1620253 (Refugee) - [2020] AATA 6026

1620253 (Refugee) [2020] AATA 6026 (27 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620253
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Christopher Smolicz
DATE:27 November 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 27 November 2020 at 11:15am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh Nationalist Party (BNP) supporter – harassed and intimidated by Awami League supporters – BNP work done using an alias – credibility issues – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 351, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
SZRLB v MIBP [2014] FCCA 2851
SZRQR v MIAC [2013] FMCA 21
SZRSA v MIAC [2012] FMCA 1187
SZSJC v MIBP [2013] FCCA 1755
SZSNY v MIMAC [2013] FCCA 1465
SZTAL v MIBP (2016) 243 FCR 556
SZTGM v MIBP (2017) 262 CLR 362
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 10 November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Bangladesh, applied for the visa on 27 April 2016.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
In assessing the applicant’s claims the Tribunal has had regard to DFAT’s Country Information Report Bangladesh dated 22 August 2019. Relevant extracts are detailed in the attachment to this decision. The Tribunal has also had regard to country information referred to by the applicant’s representative in submissions dated 26 November 2020.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Issue
The issue in this matter is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds because of his political opinion.
Background
The applicant is [age] years old. He was born in Noakhali, Chittagong, Bangladesh. He described his ethnicity as Bengali and his religion as Sunni Muslim. [In] May 2007 he arrived in Australia on a [student] visa. The applicant declared in his protection visa application that he worked as [an Occupation 1] in Australia. He declared that he was convicted [of Offence 1] in Australia and placed on a two-year good behaviour bond (2010). He married an Australian citizen in March 2020. His family did not travel to Australia for the wedding.
He travelled to Australia on a passport issued by the People’s Republic of Bangladesh. The Tribunal has assessed the applicant’s claims against Bangladesh as the receiving country.
The following is a summary of the applicant’s migration history since he arrived in Australia.
·     8 October 2009                Applied for VC-487 Skilled – Regional Sponsored visa
·     [November] 2011            Departed Australia for Bangladesh travelling on a bridging visa
·     [December] 2011            Returned to Australia
·     24 December 2012          Applied for UC-457 Temporary Work (Skilled) visa
·     23 April 2013                    UC-457 visa refused due to no valid sponsorship
·     2 January 2014                VC-487 was refused
·     20 January 2014              Applied for review of VC-487 visa refusal with AAT[1]
[1] case 1400959
·     [February] 2014               Departed Australia for Bangladesh on a bridging visa
·     11 February 2014            Applied for UC-457 visa offshore
·     [February] 2014               Returned to Australia
·     31 March 2014                 UC-457 visa refused
·     4 April 2014  Applied for review of UC-457 refusal at AAT[2]
[2] case [Number 1]
·     4 April 2014  VC-487 Tribunal application withdrawn[3]
[3] case 1400959
·     11 August 2014                UC-457 refusal affirmed by AAT[4]
[4] case [Number 1]
·     5 September 2014           Applied for Judicial Review of UC-457 affirm decision[5]
·     7 October 2015                Judicial Review finalised – ‘Minister win’
·     4 November 2015            Applied for Ministerial Intervention
·     6 April 2016  Ministerial Intervention outcome – not referred
·     27 April 2016                    Applied for an XA-866 Protection visa
·     10 November 2016          XA-866 Protection visa refused
·     30 November 2016          Applied for review of XA-866 refusal at AAT

CONSIDERATION OF CLAIMS AND EVIDENCE
[5] SYG2491/2014
Summary of substantive claims
The applicant provided a statutory declaration dated 28 April 2016 in which he made the following claims for protection.
He left Bangladesh in fear of his life and safety because of his political involvement.
His father is a businessman and an active Bangladesh Nationalist Party (BNP) supporter. He has two uncles who are strongly involved in the BNP. The uncles provided financial support and advice to local supporters. His cousins also are active supporters of the BNP. During the elections his uncles and older cousins used to donate to the BNP field workers. Due to his family background he was drawn to the BNP and started to support them.
In [2005] he completed his [schooling] and became an active worker for the BNP and travelled to Noakhali for BNP meetings.
Towards the end of 2006, although he was only [age] years old, he was actively involved in political activities focusing on the next election. He worked at the grass roots level of workers and leaders. In his home area 90 per cent of the people supported the BNP. He distributed leaflets and would speak to the local candidate [named]. He was entrusted with various responsibilities to mobilise BNP supporters. Every Friday he would attend a meeting to discuss plans to promote the election campaign.
Towards the end of 2006 the caretaker government came to power and started to arrest active BNP leaders and supporters. As a consequence, his parents decided to send him to Australia on a student visa until the political situation settled down.
In May 2007 he arrived in Australia and completed an [Advanced Diploma]. After completing his qualifications, he applied for a Subclass 487 visa.
In November 2011 he applied for a bridging visa B to visit Bangladesh because his father was unwell. During his time in Bangladesh the situation was very dangerous for BNP supporters and on the advice of his parents he restricted his movements and returned to Australia.
In 2012 and 2013 he was looking for a new for a 457 visa sponsor. He continued to work for [specified businesses] but was not able to get a sponsor.
In November 2013 he obtained a new sponsored job at [a named business] and applied for a 457 visa. He returned to Bangladesh [in] February 2014 for an urgent family matter and made his offshore 457 visa application. During this time the Awami League (AL) won the elections and the BNP requested the international community exert pressure on the AL to conduct fair elections in Bangladesh.
[Later in] February 2014 while he was in Bangladesh, he was targeted by AL supporters when he was returning home after spending the evening at a restaurant with his BNP friends. He was warned not to support the BNP or be involved in any BNP activities overseas.
After the incident his family advised him to leave Bangladesh as soon as possible and he left the next day. When he returned to Australia, he contacted the BNP branch and spoke to [a named person] and told him what happened to him and started to actively get involved in BNP Australia. He claims that prior to this time he only attended some BNP programs in Australia.
