008 as he did not feel safe. The applicant was asked if he has been living in [Country 1] since then. The applicant responded in the positive. The applicant was asked if since his arrival in [Country 1] he has returned to Bangladesh. The applicant responded that he returned to Bangladesh 3 times once in 2009, 2012 and 2015. The applicant was asked to explain why he returned to Bangladesh on 3 occasions despite his claim to fear for his life on account of his political opinion in that country. The applicant responded that he returned to find out if the situation in Bangladesh had changed. He was asked at the end of the interview whether he had anything else to tell and he answered in the negative.
The applicant provided to the Tribunal an additional statutory declaration dated 17 February 2022. He repeated evidence in his statement attached to the application for the visa but added that in 2005 he joined the Jatiyabadi Shramic Dal and in 2006 became [Position 2] of the Shramic Dal of its [Town 1] Committee and involved himself gradually in BNP politics. He stated that on 30 December 2018 there was a further vote rigging election in Bangladesh and the Awami League secured 98% of the seats. He claims the Awami League wants to oppress him and other members of the party and most of the young party leaders have been jailed, are in hiding or have escaped Bangladesh, avoiding kidnap and arrest by the Rapid Action Battalion (RAB). He claims the Awami League activists kill many BNP activists and implicate them in false criminal cases. He notes that dozens of BNP leaders have been kidnapped and disappeared at the hands of the RAB. He refers particularly to Chowdhury Alam, who was ward commissioner of Dhaka City Corporation and Elias Ali who was a previous MP. He refers to the false imprisonment of their party leader, Begum Ali, and the acting Chairman, Tareq Zia. He submits that BNP activists are scared to hold rallies as they will face arrest and torture by the RAB and police. He refers to the sanctions imposed by the USA on 7 of the top RAB officials but that the RAB continue to kill.
At the Tribunal hearing held on 28 March 2022, the applicant reiterated his claim to fear return based on his political involvement and activities. As to his political involvement he said and confirmed that after he finished his schooling at the end of 2005, he travelled from his home village in [Village 1] and worked for [Factory 1] in [Town 1], an area of Dhaka. He said the owner was already involved in the BNP and he told him to gather people, to protest and motivated him to become involved. He said he started protesting during the caretaker government and he confirmed it was the time of the military government which he said came into power in 2006/2007, then said 2007. He said his leader [was] taken into custody during the caretaker government. He also indicated the owner/boss where he worked was taken to prison for his political activities. As to his political involvement, he said he was a member of the Shramic Dal, which is the BNP’s labour organisation. He confirmed he became involved in politics after travelling to Dhaka and working as a [Occupation 1], where he became involved because of the urgings of his boss. He confirmed it was after he finished school when he was living in Dhaka when he first became involved in politics. He said he joined rallies and protests because his boss urged him to do so, and his boss sometimes gave him money to get others involved. He said he was just a member of the Shramic Dal and not the BNP. As to any roles he held he initially said he worked for his boss to promote the BNP activities, then said he was the [Position 2] of the Shramic Dal. He also said he was a supporter and promoter of the BNP, including promoting BNP candidates in elections. He confirmed he never became a member of the BNP.
He said when he returned to Bangladesh from [Country 1] in 2009, he was again involved in Shramic Dal politics and joined others in meetings and processions but the Awami League cadres did not like it and when asked whether he faced any difficulties he answered in the affirmative and said Awami League people attacked him and other members when moving around. He said it was everywhere when asked if he was only attacked at protests and processions and he said he was attacked 4 or 5 times with sticks. He said he only suffered minor injuries, but he was threatened with his life. He said he fled Bangladesh in fear.
As to his political activities while he lived in [Country 1], he said he kept in touch with those involved in party politics and would talk and chat with them. The Tribunal asked whether he has continued to be involved in Shramic Dal politics and he said he has not as too many are missing. He was asked a number of questions about the current activities of the organisation and BNP politics in the [Town 1] area, and he again referred to leaders being missing and in particular referred to [name deleted]. While the Tribunal questioned whether this was in fact the name of the local BNP MP prior to 2008 when the Tribunal asked for his name, it accepts as per the independent country information and the applicant’s later submission that the local member was also known by this name. He said there is no current existence of the BNP in the [Town 1] area.
