1620344 (Refugee)

1620344 (Refugee) [2020] AATA 4142 (16 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620344
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Tania Flood
DATE:16 July 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 July 2020 at 4:14pm
CATCHWORDS
REFUGEE – Protection visa – Bangladesh – political profile – member of the BNP –lack of knowledge of basic principles of the party– criminal offence – able to depart Bangladesh – fabricated claims – credibility concerns –decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 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 7 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 12 February 2016. The delegate refused to grant the visa on the basis that there is not a real chance the applicant will suffer serious harm on return to Bangladesh for reason of his political opinions. Nor did the delegate consider there is a real risk that he would suffer significant harm for the same reasons.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Bangladesh or reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively whether 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
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information provided in the application for a Protection visa the applicant was born on [date] in Bangladesh. He is married with [children] and his family, including his widowed mother reside in [Bangladesh]. He declared his religion to be Islam and his occupation to be [Occupation 1].
He last arrived in Australia [in] October 2015 holding a [temporary] visa. He cited numerous business trips to [various countries] between [December] 2014 [and] June 2015. Between January 2012 and December 2014, he was the proprietor of [a] business in Dhaka, Bangladesh.
He cited a criminal charge pending against him dated [June] 2015.
He claims he was actively involved in BNP politics and was an office bearer as [Position 1] of the Bangladesh Jatiobadi Juba Dal, [a specified] Committee.
He claims that after the Awami League (AL) came to power in 2008 they targeted his political colleagues and himself. One person died in a collision between the AL and the BNP in his local area and after that the AL activists and leaders attacked them and ransacked their homes and instigated false charges against them.
He claims that in June 2015 the police started looking for him. They came to his house and told his relatives that he was accused of a crime. After that he went into hiding and later left Bangladesh.
He fears if he returns to Bangladesh he will be arrested and killed by the RAB, police and/or AL activists. He claims the police are continually searching for him. His family members also relocated and are living in hiding.
He claims his father was also killed by AL cadres because of his BNP allegiance.
In support of his claims the applicant provided the following documentation:
Letter from [President] of the BNP, [a] Sub District, Munshigonj. The letter states that the applicant’s father was a victim of a physical attack by opposition party members and died in 1984. It further states that the applicant joined the BNP youth party in 1986 and was elected a member of the executive committee of Jubodol Baluchar Union in 1990 and [Position 2] of the Union Youth Group in 1996. In 2007 he was elected [Position 3] of the Youth Group in [a] Sub District. As a result of his political activities he became a victim of the AL who planned to kill him after threatening him in different ways. [The president] states that the applicant is living abroad for the sake of his life.
Letter from Mr [A], [of] BNP Australia which attests that the applicant was elected [Position 3] of Bangladesh Jatiyotabadi Jubadal [a] Branch in 2007. He states that the applicant was elected [Position 3] of Jubo Dal Australia in 2016 and participates in all organising activities of the BNP Australia Committee since his arrival. Mr [A] states that the applicant is targeted by the AL in Bangladesh.
A certificate dated 30 September 2015 issued by Dr [B], Assistant Professor of [a] University, Dhaka. The certificate states that the applicant was under his treatment for four days and that [in] January 2015 [he was] severely wounded by torture inflicted on him by AL cadres. It is stated that due to the injury [he] sometimes suffers from memory loss. Dr [B] states that the applicant is staying abroad to save his life.
A translated copy of a First Information Report and Charge Sheet which implicates the applicant and others in the burning of a van in which the driver was killed on the night of [date] June 2015.
Delegates Decision
The delegate accepted the applicant is a member of the BNP but did not accept he was targeted by the AL due to his political profile or involvement in BNP activities. Nor did the delegate accept the applicant left Bangladesh due to a genuine fear of being harmed there.