On 31 March 2014 his lawyers told him his 457 visa was refused because he was in Australia at the time the decision was made. He applied to the MRT and to the Federal Circuit Court (FCC) for review of the Department’s decision but was not successful. He applied to the Minister under s.351 seeking his intervention but the Minister refused to intervene on 11 April 2016.
He claims he cannot get protection in Bangladesh because the judiciary and the police are corrupt. He fears he will be targeted and killed due to his opposition to the AL.
Protection interview
The applicant took part in a protection interview on 29 September 2016. The following summary of the applicant’s interview is detailed in the delegate’s decision.
At the interview, the applicant said he started to become involved with the BNP at college when he was [age] years old. He was involved with BNP activities up until he obtained a student visa and came to Australia in 2007.
He was not an official member of the BNP student wing at the time because he was below the age requirement to join; however, he has joined BNP officially in Australia.
The applicant stated he promoted the political party in his local area by encouraging other people to join the BNP as a way of showing his support.
The applicant said he first experienced trouble from the AL in 2002, when he was about [age] years of age.
The delegate asked the applicant why the AL would be targeting him when he was only [age] years old. The applicant responded that it was because people in his local area supported him and liked him for his political support and promotion of the BNP, so he became a target of the AL cadres. He was harassed by these cadres, and on two occasions, they threatened to harm him if he did not leave the BNP and they slapped him on the face during this time. His family had to move house because of what he had experienced, and he was sent to a strict college to prepare for the university entrance exam. He kept a low profile and was able to avoid adverse attention from the AL until he was able to travel to Australia.
At the interview the delegate invited the applicant to explain whether he experienced any trouble when he visited Bangladesh in 2011 and 2014. The applicant said he had to be very careful when he returned to Bangladesh; he had kept his return to Bangladesh a secret, even from his own family until the day before his arrival. He was kept by his family in the countryside, and he spent his time mostly in hiding. The applicant further added that the political situation in Bangladesh was worse when he returned in 2014; anyone who demonstrated the slightest support for the BNP would be targeted and could be potentially killed.
He stated that he was attacked by the AL during his return in 2014 when he was at a restaurant with his friends making rude remarks about the AL and speaking loudly about his support for the BNP. He claimed that when he left the restaurant alone he was targeted and beaten by three to four AL members. The AL members told him to go back overseas and to stop supporting the BNP.
New evidence
The applicant provided the Tribunal with a second statutory declaration dated 6 October 2020.
He claims his profile is that of an “emerging leader” of the BNP and disagrees with the delegate’s findings that he is an ordinary member or supporter of the BNP.
He claims that the people who are perceived as potential leaders in the future BNP are at risk of serious harm from the AL. He claims he is strongly engaged with the BNP and its activities and holds the position of [Position 1] [BNP Branch 1] and that he has held this position for a “few years” and has various responsibilities and is trying to bring the BNP back to power in Bangladesh.
As [Position 1], he is responsible for organising many important meetings with senior leaders. He contacts every member, supporter and leader of BNP Australia by calling, text messaging and emailing them personally. He explains to them the importance of the meetings and encourages them to join. He claims to have almost [number] members on his contact list.
He said that in the last few years BNP Australia has received the following BNP leaders who have travelled to Australia for important meetings:
· Advocate Asaduzzaman, Human Rights Secretary of BNP Central Executive Committee visited Sydney on 12 March 2017 and subsequently attended a meeting at a local Bangladeshi restaurant in Lakemba.
· Prince Emran Saleh, Organising Secretary of BNP Central Executive Committee who visited Sydney on 17 June 2018 and subsequently attended a meeting at a local Bangladeshi restaurant in Lakemba.
The applicant said BNP Australia has organised large protests against the Prime Minister of Bangladesh, Sheikh Hasina during her visit to Sydney on 26 April 2018. Meetings were organised on 21 April 2018 in Lakemba and a second meeting took place on 25 April 2018 at Haji’s Biryani Restaurant, Lakemba.
The first day of protests was held on 27 April 2018 at Darling Harbour. He personally called and messaged more than 70–75 BNP supporters asking them to attend the protest. A second day of protests was held on 28 April 2018 in front of the Sofitel Wentworth Hotel, Sydney.
The applicant claims he also does a lot of social media activities on behalf of [BNP Branch 1], sharing photos, videos, posters and banners to show people internationally.
He claims that now that the AL have seen these photos, [Social Media 1] videos and follow his activities he will be targeted. He claims that as a consequence his father has received threats in Bangladesh.
The applicant provided the following further information in support of his claims:
·     Letter from [Mr A], BNP Australia dated 30 September 2016
·     A bundle of emails regarding BNP activity in Australia
·     Photographs of BNP activities in Australia
The applicant provided the Tribunal with the following further information in support of his application:
·     Photographs and [Social Media 1] screenshots purporting to relate to his BNP activity in Australia (social media evidence).
·     Email dated 6 October 2020 sent by the applicant’s representative with links to [Social Media 1] regarding the applicant’s political activity in Australia.
·     Original and translated statement from [a named person] (the applicant’s father) dated 24 September 2020.
·     Medical reports relating to his wife.
·     Letter dated 28 September 2020 sent by the applicant’s general practitioner referring him to [a named mental health service] relating to his anxiety symptoms.
Tribunal hearings
The applicant took part in a hearing before the Tribunal on 12 October 2020. His migration agent took part in the hearing by telephone from NSW. The matter was listed for a second hearing on 26 October 2020 because the applicant requested that the Tribunal take evidence from Mr [A] and his father in Bangladesh.
On the morning of the second hearing the Tribunal was provided with a request seeking to postpone the hearing. The Tribunal was advised that the applicant’s father in Bangladesh had been diagnosed with COVID-19 and his lungs were infected and he was unable to give evidence. The Tribunal was provided with a medical report from Bangladesh dated 25 October 2020 which states that the applicant’s father tested positive for COVID-19.
The applicant said his father had a lung infection one week ago and was taken to hospital and is now in isolation and cannot give evidence before the Tribunal. The applicant said he was stressed and depressed as a result of the information and is taking steps to obtain further medical reports in relation to his father’s health.