He said when he returned to Bangladesh in 2011 and 2015 he did not involve himself in politics, lived in a rented place in [Town 1] and did not see his friends or family. He said he did not face difficulties as he was in hiding. He said he had to return to Bangladesh so he could renew his [Country 1] visa.
The Tribunal asked him about his involvement in Bangladesh politics since his arrival in Australia and he referred to the letter he had submitted. He said he met the author [Mr A] in Australia and he told [Mr A] about his political activities in Bangladesh. As to his involvement in the BNP Australia he said he attended meetings or anything when [Mr A] called. The Tribunal asked for specific events and further details as his evidence appeared vague and lacking in detail; he repeated that [Mr A] calls and then he goes to a meeting or an event. He said the President of the BNP Australia is [Mr A] and he did not know when he became President. The Tribunal noted the letter he had submitted notes [Mr A] as [Position 1].
The applicant’s representative indicated that a Bangladeshi national working in [Country 1] has to leave the country at the expiry of his visa otherwise he will be jailed.
The Tribunal questioned whether the applicant is a credible witness and outlined a number of concerns and inconsistencies in his evidence including via s 424AA. Where relevant these are outlined below. It questioned whether he is a genuine supporter of the BNP in Australia. It raised with him s 5J(6) and questioned whether he only became involved with the BNP in Australia and its activities solely to strengthen his claim for refugee status. It raised with him independent information that may indicate that he would not face a real chance of serious harm or real risk of significant harm due to his activities in BNP politics in Australia.
On 11 April 2022 the applicant provided a written response to the concerns raised which where relevant has been considered below. He also provided a statement indicating he had been working in Australia at a [company] since 2016, paying tax and studying to improve his English. He noted he is now the holder of his Green Ps. He requested the Tribunal consider all his circumstances including that he had been out of his country for many years and living in Australia for 6 years.
Assessment of credibility of claims
Having sighted a copy of the applicant’s identity documents, and on the basis of the applicant’s evidence at hearing, the Tribunal accepts that the applicant is a national of Bangladesh for the purposes of s 36(2)(a) of the Act. For the purposes of s 36(2)(aa) of the Act the Tribunal accepts that Bangladesh is the receiving country.
As to the applicant having faced the difficulties he claims in Bangladesh, for the reasons that follow the Tribunal does not accept that the applicant is a credible witness and suffered the harm or difficulties in his country for the reasons that he claims, which led him to leave Bangladesh and why he fears return. It follows it does not accept that he was ever involved in the Jubo Dal, Shramic Dal or BNP in the manner claimed or that he was harassed, threatened and physically assaulted by members of the Awami League for any of the reasons he claims. It finds his testimony to be inconsistent and lacking in detail as to these claims and it is of the view that he has fabricated claims and concocted evidence to achieve an immigration outcome.
Political involvement in Bangladesh until departure to [Country 1] in 2008
Central to the applicant’s claims as to why he fears return and why he departed Bangladesh is his political involvement before his departure to [Country 1] in 2008. However, for the reasons that follow, including numerous inconsistencies in his evidence between the Department and the Tribunal, the Tribunal does not accept he is a credible witness as to ever having been involved in the BNP or its associated organisations including the Jubo Dal or Shramic Dal in Bangladesh prior to his departure in 2008. This adds to the finding he is not a credible witness.
Firstly, at the Tribunal hearing the applicant said and confirmed he became involved in politics when he worked as an [Occupation 1] in Dhaka. He said that after he finished school in his local area of [Village 1] around the end of 2005 he then travelled to Dhaka and worked as a [Occupation 1] at [Factory 1]. He said his boss at [Factory 1] was heavily involved in BNP politics and as a result he became involved in BNP politics by becoming a member and then [Position 2] of the BNP’s labour organisation, the Shramic Dal. He said his boss urged and motivated him to become involved and he started protesting during the time against the caretaker government, which he believed came into power around 2006/2007 and then said 2007. He said and confirmed he was not a member of the BNP, only involved in an affiliate organisation, the Shramic Dal and confirmed he did not become involved in politics until after he finished school, when he travelled to Dhaka and began working as a [Occupation 1] in Dhaka.

However, of concern is that this account is inconsistent with evidence he gave at the Department interview. In contrast, he said to the Department:
·He was a member of the BNP in Bangladesh.
·He was involved in BNP politics while at school in 2005 and joined the BNP student wing in 2004 while at school and the labour organisation when he dropped out of school. He said it was a gradual process to joining the BNP and said from his school life he has been involved in BNP politics.