Submissions to the Tribunal
In a submission to the Tribunal dated 1 December 2016 the applicant states:
The delegate overlooked his supporting evidence including the letter from his doctor and relied on the DFAT report of 2014 instead of taking account of other sources such as the US State Department Report or Amnesty International reports on political violence in Bangladesh. It is submitted that the worst violence involves the opposition political activists rather than the government authorities.
Tribunal hearing
With his prior consent, the applicant appeared before the Tribunal by MS Teams video link on 7 July 2020. He was accompanied by his representative throughout the proceedings.
During the hearing the Tribunal discussed with the applicant his background in Bangladesh, his involvement with the BNP in Bangladesh and Australia and the claimed problems he encountered in Bangladesh on account of his political opinions and activities. The applicant maintained that he fears returning to Bangladesh because he may once again fall victim to physical violence from AL activists and also due to the fact he has outstanding criminal charges against his name.
DFAT’s latest country information report (22 August 2019)
Recent History
2.3      Bangladesh has experienced significant political, social and economic turmoil since independence. A succession of assassinations and military coups d’etat led to military rule for much of the 1970’s and 1980’s, before a series of popular mass democratic movements led to the establishment of parliamentary democracy in 1991. Elections between 1991 and 2006 saw power alternating between the Awami League (AL) and the rival Bangladesh Nationalist Party (BNP). Bangladesh briefly returned to military rule in 2007 following violent pre-election protests, but the military returned power to the AL after its election victory in 2008. The AL remains in power, having comprehensively won the last two national elections in 2014 and 2018. Both elections were marred by violence, boycotts, and allegations of fraud.
2.4      Bangladesh has achieved impressive levels of economic growth since the 1990’s, lifting large numbers of Bangladeshis out of poverty. The country continues to face numerous challenges, however, including growing authoritarianism, extreme political polarisation, an escalation in tensions between Islamists and secularists, marginalisation of religious and ethnic minorities, and increasingly politicised national institutions.
Political Opinion
3.61     Bangladesh has long had a two-party political system dominated by the AL and the 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.
3.61     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 leaders, 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.
……
3.65     ….. According to a 2018 survey by the Asia Foundation, around 80 per cent of Bangladeshi’s have a limited interest in politics, and those that do are not necessarily members of any party.
3.66     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.
3.67     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.
…….
3.70     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.
BNP
3.82     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.
Politically Motivated Violence (PMV)
3.92     Bangladesh is historically prone to high levels of PMV. Today, PMV manifests in the form of violent clashes between supporters of different factions of the same party, supporters of rival parties, between party supporters and law enforcement agencies, and between issues-based, politically motivated protester groups and law enforcement agencies and/or party auxiliary organisations.
3.93     The number of casualties resulting from PMV varies from year to year. In 2018, Odhikar reported that 120 people were killed and 7,051 were injured in PMV related incidents, compared with 77 deaths and 4,635 injuries in 2017 and 215 deaths and 9,053 injuries in 2016. The January 2014 national elections were the most violent in Bangladesh’s history with months of PMV leaving hundreds dead and thousands injured across the country. As was the case in 2015, 2016, and 2018 local government and council elections in March 2019 continued to be marred by high levels of PMV. The period leading up to the December 2018 national elections was also marked with some violence, primarily of an inter-party nature, but PMV related deaths and casualties were significantly down and the aftermath was relatively peaceful compared with national elections held five years earlier.
Exit and Entry Procedures
5.24     The Department of Immigration and Passports conducts immigration checks and maintains a list of convicted criminals and persons wanted by security forces and intelligence agencies. The department mostly uses the list to determine whether to issue passports but may also use it to prevent people from leaving the country.
…… DFAT is aware of cases in which authorities have prevented both senior members of the BNP leadership and ordinary BNP members from leaving the country.
Conditions for Returnees
5.27     Bangladesh accepts both voluntary and involuntary returnees. ….. DFAT has no evidence to suggest that recent returnees have received adverse attention from authorities or others.
…..