The Tribunal asked the applicant why he waited until the morning of the second hearing to advise the Tribunal that his father was unwell and could not give evidence in circumstances where he was seriously unwell a week before the hearing. The applicant said he only found out about the COVID results on the Sunday.
The Tribunal asked the applicant how he obtained a copy of his father’s medical report from Bangladesh. The applicant said his brother told him about his father’s condition and he downloaded the document from the internet.
The Tribunal requested the applicant to provide a copy of the communication received from his brother so that it could verify what information he was provided about his father’s health and when this was received. After further questioning the applicant changed his evidence and said that his brother did not contact him but sent a message by [Social Media 1] to his wife and he would need to ask his wife what information she received. The Tribunal told the applicant it found it unusual that his brother would be contacting his wife and telling her that his father was unwell. The applicant said he was stressed and was not eating, and his brother was sending messages to his wife.

The Tribunal agreed to provide the applicant with further time after the hearing to obtain further medial evidence about his father’s health to better understand the nature of his condition and if he could give evidence.
In post hearing submissions the Tribunal was provided with the following information:
·     Statement from the applicant dated 3 November 2020.
·     [Social Media 1] messages (in Bangali) between the applicant’s wife and the applicant’s brother documenting when he was notified about his father’s COVID-19 infection.
·     Letter from Professor [B] (Bangladesh) dated 28 October 2020 regarding the applicant’s father’s medical condition.
·     A copy of a report from [a named] Hospital dated 24 October 2020 regarding the applicant’s father’s condition.
·     Letter from Dr [C] regarding the applicant’s anxiety.
The applicant claims his father is an important witness and he wants him to give evidence at the hearing about “the situation waiting for him in Bangladesh at the time the Tribunal takes the decision.”
The Tribunal has considered the applicant’s request to take evidence from his father. According to the medical information the applicant’s father has been diagnosed with COVID and is in hospital isolation. Professor [B] states that the applicant’s father is a 60-year-old patient facing complexities in his condition due to severe lung infection and that he needs to be under close observation and further testing is required to monitor his progress. No further information was provided about the prospects or time frame for his recovery.
The Tribunal explained to the applicant that the Tribunal has a discretion whether or not it agrees to take evidence from a witness. The Tribunal has considered the medical evidence and finds that it is unclear when or if his father will be able to give evidence.
In post hearing submissions dated 26 November 2020 the applicant’s representative requested the Tribunal to contact the applicant’s father to provide oral evidence. The Tribunal was not provided with any new medical evidence about the current health of the applicant’s father.
The current medication information before to the Tribunal indicates the applicant’s father’s condition is very serious and the Tribunal considers he is clearly not in a position to give evidence from Bangladesh. The Tribunal does not consider it reasonable to further postpone the matter in circumstances where there is no indication when his father’s condition will improve. As discussed with the applicant at the hearing, the Tribunal has before it his father’s statement dated 29 September 2020. The Tribunal notes the statement is current and was provided about two weeks before the first hearing. The Tribunal has considered this evidence in assessing the applicant’s claim for protection.
Credibility
The Tribunal has considered the applicant’s evidence at the hearing and finds it to be vague, inconsistent and embellished. The Tribunal does not find the applicant’s evidence about his political activity in Bangladesh and Australia to be credible. The Tribunal’s concerns are detailed below.
Political activity in Bangladesh
At the hearing the applicant repeated his claims that he was involved in politics in Bangladesh and was a supporter of the BNP. His father feared for his safety and sent him to study in Australia in May 2007.
The Tribunal asked the applicant to provide further detail about his political involvement in Bangladesh before he travelled to Australia. The applicant said that when he was in high school, he was a supporter of BNP but was not involved in politics because of his young age at the time.
On several occasions the Tribunal invited the applicant to expand on his claims. The applicant said that in 2003 to 2005 his father sent him to a very strict high school which prevented students from becoming involved in politics. The applicant said that he was hiding his political involvement from his father at the time. After further questioning the applicant said he was involved in the student wing of the BNP (Chhatra Dal).
The Tribunal notes that the applicant made no reference to being a member of the Chhatra Dal in his statutory declarations dated 28 April 2016 and 6 October 2020.
When the Tribunal put the inconsistency to the applicant he changed his evidence and said that at the time he was involved with the BNP at a local level but there was no committee and he could not join the student wing because all political activities were banned in Bangladesh.
The Tribunal asked if he had voted in any political elections in Bangladesh. The applicant said he had never voted in Bangladesh.
The Tribunal invited the applicant to explain what political activities he was involved in in Bangladesh. The applicant said he worked under the local member of parliament and organised protests for the next election. He would decide who would participate in the protests and what the banners would look like.
The Tribunal asked if there was any specific incident which prompted his father to conclude that it was no longer safe for him to remain in Bangladesh and that he had to travel to Australia for his safety. The applicant said in 2002, when he was in year [number] at school he was targeted and abused by the AL on several occasions. The Tribunal noted that this was many years before he departed and asked the applicant if he had any recollection of more recent incidents.
The applicant said that he recalls one incident which occurred after school when he was 15 years old during year 10 of his schooling. He was talking about politics with a school friend and was attached by AL supporters. He was slapped, punched and had to catch a bus to run away. The Tribunal asked if he knew the people who attacked him. The applicant said they were AL supporters from the same school. The Tribunal asked the applicant why the AL supporters would target him. The applicant said he was trying to start up an BNP student wing at his school.
The Tribunal again asked the applicant what prompted him to leave Bangladesh and travel to Australia. The applicant said that in 2006 to 2007 the AL took over power and there was a caretaker government in place and all BNP leaders were ousted from government. The BNP leaders were beaten, and he was working hard to make BNP stronger. His father was worried for his safety at the time and sent him to Australia.