·He confirmed he was a member of the BNP and did not hold any position.
·He did not refer to any involvement in the Shramic Dal as [Position 2] of the [Town 1] despite being asked about his political involvement.
When the above inconsistencies were raised with the applicant at the Tribunal hearing the applicant repeated his evidence given at the Tribunal hearing that on completion of school, after he travelled for work to Dhaka in 2005 his boss told him to organise BNP political gatherings, attend rallies and meetings and that is how he gradually became involved in politics. The Tribunal does not accept this explanation as it does not explain the significant inconsistencies above as to when he became involved and in which BNP organisations.
In his post hearing reply, he indicated the following:
It's a general name for Bangladeshi politics, if any people or leader involved with any branch of BNP politics (Bangladesh Nationalist Party) then the general people title him/her as BNP worker or leader.
But when anyone ask a question about which branch he/she involved, then the person or leader discloses his involvement of branch, such as, Jubodaal, Shramikdaal, Chatradaal, Main branch of BNP etc.
At the time of interview with department of Immigration the case office asked me about my political involvement and name of the party, in reply I said, 'I was involved in BNP politics while I was in Bangladesh'. The case officer did not ask which offshoot of BNP I was involved while I was in Bangladesh.
The Tribunal is of the view if the applicant was involved in BNP politics including its affiliated organisations in the manner claimed, while at school in his home area or after he came to Dhaka, he would provide consistent evidence as to this involvement between the Department and Tribunal, which he has not. It is of the view that a person who has claimed to have been a leader and involved as he claims, would have been detailed and consistent in his answers. The Tribunal therefore does not accept his statement in his post hearing statement as explaining the inconsistencies.
Secondly, the applicant has provided inconsistent evidence as to which political organisations he was involved in between his 2016 statement and 2021 statutory declaration as well as at hearing. In his 2016 statement he referred to joining the Jatiyabadi Jubo Dal, which is the youth wing of the BNP party, in 2005 and in 2006 becoming [Position 2] of the Jubo Dal. However, in his 2021 statutory declaration he indicated that in 2005 he joined the Jatiyabadi Shramic Dal, being the workers/labour wing and in 2006 becoming [Position 2] of the Shramic Dal. However, at the Department interview he referred to being involved in the Jatiyabadi Jubo Dal from 2004 while at school and then the Shramic Dal when he dropped out. At the Tribunal hearing the applicant did not refer to being involved in the Jatiyabadi Jubo Dal. When the concern was raised with him, he said he was involved in the Shramic Dal and perhaps his previous lawyer confused it with the Jatiyabadi Jubo Dal. In his post hearing statement, he repeated that his lawyer mistakenly inserted that he was involved with Jubo Dal politics, where he was in fact involved with Shramic Dal politics while he was in Bangladesh before he fled to [Country 1].
While the Tribunal accepts he now has a different representative it notes his evidence in his application that he reads, writes and speaks English and that as his political involvement is central to his claims he would have been consistent as to this between evidence to the Department and Tribunal including in his statements similar to the above, it rejects his explanation in his post hearing statement as to the why he gave confusing and inconsistent evidence as to which organisations he was involved in. It also notes he stated that he was involved with the Jubo Dal at the Department interview while at school in 2004. The Tribunal is of the view if the applicant was involved in BNP politics or its affiliated organisations and it is why he fears return he would provide consistent evidence as to this involvement throughout the process, which he has not. It adds to the finding he is not a credible witness.
Political involvement and difficulties faced in Bangladesh on return in 2009
At the Tribunal hearing the applicant indicated that when he returned to Bangladesh in 2009, he rented a place in [Town 1] for 4 to 5 months and during this time he was actively involved in BNP and Shramic Dal politics, attending functions, meetings, rallies and processions where he was targeted by Awami League members and cadres. He said he was attacked 4 or 5 times with wooden sticks and suffered minor injuries. He said he was also threatened with his life and departed Bangladesh in 2009 in fear. However, for the reasons that follow the Tribunal does not accept he is a credible witness as to ever having been involved with BNP or Shramic Dal politics or politics at all in the manner claimed or when he returned to Bangladesh in 2009. This adds to the finding he is not a credible witness.