5.29     Bangladesh has a very large diaspora, and tens of thousands of Bangladeshi’s exit and enter the country each year. It is unlikely that authorities have the capacity to check on or monitor each of these people, and the vast majority of returning Bangladeshi’s will re-enter the country without incident. If, however, those returning have a particular political profile, particularly within the BNP, it is likely that their entry into Bangladesh will be noted. DFAT is not aware of an instances of returnees being detained at the country’s borders in relation to political activities conducted abroad.
5.30     DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia. This is unlikely, however, for returnees without such a profile.
Fraud
5.39     The increasing use of biometric data collection has limited opportunities for fraud because of the greater capacity for authorities to check suspicious identity documents. DFAT assesses, however, that the use of fraudulent documents and fraudulently obtained genuine documents remains widespread. This risk is exacerbated given that civil documentation is generally held by local issuing offices in paper-based files without networked systems.
5.43     Political party documents may be subject to fraud, as they do not contain the security features of other documents. The patronage-based nature of political participation means that an analysis of the person’s political relationships may be more useful in determining their membership of a party. Obtaining such documents fraudulently may be facilitated through patronage networks, in which case it is probable the bearer is a member of the party.
5.44     Court and police documents may be fraudulently obtained, for example by bribing police for minor offences to be removed from a record. Corruption is widespread in the courts and the police and it is possible that genuine documents are fraudulently obtained as part of this process. Local media often reports on cases where fake court documents are created for personal gain. The court system and police system are heavily bureaucratic and often paper based, which can limit the ability to detect fake documents.
……. DFAT assesses that fraudulent court documents, or court documents that are obtained fraudulently, are relatively common in Bangladesh.
FINDINGS AND REASONS
Country of reference

The applicant has produced a copy of his Bangladeshi passport which verifies his claimed identity and nationality. In the absence of any information to the contrary the Tribunal accepts the applicant is a citizen of Bangladesh.
Findings in relation to the claimed past harm
Having carefully considered all the available information and evidence before it, the Tribunal is not satisfied that the applicant has been truthful about the events he claimed occurred in Bangladesh prior to his departure from the country. The Tribunal’s reasons for this conclusion are as follows:
The applicant claims that he was attacked in January 2015 when members of RAB, the police and the AL came to his home and confronted him over the prominent role he played in the local branch of the BNP. He said the attack was designed to persuade him to leave the BNP and use the influence he wielded in the community to support the AL.
Relevantly, the applicant claims a long involvement with the BNP. He claims he became a member of the youth wing of the party in 1986 and went on to become an office bearer of the youth wing in his local area from 2007 until he departed Bangladesh. In support of his claims the applicant has produced a letter from the President of the BNP in his area which states he joined the BNP youth party in 1986 and was elected a member of the executive committee of Jubo Dal Baluchar Union in 1990 and [Position 2] of the Union Youth Group in 1996. In 2007 he was elected [Position 3] of the Youth Group in [a] Sub District.
During the hearing the Tribunal asked the applicant to name any positions he has held in the BNP and he said he only ever held the position of [Position 1] of the local Jubo Dal from 2007. He described his role as a senior position and said he held a high political profile in his area.
When the Tribunal pointed out that his letter of support from the BNP suggests he held various other positions over the years he said that it is not possible to become a [Position 1] without first working your way up through the organisation. He said he might have misunderstood the question and thought he was being asked to name the highest position he has held. He said he didn’t realise the Tribunal was interested in knowing the steps he went through to obtain the position of [Position 1].
The Tribunal accepts there is a likely transition through the political ranks to reach the position of [Position 1] and ordinarily would have given some weight to this response. However, when questioned further about the policies and principles of the BNP the applicant’s responses were vague and lacking in any convincing detail. Despite the Tribunal repeatedly asking the applicant to articulate any key policies or principles of the BNP he simply maintained that the BNP was an honest and democratic party whereas the AL was not. In addition, in view of his claimed involvement with the BNP since 1986 the Tribunal found it particularly troubling that he was unable to name with any accuracy even the four main principles of the BNP – Belief in Almighty Allah; Nationalism; Democracy; Socialism as cited on the BNP website. Instead the applicant answered that the BNP’s main priority is to freedom fighters; to community welfare and to allowing Bangladeshi’s living abroad to vote. The Tribunal did not consider his responses in keeping with what could reasonably be expected from a long-standing member and office bearer of the party.