The Tribunal finds the applicant departed Bangladesh in 2007 after he completed school when he was [age] years old. The applicant was 14 to 15 years old when he claims he became involved with BNP activities and was harmed by fellow students who were supporters of the AL. The Tribunal accepts the applicant may have been involved in some minor altercations with fellow students at school because his family were supporters of the BNP at the time. The Tribunal accepts that during his final years of high school his father sent him to a strict school that did not permit political activity so that he could focus on his studies. The Tribunal does not however accept the applicant was a member of the Chhatra Dal. The Tribunal finds that due to his young age he was not an official member or leader and was without any specific party position or title within the BNP. The Tribunal has had regard to the applicant’s political activity and age before the travelled to Australia finds it highly unlikely that the applicant would have a political profile in his local area that would attract adverse attention from the AL such that it would put his life in danger. The Tribunal finds the applicant has embellished his evidence and does not accept that he worked under the local member of parliament and organised protests for the 2008 parliamentary election in Bangladesh. The Tribunal does not accept the applicant made a decision about who would participate in the protests. The Tribunal does not accept the applicant’s father sent him to Australia because his political profile in Bangladesh put his life in danger. The Tribunal finds the applicant travelled to Australia on a student visa to undertake further study after he completed his schooling in Bangladesh.
The Tribunal notes that the applicant arrived in Australia as the holder of a temporary student visa in May 2007 but did not apply for a protection visa until April 2016. The Tribunal asked the applicant on a number of occasions why he did not apply for protection as soon as he arrived in Australia if his life was in danger in Bangladesh. The applicant responded by saying that he arrived in Australia on a student visa. The Tribunal asked the applicant why he did not apply for a protection visa when his student visa expired in October 2009. The applicant said that he wanted to work as [an Occupation 1] in Australia after his student visa ceased.
The Tribunal finds that the delay in applying for protection and the timing of the application since he arrived in Australia are relevant factors in assessing the applicant’s claim that he fears persecution in Bangladesh. The Tribunal noted that the applicant applied for a Subclass 487 visa in October 2009 and it was refused in January 2013. He also applied for a Subclass 457 visa in February 2014 and it was refused in March 2014. He subsequently applied to the AAT and the FCC but was unsuccessful. The Tribunal would have expected that the applicant would have applied for a protection visa soon after he arrived in Australia if his father sent him to Australia because his life was in danger in Bangladesh.
The Tribunal also finds that the applicant’s decision to voluntarily return to Bangladesh on two occasions since he arrived in Australia is relevant in accessing his claim that he fears persecution in that country because of his political profile. The Tribunal questioned the applicant as to why he chose to voluntarily return to Bangladesh in November 2011. The applicant said that he had been away from home for 4–5 years and missed his parents. He said the AL was in power for a while and claimed things were quiet. The Tribunal asked the applicant why he returned to Bangladesh a second time in February 2014. The applicant said he returned to Bangladesh [in] February 2014 because it was calm and quiet after the AL came to power in January 2014. He also needed to travel to Bangladesh to apply for the 457 visa offshore.
The Tribunal finds that the applicant’s evidence about political stability in Bangladesh in 2014 is not consistent with country information. The Tribunal notes that the AL won the January 2014 elections. The elections were reported to be extremely violent with many reported deaths associated with political violence.[6] The Tribunal would not have expected the applicant to return to Bangladesh in February 2014 if he was a BNP activist who had escaped from Bangladesh in 2007 because his life was in danger. The Tribunal would have expected the applicant to have sought asylum at the earliest possible opportunity after the outcome of the 2014 elections if he held a subjective fear of harm because of his political opinion.
[6] DFAT reports that the January 2014 elections were the most violent in Bangladesh’s history, with months of politically motivated violence leaving hundreds of people dead and thousands injured: DFAT Country Information Report Bangladesh, 2 February 2018 [3.59], >
The Tribunal questioned the applicant about what happened to him when he returned to Bangladesh in 2014. The applicant said he purchased a return ticket and travelled on a bridging visa which enabled him to stay overseas for two months. He was hopeful his 457 visa application would be approved during this time. The Tribunal repeated the question and had to prompt the applicant to explain what happened to him when he was in Bangladesh in 2014. The applicant said that [in] February 2014 he was at a restaurant with BNP supporters. When he left the restaurant four to five people attacked him. They pulled his hair, punched and slapped him. They told him he had to stop his BNP activities in Australia. He was able to recognise one of the attackers as a strong supporter of the AL. The Tribunal asked the applicant how the AL supporters that attacked him in the street recognised him and knew that he was in Australia supporting the BNP in circumstances where he not been involved in any elections since he departed in 2007. The applicant said he comes from a small area and people know he came to Australia. He said that the people consider him a protentional leader.
In assessing the applicant’s claims for protection, the Tribunal has also had regard to the applicant’s father’s statement where he states the applicant had to escape from Bangladesh in 2014 because he was “physically tortured” and received threats from the ruling party leaders and workers.
The Tribunal finds it difficult to accept that the applicant would be identified and targeted by AL supporters in February 2014 as a potential leader in circumstances where he has departed Bangladesh in 2007 as an 18 year old with no significant political profile, who had never voted in any elections in Bangladesh and had no involvement in politics in Australia at this time. Further, for these reasons the Tribunal does not accept the applicant’s father would face threats from the authorities in Bangladesh because of the applicant’s political opinion.
The Tribunal further observed that his evidence about being physically attacked was inconsistent with his statutory declaration dated 28 April 2016 where he made no reference to being attacked and beaten and only claims the AL supporters ‘warned’ him not to support the BNP.
The applicant agreed that he did not disclose information about being attacked in his statutory declaration. The applicant said he told the Department that he was attacked during his interview. The Tribunal asked the applicant why he would not disclose evidence in his statutory declaration that was relevant to his claims. The applicant said he thought it would make a better impact if he told the Department in person. The Tribunal has considered the applicant’s explanation and gives it little weight. The Tribunal has had regard to the protection visa claim form (866C) completed by the applicant and notes that it specifically states:

You must provide all details about why you are seeking protection and you may not be given another opportunity to present these claims. Therefore, it is important you include all details relevant to your case and provide supporting documentation at the time you lodge your protection application.