Firstly, in contrast to this claim at the Tribunal hearing he stated at the Department interview that the last time he attended a BNP function in Bangladesh was during the caretaker government. He said that was in 2006 although independent information indicates the caretaker government as in power from January 2007 until the elections in December 2008.[2]
[2] The Tribunal does not make an adverse inference as to his incorrect dates of the caretaker government.
Secondly, despite being asked at the Department interview whether he had more to tell and being asked of his political activities he did not refer to this activity, the attacks or threats to his life on his return in 2009 which the Tribunal expects he would if he faced these difficulties.
Further, despite claiming he was threatened with his life, attacked on 4 or 5 occasions in 2009 and fled in fear in 2009 his initial evidence at hearing was that he returned to Bangladesh in or around 2011 and 2015 renting a place in the same area of [Town 1], for 15 to 20 days so he could review his visa for [Country 1]. The Tribunal notes his passport indicates he returned to Bangladesh around September 2015 and the applicant at hearing confirmed this to be correct.
When the Tribunal raised the above concerns with him as questioning whether he is a witness of truth as to these claims and that his return to Bangladesh to the same area where he had claimed to be attacked in 2009 undermines his claim he faced the difficulties he claims, he responded that when he returned in approximately 2011 and 2015 he did not involve himself in politics, nor see his family and friends. He said he stayed in his rented home in [Town 1], returned to renew his visa and was in hiding. He also said he did not return to the same suburb in the area of [Town 1], rather living in [an area] and said [Town 1] is a very big area. He said people did not know he was there as he did not tell anyone.
The Tribunal does not accept the applicant’s explanation. Firstly, he claimed he had to return in 2011 and 2015 to renew his visa, however he has submitted to the Tribunal a work visa issued by the [Country 1] Government which he applied for [in] October 2012 and was valid from [October] 2014 to [November] 2016, so the Tribunal does not accept he had to return in 2015 to renew his visa. When this was raised with him, he repeated that he had to return to renew his visa. The Tribunal does not accept this explanation and is of the view if he fled Bangladesh in fear of his life having faced the difficulties, he claims he would not have returned to Bangladesh where it is his claim his life was in danger, especially in 2015 where he had a visa to live in [Country 1] until 1 November 2016.
Further, undermining his claim he faced these difficulties and fled in fear in 2008 as well as in 2009 or at any time is that despite travelling to [Country 2] on numerous occasions from 2014 to 2016 as outlined in his protection visa application and his passport indicating he had visas to enter [Country 2] in 2014 and 2016, his evidence is he did no research applying for protection in [Country 2] or sought protection in [Country 2]. At hearing he said it was not possible. However as raised with the applicant independent information indicates asylum in [Country 2] can be sought via the UNHCR [office].[3] The Tribunal views as undermining his claims that he fled in fear that he did not research at a minimum the opportunities to seek protection in [Country 2], rather returned to Bangladesh in 2015 to renew his [Country 1] visa.
[3] [Source deleted]
The Tribunal views his behaviour of returning to Bangladesh in 2011 and 2015 from [Country 1] as undermining his claim that he faced the difficulties he claims, and that he left Bangladesh in fear for the reasons he claims. Notwithstanding his claim to have to renew his visa, the Tribunal is of the view that if the applicant was at risk as he claims he would not have returned to Bangladesh for any of the reasons he claims without looking for protection options. His return to Bangladesh undermines his claim that he faced the difficulties he claims, to be in fear of the Awami League cadres, or anyone else for the reasons he claims fleeing in fear in 2008 but especially following attacks from the Awami League in 2009. It adds to the finding he is not a credible witness.
BNP Australia
Central to the applicant’s claims is his involvement in the BNP Australia, including being a member attending meetings, functions and other activities. However, despite claiming he is involved and [Mr A] contacts him frequently to attend BNP Australia meetings and other functions, when asked [Mr A]’s position in the party, he responded that he is President of the BNP Australia party and when asked how long he has been President he said he did not know. However, as raised with the applicant the letter he has submitted from the BNP Australia dated [June] 2021 indicates that Mr [A] is [Position 1] of the BNP Australia. In his post hearing response he said that [another named person] is the President and [Mr A] is the [Position 1].
The Tribunal views this inconsistent evidence provided at hearing as undermining his claim he is involved in the manner claimed. While it has considered his post hearing response where he indicated [Mr A] is the [Position 1] it is of the view if he was involved in the manner he claimed he would have been able to advise of the correct role of [Mr A] when asked at hearing, particularly as it is his claim [Mr A] calls him.