The Tribunal is prepared to accept the applicant may favour the BNP over the AL. However, in view of the inconsistency between his oral evidence and the information contained in the letter of support from the President of the BNP and his apparent lack of knowledge of even the most basic principles of the party the Tribunal is not prepared to accept that he was a member of the BNP or ever held a leadership position within the BNP.
The applicant claims that it was due to his political profile and local influence that he was harassed and ultimately attacked in his family home in January 2015. During the hearing the Tribunal asked the applicant when his troubles with the AL commenced and he said that he first had a problem in 2015. The Tribunal put it to the applicant that it is difficult to accept, in the political environment of Bangladesh, that a longstanding, office bearing member of the BNP would have managed to avoid any serious harm at the hands of his political opponents over such a long period of engagement. The Tribunal referred to the national elections in 2008 and 2014 which were reportedly hotly contested and marred by violence and asked how it was he encountered no significant problems until 2015. He said there was some other harassment before this but nothing comparable to what occurred in 2015. He said that as a leader one had to accept and live with the small issues which arose but that ultimately he relocated in 2014 to an area some 10kms away to avoid such treatment. The Tribunal remained unconvinced that a person with such a high profile in the BNP and who claimed to actively work on the election campaigns of local candidates could have avoided more serious confrontations with AL cadres until 2015.
The Tribunal then asked the applicant about the severity of the assault in 2015 and he said he received injuries [which] required him to be hospitalised for four days in a medical clinic. He described the beating as severe and said he was close to death. Noting this, the Tribunal asked the applicant if he returned to his home area after the beating and he said he did but not as frequently and with caution. He said he needed to see his family and resolve issues with relatives as well as attend to his political responsibilities.
In support of his claimed attack the applicant has produced a letter from a Dr [B] which states he treated the applicant for four days after he was attacked by AL cadres [in] January 2015. The letter also states the applicant sometimes suffers from memory loss as a result of the attack. During the hearing the Tribunal questioned the basis for this latter analysis noting that the doctor only claimed to treat him for four days. The applicant responded that he returned to see the doctor a few times while his injuries were healing and/or consulted him on the phone. In any event the Tribunal remains concerned about the doctor’s observation given the relatively short period of interaction with his patient. The Tribunal is concerned the medical evidence may have been fabricated in a bid to support his claims.
Having considered the available evidence, the Tribunal is not persuaded that the applicant was the subject of an attack at the hands of the AL in 2015. The Tribunal notes the claimed rationale for the attack but for the reasons provided above it does not accept the applicant was a high-profile member of the BNP and therefore more susceptible to such a targeted attack. The Tribunal has also placed much weight on the applicant’s willingness to make return visits to the area where he was savagely attacked. The Tribunal notes the reasons given for his return visits but as discussed with him during the hearing if he had relocated just 10kms away from his home area in 2014 it could reasonably be assumed that his family members and political colleagues could have consulted him in his new location if necessary in order to preserve his safety. While the Tribunal acknowledges the letter from Dr [B] lends some support for his claim, as discussed with the applicant during the hearing country information indicates a high prevalence of fraudulent documentation in Bangladesh. This, together with the additional concerns expressed herein caused the Tribunal to give little weight to this medical evidence.
When the evidence is considered overall, the Tribunal is not satisfied that the applicant was beaten by members of RAB, the police or the AL in January 2015 as is claimed.