The Tribunal also notes that the applicant’s form was completed with the assistance of a migration agent. The Tribunal would have expected the applicant to declare all information relevant to his claims at the time he lodged his application. The Tribunal does not accept the applicant’s claim that he was identified, targeted and attacked by AL supporters in 2014 because of his political opinion. The Tribunal finds the applicant manufactured this evidence to strengthen his claims for protection.
The Tribunal further notes that after the Department refused the applicant’s subclass 457 visa and the FCC refused his appeal, he applied on 4 November 2014 to the Minister seeking his personal intervention to enable him to remain in Australia. The Tribunal asked the applicant if his application for Ministerial Intervention referred to his claim that his life was in danger in Bangladesh because of his political opinion. The applicant said he did not provide any information about his fear of persecution in Bangladesh and only provided details of his work experience as [an Occupation 1] in Australia. The applicant said that he did not have the assistance of a lawyer at the time he applied for Ministerial Intervention. The Tribunal finds that he was represented by a migration agent at the time. The Tribunal finds it unusual that the applicant would not provide details of his fear of persecution if he had no substantive visa and exhausted all options of remaining in Australia and feared persecution in Bangladesh. The Tribunal finds this evidence is relevant in assessing the credibility of his claims that he fears persecution in Bangladesh because of his political opinion.
Political activity in Australia
At the hearing the applicant said he became actively involved in the BNP politics in Australia in late 2015. The applicant claims that he was the [Position 1] of the [BNP Branch 1] Australia in about 2017. There was no voting and he was just nominated for the position because of his skills. The Tribunal asked the applicant if he was still involved in the BNP activities after he came to Adelaide in February 2020. The applicant said he continues to be involved through social media and by phone.
The applicant said the BNP movement in Australia had a website. The Tribunal observed that it attempted to access the website ( detailed on Mr [A]’s letter but it did not appear to exist. The applicant subsequently changed his evidence and said they did not have a website and it is not working because the AL government is causing them problems and have passed laws preventing people from using the internet and [Social Media 1]. He claims anyone who uses social media to speak out will be arrested. The Tribunal observed that the Bangladesh government does not have any jurisdiction in Australia to stop people accessing the internet or creating their own website. The applicant maintained that the Bangladesh government monitors everything and takes action. The Tribunal found the applicant’s evidence about the BNP (Australia) website lacking in credibility and not consistent with his claim that he is actively involved in BNP politics in Australia.
The Tribunal referred the applicant to his declaration and asked him to provide an explanation of his political activities on social media and how he used his [Social Media 1] account. The applicant said BNP Australia organises meetings with senior leaders if they come to Australia. In 2018 they organised two meetings in Sydney when the Prime Minister of Bangladesh, Sheikh Hasina visited Australia.
The Tribunal questioned the applicant about the various [Social Media 1] screenshots he provided in support of his claims. In particular the Tribunal observed at the hearing that his name did not appear on any of the social media posts that he provided in support of his application. The applicant said he used a different name on social media and was known as [Alias 1]. He claims other people in the community know him by the nickname [Alias 1]. The Tribunal finds it very unusual that the applicant would claim to be the [Position 1] of the BNP in Australia and would use a pseudonym when communicating with members of the organisation in Australia.
The Tribunal questioned the applicant about the bundle of emails he provided in support of his claims for protection. The applicant said he would send the emails to different leaders advising them of upcoming BNP events. The Tribunal noted the emails were also sent using the identity [Alias 1] and were not under his name. By way of example the Tribunal noted that the email dated 23 September 2016 purports to be written by Dr [D]. After further questioning the applicant said he did not actually write the emails. People would give him information and he would forward it to others. The Tribunal found the applicant’s evidence lacking in credibility. The Tribunal told the applicant it seemed unusual that Dr [D] would not send the email directly himself.
The Tribunal noted that many of the emails he provided were identical copies but purportedly sent to different people. The Tribunal asked the applicant why he would not send one bulk email and address it to multiple people. The applicant said that at the time his emails were not working properly. The Tribunal also did not find the applicant’s explanation credible.

The Tribunal noted that some of the emails referred to meetings held in [a] Library meeting room. The Tribunal asked the applicant if he would contact the library and organise the meeting. The applicant said it was done by Mr [A].
The Tribunal referred the applicant to an email dated 14 August 2016 which purports to be sent by [Alias 1]. The applicant said he did not compose the email but typed it on instructions from Mr [A]. The Tribunal observed that it was a simple email advising people of an upcoming meeting and finds it unusual that Mr [A] would not write and send it himself.
The Tribunal questioned the applicant about an email dated 22 July 2016 which purports to be sent from the [Alias 1] email address. The applicant said it was written by Mr [A], [Position 2] of BNP Australia. The Tribunal asked the applicant to explain his role and involvement in sending the email. The applicant said he sent the email and sent text messages to senior leaders telling them to attend the event. The Tribunal requested that the applicant look at the email and asked him to explain what the email was about. The applicant said his role was to organise everyone to attend. The Tribunal repeated the question and asked if he could explain the purpose of the meeting detailed in the email. After further questioning the applicant said that it related to false allegations that were made against a BNP leader, Tarique Rahman and a warrant was issued for the arrest. The applicant was unable to provide further information about the email. The Tribunal had regard to country information and finds that Rahman was actually arrested in March 2007 and he was jailed for seven years on 22 July 2016, the day the email was sent. The Tribunal told the applicant that it would have expected him to be aware of the significance of the date if he was an active BNP supporter.
The Tribunal has also considered the [Social Media 1] links sent in an email dated 6 October 2020 provided by the applicant’s representative regarding the applicant’s political activity in Australia. The Tribunal wrote to the applicant’s agent and referred him to the email and advised that the information submitted to the Tribunal should be in English or accompanied by a translation from a qualified interpreter. The Tribunal was not provided with a translated transcript of any video footage.