Further, despite the Tribunal asking repeatedly as to his involvement in BNP politics in Australia his evidence was vague and lacking in detail. His evidence at the Tribunal hearing was as follows:
T:       How are you involved in Bangladeshi politics while in Australia or are you?
A: You know the political party that we have here in Australia I got introduced to them and now I am involved with them
T:       Can you tell me more? What do you do? When did you get involved?
A If there is any meeting or anything I go and attend. There is other people like [Mr A]. If they call me anytime to attend any activities, I join them, that’s how I am involved.
(the Tribunal asks whether he is referring to [Mr A] and asks where he met him)
T: So tell me more? You are being vague about how you have been involved in Australia. Could you be more specific?
A:       I am a Member of BNP Australia, number 1
T:       Anything else you what to say?
A: I join them whenever they call me for any meeting or any party things like that. Tomorrow I will attend a party which is scheduled for tomorrow.
T: Can you give me more, such as what sort of events. You are being very vague about what you are involved in in Australia and lacking in detail. If you could give me more detail?
A: As and when they call me for any meeting, I go and then supposing they want to give some financial assistance to anybody in Bangladesh I participate, like that
T:So, who is the President of this organisation?
A: [Mr A]
T: [Mr A]?
A:Yes
T: When did he become the President?
A: I do not know. I know he is involved in the party but when he became the leader I don’t know. I do not know when they established themselves and the background
T:Has [Mr A] been the President since you have been attending?
A:Yes. I know him as the President.
T: …It’s just odd he signed the letter as the [Position 1] not president in 2021
A:President I don’t know he calls me I go
T:Who calls you?
A: As and when [Mr A] calls me, I go there.
T:I have to say, I really question whether you are involved at all because you are very vague and lacking in detail as to what you do and don’t seem to know much the BNP in Australia.
When the Tribunal raised with him that his evidence appeared vague and lacking in detail as above and later in the hearing he did not respond to this concern.
The applicant’s evidence lacking in detail as to his claimed level of involvement as a member attending meetings and events adds to the finding he is not involved in the BNP Australia to the level and extent as claimed. It adds to the finding he is not a credible witness.
Credibility summary
For all the above reasons, considered cumulatively, the Tribunal does not find the applicant to be a credible, truthful and reliable witness as to his involvement in the BNP Jubo Dal or Shramic Dal in Bangladesh. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns, the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims as to why he departed Bangladesh in 2008 or 2009 and the difficulties he faced in Bangladesh.
In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. It is also sensitive to the length of the process and that frustrations can arise in this regard. In this regard, it has considered his claim that at the Department interview he was not well and he was very worried about his wife and family. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led the Tribunal to find that the applicant is not a reliable witness as to these claims.
In making this finding the Tribunal has also considered that some information has been consistent with independent information including that he was able to name the local BNP MP, [name deleted] who won the 1996 and 2001 elections in his area but lost the 2008 election. While he indicated his name was [different name], the Tribunal accepts that he is often referred to by this name. However, the Tribunal considers that this is a relatively easy matter to recall and his consistency in this does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.
In making this finding the Tribunal has considered the letter from [Mr A], [Position 1] BNP Australia dated [June] 2021 as to the applicant’s involvement in the Shramic Dal when living in [Dhaka]. The Tribunal notes that the applicant advised at hearing that he advised [Mr A] after coming to Australia as to his political roles in Bangladesh and difficulties he personally faced in Bangladesh. As the evidence of the applicant indicates that the applicant advised [Mr A] of his political activities and difficulties in Bangladesh, based on the applicant’s lack of credibility as to these claims it places no weight on the letter as evidence of the applicant’s political positions with the Shramic Dal, BNP or any associated organisation in Bangladesh, or difficulties he faced in Bangladesh.
Accordingly, for all of the above reasons, in light of its findings that he is not a reliable witness, the Tribunal has no confidence in accepting that key aspects of his claims were based on his personal or actual experiences and considers it was fabricated to create a claim to be owed protection. Based on his lack of credibility it does not accept he was a supporter, member, follower or ever involved with the BNP, Jubo Dal or Shramic Dal or ever held any roles, including as [Position 2] with any of these organisations or undertook any of the activities with the BNP, Jubo Dal or Shramic Dal in the manner claimed or was ever perceived as a supporter or activist of the Jubo Dal, Shramic Dal and/or the BNP and/or perceived as being opposed to the Awami League by anyone in Bangladesh. It follows it does not accept that due to these roles he was ever close to any of the senior BNP, Jubo Dal or Shramic Dal leaders in his area or nationally.