The applicant also asserts that following the claimed attack in January 2015 the AL instigated a false case against him and other BNP members in his area. During the hearing the Tribunal asked the applicant to detail the legal case which has been brought against him. His first response to the question was that the AL created an excuse to cause problems for him because they did not want him to continue his support for the BNP. When pushed for further details of the “excuse” or the legal case made against him he responded that he is accused of being a bad person and should not return to his country. The Tribunal notes the applicant has produced a charge sheet and a first information report which clearly outlines the charges made against him. That is that on the night of [date] June 2015 supporters of the BNP, including the applicant, attacked a covered van. A hand bomb was thrown, and a blaze occurred, causing the death of the driver. That the applicant seemed puzzled and appeared to have no knowledge at all of the serious charges brought against him is of great concern to the Tribunal.
Also, the applicant’s evidence as to how he learnt about the charges made against him is inconsistent. The applicant’s written claims state that the police started looking for him in June 2015 when they came to his house and informed his relatives that he was accused of a crime. In his oral evidence to the Tribunal the applicant stated that he learnt about the charges through his party leaders. When given the opportunity to respond to this at hearing the applicant at first remained silent and later in the proceedings when given a further opportunity to respond he replied he had nothing further to say about it. In the Tribunal’s view this also reflects poorly on his credibility.
Adding to the Tribunal’s concerns is the fact the applicant was able to depart Bangladesh in 2015 despite claiming to be wanted over a criminal offence. When this was discussed with him during the hearing he said that he was advised by his party leaders to contact airport officials in advance of his flight to arrange payment for safe passage out of the country. When it was put to him that it is troubling he has never mentioned this fact in any of his previous evidence the applicant said that nobody asked him the question before. The Tribunal has considered this response but considers the omission of this detail from his written claims to be significant. The Tribunal is of the view the applicant has embellished his evidence through the late introduction of the claimed bribery of airport officials and remains concerned that he was able to depart Bangladesh while being wanted by the authorities over a criminal offence.
On the question of the veracity of the charge sheet and first information report tendered as evidence by the applicant, the Tribunal notes his response at hearing to this matter was agreement that fraud occurs but disbelief that court documents can be obtained fraudulently. The Tribunal places much weight on the DFAT report and notes that its assessment on the availability of fraudulent documents is supported by a range of other independent reports.[1] Therefore, the Tribunal has preferred the information contained in the DFAT report to the applicant’s assertion.
[1] Immigration and Refugee Board of Canada, Bangladesh: Reports of fraudulent documents (2011-2015) BGD105263.E; French Office for Protection of Refugees and Stateless Persons (OFPRA), Report on the mission to the People’s Republic of Bangladesh from 2 to 14 April 2015; European Migration Network, Ad-hoc Query on assessment of documents submitted by asylum seekers from Bangladesh, Responses from 21 countries, compilation produced 15 December 2014
In light of the applicant’s scant knowledge of the serious legal case brought against him, his differing account of how he became aware of these charges, his ability to freely depart Bangladesh and given the reportage on the availability of fraudulent documentation in Bangladesh, the Tribunal does not accept the applicant has criminal charges, false or otherwise, pending against him.
The applicant’s written claims also indicate that he went into hiding in 2015 with his wife and children after his relatives were informed he had criminal charges made against him. In his evidence to the Tribunal he said that he moved with his wife and children to a different location some 10kms from his home area in 2014 for two reasons – 1) because it was close to his business activity and 2) to avoid harassment from AL members. He confirmed to the Tribunal that he continued to work in his [business] until a few months before his departure from Bangladesh and also returned to his home location on occasion to see family and attend to BNP activities. As discussed with him his activities do not support that he was living in hiding for any period of time before his departure from Bangladesh. In any event, in light of the concerns herein, the Tribunal considers it likely he moved to the second location purely out of convenience. The Tribunal does not accept that his wife and children remain living there in hiding.
In summary, the Tribunal is not satisfied that the applicant was a member, office bearer or otherwise high-profile member of the BNP in Bangladesh. The Tribunal is not satisfied that he was attacked by AL cadres in 2015. The Tribunal is also not satisfied that he is the subject of criminal charges made against him in 2015 in Bangladesh.
For all the above reasons the Tribunal is satisfied that there is not a real chance the applicant will suffer serious harm if he returns to Bangladesh for reason of the events he claimed occurred in connection with his political activity prior to his departure in 2015.
Is there a real chance the applicant will suffer serious harm if he returns to Bangladesh on account of his political opinions?
For the reasons expressed above the Tribunal accepts the applicant may be a supporter of the BNP but does not accept he was a member or office bearer of the BNP or that he suffered any serious harm on account of his support for the BNP prior to his departure in 2015.
Since 2016 the applicant claims he has been attending meetings and seminars and celebration events organised by the BNP in Australia. He described this involvement as being rather infrequent noting that his attendance at such events could be monthly, twice or thrice monthly depending on his availability. When asked if he has ever held a position within the BNP Australia he said he has not.
Noting his response in respect of his level of involvement with the BNP in Australia the Tribunal questioned why the letter of support from Mr [A] states he was elected [Position 3] in 2016. The applicant responded that he forgot to mention that because as it turned out he only filled the position for a short while. The Tribunal was not persuaded by his response. As discussed with him he was not asked about the timing or length of any positions held but whether he has ever held a position with the BNP in Australia to which he clearly and unequivocally answered “no”. In light of this the Tribunal has concerns about the veracity of the information contained in the letter from Mr [A].
On the available evidence the Tribunal considers the applicant has played a very minor role in BNP politics in Australia through his infrequent attendance at BNP gatherings. There is nothing before the Tribunal to suggest that the applicant is known to the authorities or the AL in Bangladesh on account of his involvement with the BNP in Australia and the Tribunal can see no reason why he would be harmed in Bangladesh for this reason.
The Tribunal is satisfied that if the applicant returns to Bangladesh he may continue to support the BNP but it does not accept that he will be treated any differently in Bangladesh than he was in the past for reason of his support. Relevantly, the applicant claims his brother is also a supporter of the BNP and continues to live and work freely in Bangladesh.
In forming the above opinion the Tribunal has, as is required, and discussed with the applicant at hearing, also had regard to the latest DFAT country information report dated 22 August 2019, which concedes that senior members and high profile activists of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges and travel bans. Reports by Human Rights Watch and others mentioned by the applicant in his submission (Amnesty International and the US Department of State) provide a similar analysis of the ruling party’s treatment of its political opponents.[2] However, the Tribunal is not satisfied that the applicant is a senior member or high profile BNP leader or supporter or that he would engage in activities likely to heighten his risk profile.
[2] ‘Caught between fear and repression: Attacks on freedom of expression in Bangladesh’, Amnesty International, 3 May 2017; ‘We don’t have him: Secret detentions and enforced disappearances in Bangladesh’, Human Rights Watch, 6 July 2017; ‘Country Reports on Human Rights Practices for 2017 – Bangladesh’, US Department of State, 20 April 2018
The Tribunal notes the applicant’s claim that his father was killed by the AL in 1984 but has dismissed as remote any risk of harm to him for this reason. This is because the applicant has supported the BNP himself since 1986 and as can be seen from the above it is the Tribunal’s belief that he has not suffered the serious harm claimed in Bangladesh for this reason or due to any involvement his father might have had in the BNP. Again, the Tribunal does not accept that the applicant will be treated any differently in Bangladesh than he was in the past for reason of his support of the BNP should he return now or in the reasonably foreseeable future.
For all the above reasons the Tribunal is satisfied that there is not a real chance the applicant will suffer serious harm if he returns to Bangladesh for reason of his past or present political opinions or for any other reason outlined at s.5J of the Act. The Tribunal finds the applicant does not a have a well-founded fear of persecution in Bangladesh. Therefore, he does not satisfy the criterion for the visa at s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated, the Tribunal is not satisfied 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. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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.
…

[2020] AATA 4142

16 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

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