The Tribunal questioned the applicant about the [Social Media 1] post he provided in support of his application. The applicant confirmed that he did not operate the [Social Media 1] account under his real name and also used the name [Alias 1]. The Tribunal referred the applicant to a post dated 8 September 2020. The applicant said it was an article critical of Prime Minister Sheikh Hasina. The applicant said he reposted the article but did not write it. The Tribunal notes that none of the [Social Media 1] posts are in the applicant’s name and are not detailed in any statement. The [Social Media 1] videos are in the Bangali language and have not been translated and are of limited assistance.
The Tribunal referred the applicant to the [Social Media 1] material and explained to the applicant that any conduct engaged in by him in Australia is to be disregarded for the purpose of his refugee claims unless he satisfies the Tribunal that he engaged in the conduct other than for the sole purpose of strengthening his claim to be a refugee: s.5J(6). The applicant said that in 2018 Prime Minister Sheikh Hasina came to Sydney and the Bangladeshi people had to organise a protest against her and he did not use [Social Media 1] before because it was not popular.
The Tribunal has considered the applicant’s explanation. The Tribunal finds it inconsistent however that the applicant would claim to be a BNP political activist in Australia but did not use social media to voice political opinion until 2018, after his protection visa application was refused. The Tribunal also finds that there is no evidence the applicant took part in anti-AL protest activity after the 2014 elections. The Tribunal would have expected that the applicant to be protesting the outcome of the 2014 elections if he was a BNP supporter.
The Tribunal has disregarded the [Social Media 1] material and posts provided by the applicant in support of his application. The Tribunal finds that the applicant created the social media evidence for the sole purpose of strengthening his claims for protection.
The Tribunal took evidence from Mr [A] at the hearing. Mr [A] said he was born in Bangladesh. He arrived in Australia in 2007 as a holder of a student visa and is now an Australian citizen. Prior to arriving in Australia, he operated a small business and was involved in student politics. He now works for a [business] and as manager of [a specified] department.
The Tribunal asked Mr [A] to explain his role in BNP Australia. Mr [A] said he is [Position 2] of the Bangladesh Nationalist Party Australia (Bangladesh Jatiotabadi Chatra Dal Australia). Mr [A] said there are about 70,000 Bangladeshi people in Australia and the objective of the organisation is to foster Bengali culture in Australia and to keep the Australian parliament informed about what is happening in the country.

100. He first met the applicant in 2005 or 2006 in Bangladesh when the applicant was studying for his IELTS exam to qualify for the visa to travel to Australia. Mr [A] claims the applicant is very politically active and has been working with him for a long time. He claims the applicant’s life was in danger in Bangladesh. He claims the applicant has suffered a lot because of his involvement in student politics in Bangladesh.
101. The Tribunal asked Mr [A] when the applicant became involved in BNP in Australia. The applicant could not recall but thought it was toward the end of 2014.
102. The Tribunal referred Mr [A] to his reference letters and invited him to provide further evidence about his statement that “To the best of my knowledge he [the applicant] has suffered severe violent acts by the ruling party activists...” Mr [A] said the applicant was threatened by the AL towards the end or middle of 2006 because he was working with the opposition party in Bangladesh. The Tribunal asked Mr [A] to explain in what capacity the applicant was involved. Mr [A] repeated his earlier evidence and said the applicant was involved in the student wing and there were lots of fights and did not provide any further information.
103. The Tribunal asked Mr [A] if knew why the applicant did not get involved in politics soon after he arrived in Australia. Mr [A] said the applicant did not know that BNP Australia existed, and he did not have contact with the applicant at that time.
104. The Tribunal finds Mr [A]’s evidence of limited assistance. It is clear from Mr [A]’s evidence that they met when they were both studying for the IELTS exams to apply for a visa to enable them to travel to Australia. As discussed above the applicant was only [age] years old at the time and had just completed his high school studies. For the reasons detailed above the Tribunal finds the applicant had minimal involvement in politics at the time. The Tribunal has had regard to Mr [A]’s evidence and finds that Mr [A] has embellished his evidence about the applicant’s political activity.
105. The Tribunal has had regard to the applicant’s evidence regarding his involvement in BNP Australia as [Position 1], sending emails and being active on social media. In assessing this evidence, the Tribunal notes that it is difficult to determine the authenticity of the emails and online material, its source and the author.
106. In this matter the Tribunal also notes that it has no way of verifying that the applicant personally operated the [Social Media 1] account or sent emails using the pseudonym [Alias 1]. As detailed above the Tribunal finds that using social media and sending emails in a false name is inconsistent with a person who claims to be an emerging leader who held the position of [Position 1] of the BNP in Australia. Secondly, the Tribunal finds the applicant did not compose the email communication and when questioned at the hearing he had limited knowledge about the content. It seems unusual that he would be tasked to type short messages, send emails in circumstances when they were composed by another person and could have been easily sent to the other people without the applicant’s involvement. Looking at the evidence as a whole the Tribunal has given email evidence little weight in assessing the applicant’s claims for protection and does not accept that they are a genuine expression of the applicant’s political opinion.
107. The Tribunal is however prepared to accept the applicant was part of the Bangladeshi community in Australia who support the BNP party as an ordinary supporter. The Tribunal does not accept the applicant was a leader or held any position within the BNP in Australia. The Tribunal accepts the applicant appeared in some of the photographs posted on social media and took part in a demonstration when the Bangladesh Prime Minister visited Australia. In assessing the applicant’s claims the Tribunal notes however that there is no evidence to support the claim the applicant’s identity would be known to the authorities in Bangladesh because of social media posts. The Tribunal finds that it is mere speculation that the Bangladesh authorities would be able to recognise the applicant from media footage of the protested during the visit of the Bangladesh Prime Minister to Australia in 2018. The Tribunal was not referred to any media reporting that depicted the protest activity in Bangladesh.
108. As detailed above the applicant did not use his real name when he communicated on social media or when sending emails which casts doubt on the evidence provided in his father’s statement that the applicant’s activities are known in Bangladesh because he “continuously writes and shares posts in different social media including [Social Media 1] against the Awami League.”
Well-founded fear of persecution
109. As detailed in the attachment to this decision DFAT reports that, under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges, and travel bans. Active members of opposition political parties and auxiliary organisations who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. This risk is elevated around times of heightened political tension, including elections. Those who are members of opposition political parties and auxiliary organisations but who do not engage in political activities and demonstrations face a lower risk of arrest, although this may vary according to location and timing.[7]
[7] DFAT Country Information Report Bangladesh 22 August 2019 [3.61–3.70]
110. Next, the Tribunal must have regard to his profile and assess the applicant’s claims looking to the reasonably foreseeable future.
111. The Tribunal does not find the applicant will be politically active and take part in anti-government demonstrations if he returns to Bangladesh in the future. In making this finding the Tribunal has hard regard to the following evidence. As detailed above the Tribunal does not accept the applicant is a senior or emerging member of the BNP. The Tribunal does not accept he was an active member of the BNP in Bangladesh before he travelled to Australia. The Tribunal finds he is an ordinary supporter of the BNP. He departed Bangladesh as an [age]-year-old student seeking to study in Australia. He has never voted in Bangladesh and was not present during the 2008, 2014 and 2018 elections. The Tribunal notes the applicant only became involved with BNP Australia in late 2014 or 2015, about seven years after he arrived in Australia. It needs to be noted that the applicant was free to voice his anti-AL government political opinion as soon as he arrived in Australia. He chose not to do so. The Tribunal gives little weigh to the explanation that he lost contact with Mr [A] when he first arrived in Australia and did not know about the existence of BNP Australia. It seems implausible that that someone who claims to have been a BNP political activist, who escaped persecution and is considered an emerging leader would not make enquires within his own community in Australia and connect with his political party. The Tribunal would have expected the applicant to have commenced his involvement with BNP Australia soon after he arrived in Australia if he was a high-profile political activist and emerging leader in the community. Importantly, the Tribunal finds that the applicant chose to voluntarily return to Bangladesh on two occasions and claims he kept a low profile and did not speak out against the government. The Tribunal finds his conduct is inconsistent with his claim that he fears persecution in Bangladesh. The Tribunal further finds that the applicant was able to freely enter and exit Bangladesh in 2011 and 2014 which would suggest he was not a person of interest to the authorities. To be clear, the Tribunal does not accept that the applicant is a political activist, leader or candidate. The Tribunal does not accept that he would a targeted by the AL in Bangladesh because of his political profile as an ordinary supporter of the BNP.
112. As detailed above, the applicant did not refer to his fear of persecution in Bangladesh in his application for Ministerial Intervention made in November 2015 and waited for approximately 8 years before he applied for protection after he had exhausted other options of remaining in Australia.
113. The Tribunal finds that his involvement with the BNP activities in Australia coincides with his protection visa application. For example, the Tribunal notes that the earliest email about his involvement with the BNP in Australia was provided by the applicant is dated June 2016, after he lodged his protection visa application.
114. In conclusion, looking to the reasonably foreseeable future, having assessed the applicant’s cumulative claims, the Tribunal is not satisfied that there is a real chance the applicant will face serious harm if he returns to Bangladesh because he is a person holding and supporting the political ideologies of the BNP, he is opposed to the AL or because he is a member of the Bangladesh diaspora who is opposed to the AL. The Tribunal finds his fear of persecution is not well-founded.
115. 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).
Complementary protection
116. 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).
117. Unlike the criterion in s 36(2)(a), which is subject to s.5J(6), there is no ‘bad faith’ exception for the complementary protection criterion.[8] The Tribunal has therefore considered the social media evidence under the complementary protection criteria.
[8] SZRQR v MIAC [2013] FMCA 21 at [13]. This is because s.91R(3) is expressed to refer directly to the Refugees Convention. See also SZRSA v MIAC [2012] FMCA 1187 at [38], SZSJC v MIBP [2013] FCCA 1755 at [89], SZSNY v MIMAC [2013] FCCA 1465 at [24], and SZRLB v MIBP [2014] FCCA 2851 at [47], [56] and [61].
118. In assessing this evidence, the Tribunal notes that it is difficult to determine the authenticity of the online material, its source and the author. In this matter the Tribunal also notes that it has no way of verifying that the applicant personally operated the [Social Media 1] account or sent emails using the pseudonym [Alias 1]. As detailed above the Tribunal finds that using social media and sending emails in a false name is inconsistent with a person who claims to be an emerging leader who held the position of [Position 1] of the BNP in Australia. Looking at the evidence as a whole the Tribunal has given the [Social Media 1] evidence about his protest activity and BNP involvement in Australia little weight in assessing the applicant’s claims for protection. The Tribunal does not accept that this material is indicative of the applicant’s genuine expression of his political opinion. The Tribunal further finds that the applicant is not a person of interest to the authorities in Bangladesh because he has posted pro-BNP material and anti-AL government material on social media under a false name. The Tribunal does not accept the authorities are aware of this material or that it has anything to do with the applicant. The Tribunal further finds it remote and speculative to suggest that the applicant will be identified by the authorities because his photographs appear on [Social Media 1] or in some media coverage in Australia or Bangladesh.
119. As detailed above the Tribunal did not find the applicant’s evidence about his political activity in Bangladesh and Australia to be credible. The Tribunal finds the applicant is not a political activist or emerging leader of the BNP party. He departed Bangladesh as an [age]-year-old student seeking to study in Australia. He has never voted in Bangladesh and was not present during the 2008, 2014 and 2018 elections.
120. The Tribunal has considered the applicant’s medical records and notes that there is some reference to the applicant suffering anxiety and stress although there is no formal diagnosis and the letter states the applicant does not have any history of mental issues in the past. The applicant claimed he was depressed because of his father’s condition. He also claims he was depressed at the time he committed [Offence 1] in 2010. The Tribunal finds that the applicant’s mental health is not a ground for seeking complementary protection in Australia. The Tribunal finds that there is no suggestion that any person would intentionally seek to cause the applicant serious harm in Bangladesh because he is suffering from anxiety and depression. The Tribunal has considered relevant authorities and notes that intent, in this context of s.5(1), requires an actual, subjective, intention on the part of a person to bring about the suffering by their conduct.[9]
[9] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]. This upheld the Full Federal Court judgment in SZTAL v MIBP (2016) 243 FCR 556.
121. In conclusion, for the reasons stated above, the Tribunal does not accept on the evidence before it, 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 because of his mental health, his actual or imputed political opinion or for any other reason.
122. 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).
123. 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
124. The Tribunal affirms the decision not to grant the applicant a protection visa.
Christopher Smolicz
Member

ATTACHMENT
Country Information
DFAT Country Information Report Bangladesh 22 August 2019
Bangladesh has long had a two-party political system dominated by the Awami League (AL) and the Bangladesh Nationalist Party (BNP). The AL has traditionally been broadly secular, liberal, rural-based and broadly in favour of relations with India, while the BNP has traditionally been more accommodating of political Islam, conservative, and urban-based. The parties do not necessarily strictly adhere to these policy platforms. In recent years, for example, the AL has worked to cultivate close ties with conservative Islamists.

The relationship between the two parties is characterised by a longstanding political and dynastic rivalry, which has increased over time. Both parties derive their legitimacy from their claim to be the true heirs of Bangladeshi nationalism: the AL led the independence movement before and during the 1971 civil war, while the BNP holds as its institutional basis the ideology of Bangladeshi nationalism. The rivalry between the two parties is also deeply personal at the highest levels: the AL’s leader, Sheikh Hasina, is the daughter of the ‘Father of the Nation’ Sheikh Mujibur Rahman and the BNP’s leader, Khaleda Zia, is the widow of the party’s founder, former General and President Ziaur Rahman. Sheikh Mujibur Rahman and Ziaur Rahman were both assassinated in office, and their respective parties view them as martyrs.
Politics in Bangladesh generally centres on political personalities, and social, political and workplace connections, alongside or instead of broader party policies. Political patronage to particular figures is a motivating factor in voting, campaigning and party membership. Similarly, family alliances tend to be very important. Both of the major parties are organised into auxiliary organisations, for example student leagues or women’s leagues, sometimes based around particular professions, such as lawyers or doctors …
Being a member of a political party or one of its auxiliary organisations may assist in getting a job…. There are, however, a very large number of job seekers in Bangladesh, and such
membership is unlikely to be the sole determinant of whether or not someone is able to gain employment. Social networks and personality-driven politics are important in Bangladesh. Payment of bribes to secure employment is also common, along with patronage and cronyism.
DFAT has not seen evidence of forced recruitment to political parties, and considers it unlikely to occur. Parties hold membership campaigns each year, through which parties recruit large numbers of members. According to a 2018 survey by the Asia Foundation, around 80 per cent of Bangladeshis have a limited interest in politics, and those that do are not necessarily members of any party.
Since independence, the two parties have, for the most part, alternated in the roles of ruling party and opposition. The ruling party’s affiliated organisations have historically controlled all public institutions while that party has been in power, and both the AL and BNP have used the state machinery against government opponents while in office.
Since it came to power in 2008, the AL has considerably restricted the activities of opposition
political parties, particularly the BNP and JI…. These restrictions have included:
·     using police and other security forces to arrest thousands of opposition political party members and supporters, often in conjunction with political demonstrations;
·     using police and other security forces to prevent opposition parties from holding meetings and demonstrations; and
·     pressuring opposition candidates to withdraw from local and municipal elections, including through preventing them from submitting election nominations.
Authorities have also prevented opposition figures from leaving the country. Many, including former BNP Prime Minister Khaleda Zia, have faced legal sanction, including sedition charges. In October 2017, authorities issued two further arrest warrants for Khaleda Zia, who was at the time travelling outside Bangladesh and who has spent extended periods in custody.
While the frequency of political blogging has reduced within Bangladesh, most political blogs about Bangladesh are now written outside the country …. Major political parties have a strong presence abroad, including in Australia. It is unclear whether local party activists based abroad actively monitor social media and/or report back to party headquarters in Bangladesh, but DFAT assesses that this is possible.
DFAT assesses that, under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges, and travel bans. Active members of opposition political parties and auxiliary organisations … who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. This risk is elevated around times of heightened political tension, including elections. Those who are members of opposition political parties and auxiliary organisations but who do not engage in political activities and demonstrations face a lower risk of arrest, although this may vary according to location and timing.[10]
[10] DFAT Country Information Report Bangladesh 22 August 2019 [3.61 -3.70]
……
Like the AL, the BNP has a large diaspora network and engages strongly with expatriate Bangladeshi citizens and people of Bangladeshi descent living in other countries, including Australia. BNP members who are not Bangladeshi citizens (but who live in diaspora communities) claim that they have had visa applications to visit the country denied. DFAT does not know whether diaspora organisations report back to the domestic party on activities of their local BNP branch.
BNP figures allege that they have been subjected to enforced disappearance after raids on private homes and party offices... While such allegations typically involve houses being raided at night, daylight raids on party offices have also been reported. The BNP claims that authorities have frequently arrested their supporters during protests for alleged criminal damage or assault on police with little supporting evidence, while alleging that violence against BNP supporters perpetrated by AL members occurs with impunity.
Former BNP Prime Minister Khaleda Zia was convicted and sentenced to five years’ imprisonment on graft charges in February 2018, and separately sentenced to seven years’ imprisonment for corruption in October 2018. The BNP claims that the charges against Zia are politically motivated and that her treatment while in prison has been in breach of her human rights.
DFAT assesses that allegations of violence against BNP figures are credible, and that high-profile figures are more likely to be targeted by charges that may be politically motivated. DFAT assesses that any BNP member who actively opposes the AL government may be targeted for criminal charges, especially if they are involved in violent protests.[11]
[11] DFAT Country Information Report Bangladesh 22 August 2019 [3.77 – 3.82]
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.
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