It follows it does not accept he undertook any of the activities associated with being a member of the BNP or Jubo Dal or Shramic Dal either while at school or while working in Dhaka or was inspired by his boss at [Factory 1] while working in Dhaka to become involved or was told what to do by this man, that he organised and attended gatherings, meetings, rallies or processions during the caretaker government or when the Awami League was in government or at any time. It follows it does not accept he undertook any of the activities claimed associated with the BNP, Jubo Dal or Shramic Dal or advocated against the Awami League or caretaker government.
It follows, based on his lack of credibility, the Tribunal does not accept the applicant was ever attacked, oppressed, threatened with harm or death unless he stopped his political activities, was beaten, harmed, verbally or physically assaulted, had false cases laid against him or faced any of the difficulties he claims at the hands of the Awami League or the police or RAB or anyone else. It follows it does not accept as true he sustained any of the injuries he claims as a result of his political activity. It follows it does not accept he ever had to go into hiding or not tell anyone he was returning to Bangladesh to avoid the harm feared.
It follows it does not accept that at the time of his departure in 2008, 2009, 2011 or 2012 or 2015 he held any profile in Bangladesh with regard to being involved with the BNP, Jubo Dal or Shramic Dal and being in opposition to the Awami League or caretaker government. It follows based on the applicant’s lack of credibility the Tribunal does not accept as true that he fled Bangladesh as he feared being harmed or killed by the Awami League associates, members and activists or anyone acting on their behalf, including the police, RBA or anyone else. It follows that the Tribunal does not accept as true that at the time he departed Bangladesh in 2009, 2009, 2011 or 2012 or 2015 he held any concerns for his safety or feared being harmed for any of the reasons he claims.

It also does not accept his boss in Dhaka was imprisoned due to his political beliefs or gave him money for people to attend BNP activities.
As to his political involvement in Australia, the Tribunal also accepts that the applicant provided a letter from [Mr A] dated [June] 2021 who identifies as the [Position 1] of the Australian branch of the BNP indicating the applicant is a member of this group and participates in BNP activities in Sydney, aiming to foster Bengali political culture. Based on the Tribunal’s concerns outlined above, however, the Tribunal does not accept he has been involved in the BNP to the extent and manner claimed.
In any event, just because the applicant has joined the Australian branch of the BNP or participated in those meetings or events does not establish that the applicant did so because he had a genuine political opinion supportive of the BNP, or that the applicant joining the Australian branch was a continuation of his political involvement in Bangladesh. It may be that the applicant has joined the Australian branch of the BNP and undertaken various activities with that organisation merely to strengthen his protection claims, as was raised with him at hearing. The Tribunal is satisfied that this is the case as the Tribunal has found above that his evidence as to his level of involvement in the BNP Australia as a member is not credible as it was lacking in detail. Further, based on the applicant’s lack of credibility and his claim that his motivation to join the BNP Australia followed his claimed involvement in the BNP in Bangladesh, the Tribunal does not accept his motivation was genuine as to his involvement in the BNP Australia, attending meetings and other activities and is of the view it was done to strengthen his claim for protection.
Does he have a well-founded fear of persecution in relation to Bangladesh and meet the refugee protection provisions of the Act, or does he meet the protection obligations under the complementary protection provisions of the Act?
Based on its findings as to the applicant’s credibility, the Tribunal has found that the applicant was not a leader, supporter, member, associated with, involved or perceived to be associated with the BNP, Jubo Dal or Shramic Dal in opposition to the Awami League, or faced any of the difficulties he claims for the reasons he claims at the hands of the police, Awami League members or cadres, RAB, police or the Bangladeshi Government or anyone else.
The Tribunal has found above that at the time he departed Bangladesh he was not of any interest to the Awami League, police, RBA, or the Bangladeshi Government or anyone else for the reasons he claims. It follows it does not accept were he to return to Bangladesh now or in the reasonably foreseeable future the applicant will be killed, harmed, be physically abused, threatened, harassed, be arrested and detained, have to go into hiding, have to relocate, be unable to live a normal life, be kidnapped, have a false case fabricated against him, or face any of the difficulties he claims from the Awami League, police, RBA, or law enforcement officials or the authorities or anyone else.
As the Tribunal has found that the applicant was never involved with the BNP, Jubo Dal or Shramic Dal in the manner he claims in Bangladesh and has found his involvement in the BNP Australia was to strengthen his claims for protection, it follows that the Tribunal is not satisfied that the applicant will participate in any BNP, Jubo Dal or Shramic Dal activities in any way on return or will suffer persecution by being prevented from being involved. It does not accept as he has not been involved in the past that he will continue to work for the BNP, Jubo Dal or Shramic Dal wherever he lives in Bangladesh, which would place the applicant at any risk of harm. It does not accept he will not be involved in the future as he is scared or due to any fear of harm.
As a result, the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm if he returns to Bangladesh in the reasonably foreseeable future at the hands of the Awami League, or anyone acting on their behalf or the police or the RBA or the authorities or anyone else due to his political activities, leadership, opinion or imputed political opinion associated with the BNP, Jubo Dal or Shramic Dal in either Bangladesh or Australia. Similarly, based on the findings above and on the information before it, the Tribunal is not satisfied that there is a real risk that he will suffer significant harm on his return to Bangladesh due to his political activities, leadership, opinion or imputed political opinion associated with the BNP, Jubo Dal or Shramic Dal in either Bangladesh or Australia.
Notwithstanding the above, and the Tribunal’s finding that the applicant’s motivation was and is not genuine as to his involvement with the BNP in Australia and he will not be politically active on return to Bangladesh, the Tribunal accepts that the applicant is a member of the BNP Australia and has participated in activities aiming to foster Bengali political culture. As to his involvement in Australia, DFAT in its 2019 country report indicates that it does not know whether diaspora organisations report back to the domestic party on activities of their local BNP branch. It also noted that Bangladesh has a very large diaspora, and tens of thousands of Bangladeshis exit and enter the country each year. It stated it is unlikely that authorities have the capacity to check on or monitor each of these people, and the vast majority of returning Bangladeshis will re-enter the country without incident. If, however, those returning have a particular political profile, particularly with the BNP, it stated it is likely that their entry into Bangladesh will be noted. DFAT stated it is not aware of any instances of returnees being detained at the country’s borders in relation to political activities conducted abroad. DFAT assessed 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. DFAT notes that this is unlikely, however, for returnees without such a profile.
Based on the DFAT country information, as he had no political profile prior to his departure, his involvement in the BNP in Australia was only as a member with limited involvement and the Tribunal’s finding he will not be politically active on return, the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm if he returns to Bangladesh in the reasonably foreseeable future due to any involvement in the BNP Australia or as a result of any activities or meetings he claims to have attended. Similarly, based on the findings above and on the information before it, the Tribunal is not satisfied that there is a real risk that he will suffer significant harm on his return to Bangladesh due to his involvement in the BNP Australia or as a result of any activities or meetings he claims to have attended.
In his post hearing statement the applicant indicated that he has been outside Bangladesh for many years and living in Australia for 6 years. This was not raised as a claim at hearing or to the Department and there is no evidence before the Tribunal to indicate that people who have spent a lengthy time in Australia or outside Bangladesh face difficulty amounting to serious or significant harm on return. The Tribunal therefore does not accept that the applicant faces a real chance of persecution involving serious harm if he returns to Bangladesh in the reasonably foreseeable future as he has not lived consistently in Bangladesh for many years and has lived in Australia for 6 years. Similarly, based on the findings above and on the information before it, the Tribunal is not satisfied that there is a real risk that he will suffer significant harm on his return to Bangladesh as he has not lived consistently in Bangladesh for many years and has lived in Australia for 6 years.
Conclusions regarding the Refugee Claims
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in Bangladesh in the reasonably foreseeable future. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future.
Based on all the evidence before it, including the applicant’s claimed past circumstances and his current personal and family circumstances and profile in Bangladesh, the Tribunal is not satisfied that the applicant faces a real chance of persecution involving serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion if he returns to Bangladesh in the reasonably foreseeable future. For the reasons given above, the Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
The Tribunal has also considered whether the applicant is eligible for complementary protection. Findings have been made above in this regard.
The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real risk of him being subjected to significant harm on return to Bangladesh. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in s 36(2A) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Gabrielle Cullen
Member

ATTACHMENT
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 1787

26 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice