1620568 (Refugee)

1620568 (Refugee) [2023] AATA 4683 (29 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1620568
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Christine Cody
DATE:29 October 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 29 October 2023 at 1:37pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – fear of an individual who is an alleged terrorist – owed the applicant a large sum of money – credibility concerns – evolving claims – omission to declare the right to enter and reside in third countries – delay in seeking protection – reliability of document evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 424A
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 24 November 2016 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The primary visa applicant (the applicant) married the second applicant [in] September 2004 and they have two children (the third and fourth applicants). The applicants claim to be citizens of Bangladesh. [In] October 2014 they left Bangladesh for the last time, travelling to [Country 1]. They all travelled on their passports issued legally in Bangladesh.[1]
[1] Source: Application forms.
They visited the Australian High Commission in [Country 1] on 24 October 2014. They applied for their visitor visas on 24 October 2014. Their Australian visitor visas (Subclass 600 were issued in [Country 1] on 3 November 2014, valid for entry until 3 November 2015. They arrived in Australia [in] December 2014.[2] The applicants applied for protection visas on 22 January 2015.[3] The applicants provided application forms for all four family members, stating that the applicant has claims for protection, but his family members do not (Form B). The content of the application forms however made it clear that all applicants were making claims. Also provided was a statement of claims dated 22 January 2015. In support of the applications the applicants provided various documents including birth certificates and extracts of passports; it was stated in the form that further (unspecified) documents will be submitted.
[2] Source: Application forms and visa grant on the Department file. The fourth applicant is stated in the application form to have arrived in Australia one year later [in] December 2015, however the Tribunal accepts that this is an error.
[3] Decision record provided to the Tribunal by the applicants.
The applicant attended an interview with the delegate, where he provided further documents. The delegate refused the applications, not accepting that the claims made by the applicants were true. The applicants lodged an application for review to the Tribunal.
Claims and evidence before the Department
Background
The application forms contain the following claims as to the applicant’s background:
[The applicant] was born in [year], in Chandpur. He speaks, reads and writes Bengali and English, and he speaks Hindi. His religion is Muslim. He resided in Bangladesh until December 2011. He undertook a [degree] at [University 1], graduating in 1990. Thereafter his employment history before his arrival in Australia is as follows:
·     Feb 1990–Nov 1992: [Position 1] in Dhaka
·     Dec 2003–Jun 2006: [Position 2], importing business, Dhaka
·     Mar 2007–May 2011: [Position 3], export-import, Dhaka
In December 2011 he travelled to [Country 1] and from December 2011–December 2014 he was the [Position 4] of a [specified] business, [Company 1], at [Address 1], [Country 1]. In October 2014 he returned to Bangladesh, residing with his wife at an address in Dhaka.
His previous visa/travel history was set out as follows:
·     From [date] November 1995 to [date] November 1995, the applicant travelled to [Country 1];
·     From [date] June 2011 to [date] June 2011, the applicant travelled to [Country 1];
·     From [date] February 2011 to [date] February 2011, the applicant travelled to [Country 1];
·     From [date] June 2011 to [date] June 2011, the applicant travelled to [Country 1];
·     From [date] June 2011 to [date] June 2011, the applicant travelled to [Country 2];
·     From [date] July 2012 to [date] July 2012, the applicant travelled to [Country 3];
·     From [date] May 2013 to [date] June 2013, the applicant travelled to [Country 2];
·     From [date] April 2014 to [date] April 2014, the applicant travelled to [Country 4];
·     From [date] April 2014 to [date] April 2014, the applicant travelled to [Country 5];
·     From [date] April 2014 to [date] April 2014, the applicant travelled to [Country 6];
·     From [date] April 2014 to [date] April 2014, the applicant travelled to [Country 7];
·     From [date] May 2014 to [date] May 2014, the applicant travelled to [Country 8].
All the travel is described as social visits, visitor or tourism.
Further, on 8 August 2012 the applicant states that he had had an application for an Australian visa refused “due to entrypass less validity”.
The applicant’s family (his parents, [number] sisters and one brother) remain in Chandpur. The applicant is not in contact with relatives outside of Australia.
[The second applicant] was born in Comilla in [year]. Her religion is Muslim. She speaks, reads and writes Bengali and English, and she speaks Hindi. She attended university and completed a [degree] in March 2011. She has never been employed.
From September 2004 to December 2012 she lived at one address in Dhaka; she lived at a different address in Dhaka from January 2012 until October 2014.
Her past travel includes:
·     August 2012 to October 2012: social visit to [Country 1]
·     January 2014: visit to [Country 2]
·     [Date] October to [date] December 2014: social visit to [Country 1]
The second applicant’s family (her parents, [number] sisters and [number] brothers), reside in Comilla. She confirms the details of the relatives as set out in the applicant’s application form. She is not in contact with relatives outside of Australia.
She relies upon the same protection claims as the applicant.
[The third applicant] was born in Chandpur and is now aged [age] years. She speaks, reads and writes Bengali and her religion is Muslim.
She confirms the details of the relatives as set out in the applicant’s application form. She is not in contact with relatives outside of Australia.
Her past travel is the same as her mother’s.
[The fourth applicant] was born in Chandpur and is now aged [age] years. He speaks Bengali and his religion is Muslim.
He confirms the details of the relatives as set out in the applicant’s application form. He is not in contact with relatives outside of Australia.
His past travel is:
·     August to October 2012: social visit to [Country 1]
·     January 2014: visit to [Country 2]
·     [Date] October to [date] December 2014: social visit to [Country 1]
The applicants’ claims
In the applicant’s protection visa application form the applicant provided some detail:
·     When asked what will happen to him if he returns to Bangladesh he stated: my wife, my children and I will be killed by terrorists. Due to the physical, social and mental torture of terrorists, including life threatened, my wife will leave me before return to Bangladesh and suicide
·     When asked whether he sought help in Bangladesh, he stated that he sought help from the police at [Thana 1] and [Thana 2], in Dhaka, but they did not help them.
·     He didn’t relocate because they will find them in any corner of the country and kill them.
·     They will not be protected by the authorities and will not be able to relocate.
The second applicant responded to all the questions in the form in the same manner as the applicant including as to harm experienced and feared, and state protection and relocation.
The third applicant states that she experienced harm in the country (unspecified) and she tried to seek help (same as her mother). She did not try to move as her life would have been at risk. The authorities will not protect her, and she will not be able to relocate
The fourth applicant stated that if he returns to the country his life will be threatened. He said that, the same as his father, he sought help in the country after experiencing harm, he did not move as his life was threatened. He will face harm, the authorities will not protect him and he will not be able to relocate.
Statement of claims dated 22 January 2015
The statement of claims is made by all four applicants, although written from the perspective of the applicant. The following are extracts from the statement of claims:
·     The applicant is the [Position 4] of [Company 1] in [Country 1] and has been so [since] December 2011. He is also a member of the Bangladesh Business Chamber of [Country 1], and a member of [Country 1] Bangladesh Society.
·     His wife and children had dependent [visas] to stay with the applicant in [Country 1], however due to the “inconvenient study policy”, they decided to stay in Bangladesh for a better education for the children: the daughter was in Year 2 at a very well-known school in Bangladesh, and the son attended pre-school in Dhaka. The second applicant takes care of the children alone in Bangladesh.
·     The applicant had a retail shop in [Address 1], [Country 1], an area mostly frequented by Indian, Sri Lankan, Pakistani, Burmese and Bangladeshi people. His shop catered to the employees of other businesses in that area.
·     [In] December 2013, there was a significant riot involving Indian-Tamil people who reside near his shop, and police. After the riot the [Country 1] government decided to move employed foreigners to a worker dormitory which only left locals in his area. This dramatically lowered the number of customers who shopped at his shop, and affected his business and other businesses in the area, for the worse. These series of events had made his shop near pointless.
·     On 5 August 2014 to the local director [Mr A] had a discussion with the applicant. The local director made a final decision to stop the business; thus they ceased business activity on 30 September 2014. [Couple of] days later, [in] October 2014, the applicant returned to Bangladesh.
·     The applicant began setting up a new business in Bangladesh and started to arrange money to invest in his new business. He intended to use money that [Mr B] of [Thana 1], Dhaka, owed him; he owed the applicant a large sum of money. However he did not receive the money and so on [date] October 2014 the applicant made a police report in [Thana 1], Dhaka, about the money owed and “mental, social torture as well as life threats” (reference: [number]). He stated that some incidents were not included in the report as the police would not allow him to do so.
·     His history with [Mr B] was as follows: during the applicant’s business period in [Country 1] he had good relations with [Mr B] who would come to [Country 1]. The applicant gave money or goods to [Mr B] to take back to his family and sometimes he helped [Mr B] financially when he came to [Country 1].
·     [Mr B] tried to use him. On 3 May 2014, [Mr B] requested a large sum of money as a political donation which the applicant refused. When he did not receive this from the applicant he sold the goods the applicant had entrusted to him, that day, to take to Bangladesh (valued at about $10,000). The applicant didn’t previously know that [Mr B] was considered a terrorist in his area, [Thana 1].
·     After lodging the police report, on 8 October 2014 the applicant received some information that [Mr B] and his terrorist friends arranged an attack on the applicant and his family. The applicant received this information from [Mr C], who was in the same area as [Mr B]. [Mr B] and his terrorist friends were part of the present government political party and said they will never return his money. He became worried, and was constantly thinking about the danger. He did not tell his wife “due to her soft mind”.
·     On 10 October 2014, [Mr B] and 4 or 5 “terrorists” who are part of the present government political party attacked him and his wife, when they were on the way to the hospital as his wife was ill. They threatened them, swore at them, told them to withdraw the police report made on [date] October 2014, and they threatened to kill them if they saw them again anywhere in the country within the next 24 hours. Two of them threatened to extort him. The applicant and his wife were in shock and fear and returned home immediately. The applicant waited “in confidence as time went by that all these problems would go away”.
·     However on 12 October 2014, the applicant, his daughter and his brother-in-law were on their way to their daughter’s school at the same place as the previous attack, and they were attacked again. The attackers came in a microbus with weapons. They were slapped, kicked, punched and pulled off the rickshaw they were riding on. It appeared that they were trying kidnap his daughter. However, the applicant, his daughter and his brother-in-law ran across the road and escaped. His daughter was shaking in fear after the experience.
·     His wife was shocked, worried and distressed. The applicant and his wife decided to temporarily postpone the children attending school.
·     On [date] October 2014, the applicant submitted another police report (reference: [number]), to [Thana 2] in Dhaka. Again, some incidents were not included as the police didn’t allow it.
·     The applicant and his family were extremely afraid for their well-being and didn’t dare to leave home.
·     On 16 October 2014 the applicant was riding in a rickshaw and an unknown person got into his rickshaw. The man pulled out a gun and took him to a roof top of a building. There were about 9 or 10 “terrorists” waiting and the following occurred:
o   They slapped, punched and kicked him.
o   They demanded approx. AUD79,000 within 72 hours.
o   They threatened that if he failed to pay the money then they would kidnap his family or burn them with acid.
o   They said they would find them anywhere in Bangladesh and kill him and his family. They said they are not afraid of the law, the police or court.
·     The applicant did not believe he could go to the police or the court. He noted the common problem of corruption and bribery and violent crimes such as assault and robbery and murder that happen, even in front of the police. The government is unstable and cannot protect the safety of its people. The police and the law don’t protect them.
·     On 17 October 2014, the applicant and his wife decided to stop his children going to school permanently.
·     As there was no other solution, on [date] October 2014 the applicants left their valuables and left Bangladesh.
·     The applicant referred to an incident of previous harm; stating that he was a social organiser in 1995, and in 1997 he founded the [Organisation 1]. In June 2002 he was trying to help disaffected people in the community, however on 24 June 2002, the major community and some terrorists attacked him with hockey sticks which broke his left knee. He suffered for 2 years with residual damage.
Delegate’s interview
On 19 August 2015 the applicant attended an interview with the delegate.
The Tribunal listened to the recording of the interview.[4] A summary of the matters raised in the interview is set out below, and further evidence from the interview is also set out later.
[4] There is no written record of the interview in the delegate’s decision record. The Tribunal has put information from the delegate’s interview pursuant to s 424A of the Act as required.
The applicant told the Tribunal that he had given documents to the delegate at interview; the Tribunal noted that these were not on the Departmental file although reference was made to these during the interview. The applicant confirmed that he had provided copies of 4 [Country 1 visa] cancellation notices (provided to the Tribunal and marked “A”); he also said that he had provided 2 police reports with original translations (also provided to the Tribunal as discussed below). The applicant brought with him his passport.[5]
[5] As he states in his s 424A response.
The applicant said that he fears return to Bangladesh as they will immediately be murdered by [Mr B] and his group.
The applicant gave evidence similar to his statement in some respects including that he met [Mr B] in [Country 1], on 3 May 2014 he gave $10,000 worth of gold to him to take back to his family. [Mr B] did not however give the gold to his family. They tried to kidnap his daughter and they escaped. He was a businessman in [Country 1], he had returned to Bangladesh and then came back to [Country 1] with his family.
He made additional claims including that on 9 May 2014, two of his relatives went to [Mr B]’s house to negotiate, however [Mr B] tried to attack them and so they ran from the house. Other new claims are discussed below.
The delegate raised concerns about various matters including:
·     How the applicant could just give gold/money to a person without undertaking due diligence about that person. The delegate at interview put to the applicant that it did not appear credible that the applicant would give such valuable gold to a man, as the applicant already had a way of transferring money to Bangladesh (through an established money transfer system) and the delegate put to him that he would have done his due diligence about this man before giving him this. The applicant responded that in 8 or 9 months [Mr B] came to [Country 1] 4 or 5 times, they built a good relationship, many people know him and said [Mr B] was a good man.
·     The delegate said that if his business was shut down when he left [Country 1], his [visa] would have been cancelled because it is tied to his employment. This suggested to the delegate that his business did not shut down and that is why he was able to return to [Country 1] from Bangladesh and stay there until they came to Australia in December 2014. The applicant said no, his business was shut down. He gave changing evidence about when he was told by the local director his [visa] would be cancelled (as discussed below).
·     The applicant changed his claim at interview about his intentions in October 2014 and what had happened after he finished his business in [Country 1]. While his statement indicates that the business finished and he went back to Bangladesh and was getting on with his life in Bangladesh, including trying to set up a business there, this did not explain how he and his family members still had the right to enter [Country 1] on 18 October 2014. The documents he produced at interview indicated that he and his family had still had the right to enter [Country 1] 6 months after he ceased being an employee. He claimed at interview that he had wanted to continue to do business in [Country 1] with the local director (suggesting that this is why the [visas] were not cancelled).
·     The applicant changed his evidence at interview concerning his purpose in coming to Australia. He initially said he came for protection, then when the delegate suggested that he had lied to get a tourist visa, he changed and said he had intended only to visit Australia, as follows: He said that when he returned from Bangladesh to [Country 1], he tried to convince the local director that he could start another business, but he failed so that’s why he came to Australia. When the delegate asked the applicant what his purpose was in coming to Australia, he said because the guy in [Country 1] told me he would cancel my [visa] so I came to Australia so that I would have protection. When the delegate asked the applicant what he told the Australian High Commission, he said that he came as a visitor. The delegate put to him that he came to Australia for protection but that he claimed to the Australian authorities that he was coming to Australia for tourism purposes, and thus he deliberately lied to the Australian authorities. In response the applicant said “not like this, after I came here, I tried to go back to [Country 1], and also I could have gone to Canada from here”.
·     The applicant was asked why he didn’t go to the USA and he responded that when he came here they understood it is the best country to come to as it respects humanity.
·     The delegate put to him that he had multiple entry visas to USA and Canada, signatories to the Convention, and yet he chose to come to Australia. It was put to him that he may have made up his protection visa claims because he wants to stay here. He said it was not his intention to stay here, if it was, he would have come as soon as he was granted the Australian visas. The delegate suggested that the delay in coming to Australia after the visa grants indicated that there was no fear, they took their time and obtained visas and had no reason to leave [Country 1].
·     The delegate asked the applicant if he was a supporter of a political party and he said BNP Bangladesh. He is not suggesting that [Mr B] was harassing him for reason of political affiliation, as [Mr B] also supports BNP; this case has nothing to do with politics. [Mr B] is harassing him because he asked him for money and he didn’t give it to him, later the applicant found out that he is a terrorist and there are cases against him as he was involved in murder, bombing, car burning and that the police never tried to catch him. [Mr B]’s motive is to get money from him.
·     The delegate referred to country information noting that documents can be fraudulently obtained. The applicant said everything he said is true and it could all be verified.
·     When asked if he considered relocation, he said yes but he did not have a chance to do so. The delegate put to him that he could have relocated as he only claims to have a problem with one person. The applicant said that [Mr B] is very powerful.
·     When asked why it took him 4 weeks to apply for protection when he came to Australia, he said that before that he tried to negotiate with the local director to let him return to [Country 1], but he didn’t agree.

Other evidence from the interview, as well as more details of the evidence given at interview are referred to below.
The delegate’s decision record
The delegate’s decision record provided a short summary of the claims made and did not provide details of the applicant’s claims or evidence made at interview. The delegate’s stated reason for refusing the claims was that there is no credible evidence to support a conclusion that the applicant faces harm of any kind on return to Bangladesh. There was however no actual reasoning for this conclusion provided in the decision record.
The Tribunal
The applicants provided a copy of the delegate’s decision record to the Tribunal with their application for review.
On 26 September 2022 the applicants provided some documents to the Tribunal as follows:
·     A letter from a Bangladeshi Social and Cultural Organisation Australia dated [in] November 2019 stating that the applicant has been volunteering since April 2017 working with people of different ages and disabilities from the Bangladeshi community and he has ideas and is appreciated and is trustworthy.
·     Documents thanking him for his work as a [Occupation 1] during the pandemic.
·     Awards for participating in art and volunteering activities and courses.
The applicants appeared before the Tribunal on 5 October 2022 and 6 October 2023 to give evidence and present arguments. The Tribunal received oral evidence from the 2 adult applicants. At both hearings the Tribunal asked whether the3^rd or 4^th applicant proposed to give evidence and the adult applicants said no. The Tribunal hearings were conducted with the assistance of an interpreter in the Bengali and English languages. At the first hearing the Tribunal gave an introduction to all four applicants. The first hearing was conducted in person; by the time of the second hearing the applicants had moved and the second hearing was conducted by MS Teams video.
On numerous occasions at the first hearing the applicant would respond to the question posed in English before allowing it to be translated or he would interrupt the interpreter. The Tribunal reminded him on numerous occasions that he should wait for the interpretation to be completed.
At the first hearing the applicants produced their passports and other documents, namely:
·     Photocopies of a word document appearing to be letters from [specified Ministry], [Country 1], addressed to the applicant and his dependents entitled “Cancellation of [specified visa]”. The documents stated that the employment and dependents’ [visas] were cancelled on “[Date]/03/2015”. It was noted that the applicant has applied for his [visa] on “[Date]/06/2014” and the dependents had applied for their [visas] on “[Date]/07/2014”. The document is stated to be a computer-generated letter not requiring a signature. The document is stated to have been certified by a Justice of the Peace to be “a true copy of The document shown and reported to me as the original” on 5 August 2015 (marked “A” by the Tribunal);
·     A photocopy of a translation of a police report at [Thana 1] Police Station, Dhaka, dated [date] October 2014 with the copy of the police report in Bengali (marked “B” by the Tribunal);
·     A photocopy of a translation of a police report at [Thana 2] Police Station, Dhaka, dated [date] October 2014 with the copy of the police report in Bengali (marked “C” by the Tribunal);
·     Printed cards entitled [specified visa] issued by [specified Ministry], [Country 1], for the applicant, [Position 4], stating that his card had been applied for [in] June 2014, and was due to expire [in] September 2017 (marked “D” by the Tribunal);
·     Photocopy of cards entitled [specified visa] issued by [specified Ministry], [Country 1], for the applicant, [Position 4], stating that his card had been issued [in] December 2011, and was due to expire [in] December 2012 (marked “E” by the Tribunal);
·     Printed cards entitled [specified visa] issued by [specified Ministry], [Country 1], for the applicant, [Position 4], stating that his card had been applied for [in] April 2013, issued [in] September 2013, and was due to expire [in] September 2014 (marked “F” by the Tribunal).
Concerning the previous [visas], the applicant said that he only had copies, not originals, as the cards had been returned when new ones were applied for.
The applicant told the Tribunal that his application form and statement are all true and correct. The second applicant also confirmed this.
Some of the applicant’s evidence at the first hearing was as follows:
·     In Australia he has worked for the last year as a [Occupation 1]; prior to that he received funds from Centrelink as he had carpal tunnel treatment for 2.5 years. His wife did not work in Australia; she also received Centrelink and looked after the children.
·     The Tribunal asked whether he tried to get the money back from [Mr B] when he was still in [Country 1] and he said that he called him by phone, maybe 4–5 times. The Tribunal noted that this only equated to about once/month. In response he said that [Mr B] did not take his calls after September 2014 which was the last time he spoke to him. On that call [Mr B] told the applicant that he will harm him and his family if they persist in this matter.
·     The Tribunal asked the applicant what he did when he returned to Bangladesh and he said he returned home and saw his family then on the next day he went to the police station to make a report. The Tribunal asked him why he didn’t approach [Mr B] to ask for the money and he said because his brother-in-law had told him that when he had asked for the money, he had been attacked and there were knives and daggers.
·     The applicant said that when he came to Australia and claimed a protection visa he had visas to the USA and Canada.[6]
[6][6] The Tribunal notes that Departmental records referred to the applicant’s fingerprints matching against one of more (Five Country Conference) FCC databases: the applicant admitted to applying for (and being granted) US and Canadian visas.
·     The Tribunal asked the applicant to explain the circumstances of him getting a visa to USA. He responded that his hobby is travelling so he gets visas from many countries and when he had the opportunity he used to travel. He applied for the USA visa in 2014 and then 2 weeks later had the interview and got a 5-year visa which expired in 2019. It allowed him to visit the USA, and he recalls that he had this when he came to Australia. Concerning the Canadian visa, he said he could not recall when it was granted but he knows it expired in 2018.
·     When asked what he fears upon return to Bangladesh, he said that [Mr B] and his people will kill him and his family.
Concerning the previous travel of the applicant to Europe and [Country 8], the applicant had said that he had travelled to various countries in Europe (4 countries in 5 days) to try to understand business opportunities, and how the system worked. He stayed with the Bengali community and it was only short trips; the Tribunal asked him about his trip to [Country 4] and he said he went to a train station and asked some Bangladeshi people about business opportunities but there were none. The trip to [Country 8] was for tourism and he visited various sites. The Tribunal put to the applicant that these trips had occurred when his [Country 1] business was failing (and he claimed he was too busy with the failing business to even travel back to Bangladesh to deliver the gold in person to his family). The Tribunal also put to the applicant and the wife at the second hearing that it appears that the family also obtained these visas but did not travel, which was difficult to understand. The applicant said that his wife and children did not travel with him because the daughter was in a good school in Bangladesh and the wife did not want to sacrifice their daughter’s studies. The wife said she agreed with this.
The wife also gave further evidence at the first hearing, discussed below. The applicant and his wife also gave evidence at the second hearing, and when relevant this is set out below. They both confirmed that there were no political claims being made, there was no political involvement, it was all about the issue of the money.
The Tribunal sent its first s 424A letter after the first hearing; the response raised new claims and the Tribunal thus invited the applicants to a second hearing, and then sent a second s 424A letter. The applicants provided responses to both s 424A letters.
Further relevant evidence and information is set out below.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS
The issue in this case is whether or not the applicants meet the definition of refugee or are entitled to complementary protection and whether or not they are members of the same family unit. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicants produced their passports to the Department, who accepted that they were Bangladeshi citizens and nationals, and assessed their claims against Bangladesh. The Tribunal was also provided their passports and accepts that the applicants are nationals of Bangladesh, and that the appropriate country of reference for the assessment of their refugee claims, and the receiving country for the purposes of their complementary protection claims, is Bangladesh.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded”, or that it is for the reason claimed. Similarly, the fact that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
The Tribunal put to the adult applicants at hearing, and all applicants pursuant to s 424A of the Act when required, concerns and inconsistencies which undermined their credibility and their claims about the circumstances of their background and claims. The Tribunal noted in the s 424A letters that a consequence of information relevant to one applicant would adversely affect the other applicants as they rely upon the same claims.
The applicant – credibility
The Tribunal had concerns that the applicant provided inconsistent or not credible evidence that undermined the claims made by himself, which claims were also relied upon by the other applicants, as follows:
Concerns with claims that the applicant was a businessman
Firstly, the Tribunal was concerned with the applicant’s claim to have been a businessman of many years’ standing. The applicant told the Tribunal at the first hearing that he had been a businessman in Bangladesh for over 10 years, and that he had been a businessman in [Country 1] from 2011–2014. His work in business was specified in his protection visa application as follows:
·     [Position 2] for [Company 2], an import and marketing business, in Bangladesh, from 2003–2006;
·     [Position 3] of [Company 3] an import/export business, in Bangladesh, from 2007–2011;
·     [Position 4] of [Company 1], from 2011–2014.
However, the Tribunal was concerned that the applicant showed a lack of knowledge of his salary and of basic business terms, and that he could not recall how many directors were involved in his business in [Country 1], and that he didn’t know how long an [specified visa] would continue in [Country 1] once a person had ceased being employed in [Country 1]. Further, he gave inconsistent evidence at the second hearing about when the local director was appointed, he was not able to tell the Tribunal that the local director was also appointed as company secretary. When these matters were considered along with the description of his profession in his passport issued during the relevant period, they undermined his claim to have been a businessman, including in [Country 1].
The number of directors in the [Country 1] company: the Tribunal had concerns arising from the applicant’s changing evidence about the number of directors in the [Country 1] business. According to his statement, there were 2 directors of [Company 1]: a local [Country 1] director and himself. At interview he did not suggest that there was a third director. However, when giving evidence to the Tribunal at the first hearing, when the Tribunal asked him who shut down the business, his response was to say that Me and the foreign director and the local director discussed and stopped the business. The Tribunal then asked him to specify who were the 3 directors. He then said there were only 2 directors, himself and a local director. The Tribunal put to him that he had said that there were 3 directors. The applicant said he couldn’t follow or understand so he said 3 directors. The Tribunal put to him that it had previously said to him that he should tell the Tribunal if he doesn’t understand something, he had not done that; he had said that there were 3 directors. The applicant then said that he made a mistake, there were not 3 directors, there were 2 directors.
This was also put in the first post-hearing s 424A letter, with the Tribunal noting it was reasonable to expect that the applicant would know how many directors there were in the company. In his first s 424A response he said he recalls giving evidence to the Tribunal that there were 3 directors (local director, foreign director and me). This was a mistake, as he was the foreign director. He noted that in his statement he had said there were 2 directors.
The Tribunal considers that if the applicant had been one of two directors in a company in [Country 1] for 3 years, he would not have made a mistake as to the number of directors in the company. It also notes that when giving his evidence he even mixed up who was the foreign director and the local director: he told the Tribunal several times that [Mr A] was the foreign director; then he changed this to say that he, the applicant, was the foreign director, and [Mr A] was the local director. The Tribunal does not find his explanations persuasive, and it considers that his evidence undermined his claimed background, specifically that he was a director of a company operating a business in [Country 1].
How long [Mr A] was the director of the company, and his role as secretary: The Departmental transit visa file contained a document that the applicant provided in support of a transit visa application to Australia which stated that the applicant was a director of [Company 1] and that [Mr A] was appointed as both Director and Secretary of the company on 4 January 2014 (namely, after the riot had occurred which caused problems for the business).
However, when the Tribunal asked the applicant at the second hearing what was the position/role of [Mr A] in the company, he said that [Mr A] was the local director. When asked how long he had been in that role, the applicant asserted that [Mr A] had always been the director of the company ever since the start of the business in 2011, the whole time. The Tribunal put to the applicant that [Mr A] was appointed on 4 January 2014 according to the document he produced to the Department. The applicant’s response did not engage with the concern: he said he has been working, he had a job, but he was a local director as well in the company, he doesn’t remember all the dates but he can confirm that he was a director in the company.
A further concern was that the applicant did not know that [Mr A] had the role of company secretary. Although he said that [Mr A] had a job in the company and was responsible to make sure people comply with regulations and also to pay the equivalent of superannuation, the husband did not know that [Mr A] held the role of company secretary as well as director.
The Tribunal notes that in the night following the second hearing the Tribunal received an email from the applicant stating “Please accept my apology. In the hearing today you asked me if there was any other director before [Mr A]. During the hearing, I answered no. A little while after the hearing I remembered that the local director before [Mr A] was [Mr D].”
The Tribunal raised these matters in its second s 424A letter. In response, the applicant stated:
[Mr D] was the local director of [Company 1] before [Mr A]. In the video hearing held on 5 October 2023, the honourable Member asked me if any Local Director existed before [Mr A]. I replied, "No," which was the wrong answer. As this case has been running for a long time, it is hard to recall every date and incidence as an average human being. Eventually, I forgot to mention. After the hearing, I remembered that there was a Local Director before [Mr A], who was [Mr D]. This matter stressed me a lot, and on the afternoon of the hearing day, I sent an email mentioning my mistake and the correct answer, following an apology for the trouble.
Before the appointment as local director and secretary, [Mr A] was the [Company 1] employee starting June 2013. Due to the resignation of [Mr D], it was mandatory, according to the company act, to appoint tne local director. Then, [Mr A] was appointed local director and secretary starting from 4 January 2014.
As the Tribunal had noted, the information indicated that [Mr A] was appointed as a new director and secretary after the riots in December 2013, and given the adverse effect of the riots on the operation of the business, the Tribunal would expect that the applicant would recall that at that time, a new director was appointed, and that it was this relatively new director who made the final decision, some 6 months after he was appointed as local director, to close the applicant’s business. The Tribunal does not accept that the applicant did not recall that he had a new director and secretary of the company operating his business, noting also that it is not the case that there were many directors; there were only two, himself and that one other director. It would be reasonable to expect that the applicant would have known that [Mr A] also held the role of company secretary and that he held both roles only from 4 January 2014. While accepting that this was some time ago, the Tribunal is not satisfied that this is something that the applicant would have forgotten when he told the Tribunal, and confirmed to the Tribunal, that [Mr A] was the local director for the entire operation of his business in [Country 1]. The Tribunal considers that this undermines the applicant’s credibility, and it indicates that his claims to be a director of the company in [Country 1], and a businessman in [Country 1].
The applicant’s lack of knowledge of his salary in [Country 1], and lack of knowledge of the difference between turnover and a person’s income: According to the [Country 1] website, [specified Ministry], an employee can only be granted an [specified visa] in [Country 1] if they are earning a significant salary: eligible candidates to meet criteria include earning a salary which is benchmarked against the top one-third of the local professional, managers, executives and technicians (PMET) salaries by age.[7] At the first hearing the Tribunal put to the applicant that in renewing his [specified visa] (as an employee), it would expect that the [Country 1] authorities would need to see details of his income, noting that a minimum income is required to be hold the [visa]; the applicant agreed this was the case (he did not suggest in his evidence or in his s 424A response that this was not the requirement when he was in [Country 1], and he confirmed to the Tribunal at the second hearing that this was the requirement when he was in [Country 1]). At the first hearing the Tribunal asked approximately how much money he showed that he was earning when he applied for the renewal in June 2014 (by which time his business had been failing). Although the applicant was given the opportunity to provide an approximate idea of his income (not an exact figure), he claimed and maintained that he could not recall his income at the time; he said he had no idea at all.
[7] According to the [Country 1] website, [specified Ministry], an employee can only be granted an [specified visa] in [Country 1] if they are earning a significant salary: eligible candidates to meet criteria include earning a salary which is benchmarked against the top one-third of the local professional, managers, executives and technicians (PMET) salaries by age): [URL]

He then said that his income is called “turnover” and he doesn’t have any idea, he doesn’t know. The Tribunal put to him that turnover is not his personal income, turnover is generated by the business. The applicant then agreed with the Tribunal.
The Tribunal noted the applicant’s claimed history as a businessman in Bangladesh for 10 years as well as being a businessman involved in a deteriorating business that eventually led to closure in [Country 1] (and his claim that he was going to set up a new business upon return to Bangladesh). The Tribunal put to the applicant that it would expect a businessman to know that there is a difference between an individual’s income and the turnover of a business, and he responded that in 2014/2015 he remembered this difference, but now he doesn’t recollect, as he takes diabetic medicine and this affects his memory and he has already told his doctor this. The Tribunal put to him that he had mixed up two financial terms (an individual’s income and the turnover of the business), which is difficult to understand if he was a long-term businessman, and it was difficult to accept that a lack of knowledge of these terms would be caused by a memory issue.
At the second hearing the Tribunal raised this concern with the applicant again, offering him a further opportunity to explain this. He said that income is his personal matter and turnover is the business’ matter. The Tribunal agreed and noted that at the first hearing he did not know this. He responded that he has been mentally stressed and he has issues with explaining things. The Tribunal asked what he meant and he said that he misunderstood at the time so he did not comprehend.
The Tribunal has carefully considered these explanations. It accepts that this was some time ago, however given the applicant had to have been earning a significant salary (top one third of PMET salaries) in order to hold this [visa][8], and given his claim that his business was close to being “pointless”, the Tribunal considers that the applicant would have had some idea of what his income was when he was seeking to renew his [specified visa]. Further, the Tribunal would also expect that the applicant would know the difference between turnover and personal income (and indeed at the second hearing he said he did know this). On the available evidence, the Tribunal is not satisfied with the explanations given by the applicant as to why he did not know the difference between income and turnover at the first hearing, and why he did not even have a vague idea of the income he was earning at the time he was renewing his [visa]. The Tribunal considers that his evidence on these matters undermines his claims that he was operating a business in [Country 1].
[8] Noting that the applicant had confirmed that this requirement was applicable at the time in [Country 1]
The applicant’s inability to explain in detail the deterioration of his [Country 1] business: It was the applicant’s claim in his statement and in his evidence to the Tribunal that on 5 August 2014 he and the local director discussed the business and decided to close it. However, when the Tribunal sought details at hearing about the state of his business which would have informed the decision to close the business, the applicant’s evidence was vague and evasive.
When the Tribunal asked about the discussion between himself and the local director that occurred on 5 August 2014, the applicant initially said, “we discuss profit and loss and everything”. However, when the Tribunal asked him to be specific about the conversation, asking him on numerous occasions to be more specific as to the actual discussion, the details of the business, and the reason why the decision was taken to close down the business, his responses were vague and evasive, and appeared inconsistent with the detail of discussions that would be expected of two businessmen deciding to cease operation of a business. The applicant could only say that the discussion was: “my business is not running well” “the business was losing”, “sales were not good”. The Tribunal put to him that he did not sound like a businessman, that it was asking him for specifics, for example the kind of detail that he would provide to an accountant. The applicant continued to speak vaguely, saying “there was not sales”, and then “for a few months we had been observing the business and the sale was gradually declining”.
The Tribunal put to him that he did not sound like a businessman. He then said “I was losing capital”. He then said: I had goods of 100,000 in my shop and every month I was incurring loss 4000 – 5000 except rent. When the Tribunal asked for anything else he could say, he just said they “decided to stop”.
The Tribunal was concerned that the applicant, despite being given numerous opportunities, was unable to speak in any detail about the business, and it did not find the applicant’s evidence to be persuasive. While, after numerous requests for some detail about the failing business, he was able to provide a figure of [amount],[9] it considers that if he had been a businessman engaged in the discussion to close the business as claimed, he would have been able to tell the Tribunal when first asked the details of the discussion with the local director which led to the decision to close the business.
[9] This figure was supported by the Business Profile he provided to the Department in support of his application for a transit visa to Australia in 2014 which stated that there was an amount of [amount] as the paid-up capital/ capital structure of the business (this document is further discussed later).
The Tribunal was also concerned that his explanation that the business was incurring a regular monthly loss was undermined by a response in his s 424A response letter (when the Tribunal was concerned as to how he had managed to renew his [visa] in June 2014 given his business has almost become pointless); his response was that all the foreign workers left by March 2014, from April 2014 the business started to go down “slowly”; it was “especially bad” from July 2014. The Tribunal considers that this explanation of a sharp deterioration from July 2014 undermines the explanation that there was a regular deterioration which led to the decision to close the business.
The Tribunal considered the applicant’s evidence undermined the claimed business events in [Country 1] which led to the decision to close a business and the applicant’s return to Bangladesh (where he experienced harm).
The applicant’s s 424A response to the above 2 points: In finding that the applicant’s evidence undermined his claims, the Tribunal had taken into account the s.424A responses. The applicant stated that when he applied for the renewal of the [visa] in 2014, he submitted the financial year statement from March 2013 to March 2014 and his salary was [amount] monthly. He did not provide any further explanation as to why, at hearing, he did not have any idea at all of what his own income was, nor why he was unaware of the difference between turnover and an individual’s income.
The Tribunal considers that the applicant’s evidence indicated that he did not have basic business knowledge, because it is reasonable to expect that a businessman with over 10 years’ international (export/import) business experience in Bangladesh and who was a company director/businessman in [Country 1] for 3 years, would understand the difference between business turnover and his own personal income; and would have been able to explain what had happened to his business in more detail if he had been operating a business that had started to operate at a loss as a consequence of significant circumstances in [Country 1], and that he would have been able to provide an estimate of his income at a crucial time, when asked. The Tribunal considered that his evidence indicated that he did not have the knowledge that a person in his claimed circumstances would have had.
The applicant’s lack of knowledge of how long an [specified visa] could continue once a person finishes working in [Country 1]: The [specified Ministry] [Country 1] website states that an employer must cancel the [specified visa] within one week, if the employee no longer works for the employer: You must cancel an [specified visa] if the [visa] holder no longer works for you. Once cancelled, please cut the [visa] card in half and discard it to prevent misuse[10]. The Tribunal considered this indicated that his [specified visa] should have been cancelled within one week of 30 September 2014 [thus by 7 October 2014].
[10] His s.424A response confirmed that this was the requirement at the time.
At the first hearing, however, the applicant did not know this was the case. When the Tribunal asked the applicant at hearing how long after he stopped working in [Country 1] was he permitted to rely upon an [specified visa] before the government had to be informed (and thus he would not be allowed to stay in the country on this basis), he said he did not know that, the local director would know this. The Tribunal put to him that it had looked at the website which stated that an employer must cancel the [specified visa] within one week, if the employee no longer works for the employer, and that would mean that the employee did not have the right to stay in [Country 1] any longer, and that this requirement was in existence so that the [visa] would not be abused.
At the first hearing the applicant’s response was that they had stopped the business but they had not made a final decision that they would not do another business or restore this business. He then said that the stock of the original business had to be sold. The applicant did not, however, explain why, as a visa holder who had been residing in a country ([Country 1]), and who had decided to flee back to that country ([Country 1]) when in fear of his life), he would not have known or found out how long after the [specified visa] was cancelled he would be permitted to remain in [Country 1].
Similarly, in his first s 424A response he did not explain his lack of knowledge of how long he would be permitted to stay once he was no longer employed in the business (although his response confirmed the one-week notification requirement). He just referred to an intention to finalise the existing business: he said on 30 September 2014 they closed the shop and locked it. But the stock remained in the shop and they “had rental advance” and security deposit for the 3-storey building. As it was his business and he was an investor, the local director had to settle outstanding stocks, rental advance and security deposit and then the local director could “finally notify the MOM within a week”.
In circumstances where the applicant claimed that a decision was made on 5 August 2014 to stop the business, and his business had finally ceased operating 2 months later on 30 September 2014, yet he and his family were forced to rely upon the employment and dependent [visas] on 18 October 2014 to flee Bangladesh and return to [Country 1] to seek safe haven, the Tribunal considers it reasonable to expect that the applicant would have made enquiries, and would have known, how long the [visas] would remain valid in [Country 1] (and thus how long they would be allowed to stay legally in [Country 1]) after his employment had ceased.
The Tribunal notes that his explanations did not engage with this concern. It also notes that his subsequent explanations (that the business had not been finalised) were inconsistent with the claim in his statement provided to the Department, which indicated there was no unfinished business in [Country 1]: his shop in [Country 1] closed on 30 September 2014, he returned to Bangladesh on [date] October 2014, and at that time he began setting up a new business in Bangladesh and started to arrange money to invest in his new business.
The Tribunal has also taken into account his evidence at the second hearing that he understood that in [Country 1] there were rules and regulations to follow, and the requirement to let the government know, but that it was the responsibility of the local director to let the government know within one week of his employment ceasing, the applicant didn’t have to do anything. While the Tribunal accepts that the onus is on the local director to let the government know that the applicant had ceased being an employee, this does not explain why the applicant didn’t know how long his [visa] would last once he ceased being an employee.
The Tribunal considers that his lack of knowledge of how long after employment ceases that his [visa] should have been cancelled undermines his claimed circumstances in [Country 1].
The applicant’s passport, and his evidence at second hearing, referred to a different occupation: The applicant’s passport issued [in] 2008 records that his occupation is “[Occupation 2]”. In his protection visa application form, however, it was recorded that his occupation in Bangladesh at that time was that he was in the import/export business: [Position 3] of an export/import business from 2007–2011. The Tribunal put to the applicant in the first s 424A letter that this (in light of other information) also undermined his claim to have been a businessman. In his s 424A response the applicant acknowledged that his previous passport issued in 2008 stated his occupation was “[Occupation 2]”, and he stated that a person may do different occupations to support themselves and their family life during the five years of a passport’s validity (he did not, however, suggest any other particular job he had done which could be referred to as “[Occupation 2]” at that time).
While the Tribunal accepts that a person may do different occupations during the passport’s validity, this is not what the applicant claimed in his protection visa application: he claims to only ever have been involved in import/export businesses since 2003; and he gave the same evidence to the Tribunal at the first hearing. He also offered by way of an explanation in his first s 424A response that he got his [specified visa] in [Country 1] and visas for many countries using that passport. This does not, however, explain why he claimed to have the occupation of “[Occupation 2]” in his passport while claiming that he was a businessman.
The Tribunal raised this at the second hearing and the applicant repeated what he had said in his first s 424A response. The wife agreed with the applicant’s explanation.
However, when the Tribunal raised this at the second hearing, further concerns arose. This time when the Tribunal put to the applicant that he had claimed to be a businessman in Bangladesh, he said no. He said he was a supplier of [Product 1] in Bangladesh. It was only when the Tribunal asked him whether he had been the [Position 2] at [Company 2], and the [Position 3] of [Company 3] an export/import business (as set out in his protection visa application form) that he said yes, in addition to his job of supplying [Product 1], he was also engaged in business. The applicant’s initial evidence at second hearing: that he was a [Product 1] supplier in Bangladesh, also undermined his claim to be a businessman, and the Tribunal noted that he had also not declared that he was a [Product 1] supplier in his protection visa application form.
In his second s 424A response, the applicant said he was an employee at [Company 2], and [Company 3]. He then offered a new explanation as to why his passport recorded his employment as “[Occupation 2]”: in Bangladesh, if anyone is doing a government job, they mention their profession as “government service”. If anyone works in the private sector or under other business organisations, they say “[Occupation 2]”. He then stated that in Bangladesh he was mainly working a job ([named entity], [Company 2], and [Company 3]) and this is why his passport stated he was in “[Occupation 2]”. Alongside his job, he had a small side hustle where he would supply [Product 1] to vendors to make a little more money.
While the Tribunal accepts that this new explanation concerning descriptions in passports sounds possible, the applicant has not explained why he only raised this the third time that this issue had been raised. The applicant’s evidence however has been continually changing, from being (from 2003 onwards in Bangladesh) a [Position 2] and [Position 3] of 2 import/export companies, to running these businesses, to having an additional unspecified “[Occupation 2]” job, to saying that he was not a businessman in Bangladesh, instead he had a job to supply [Product 1], to saying that “[Occupation 2]” actually referred to the 2 jobs listed in his protection visa application and he also had a small side hustle of supplying [Product 1].
The Tribunal considers that the above indicates that the applicant has not been truthful about his background in Bangladesh, and this also undermines his credibility.
Concerns about the applicant’s claim that he gave gold to [Mr B]
Secondly, the Tribunal had a number of concerns about the applicant’s claim that he gave gold to [Mr B], which was the event that led to all of the problems.
Information suggesting that the applicant would have undertaken due diligence and would not have given goods of significant value to [Mr B], and that the applicant would have been aware that [Mr B] was a criminal and terrorist before giving the goods to [Mr B]: The Tribunal considered that, when taking into account all the claims made by the applicant, he would have undertaken due diligence on [Mr B], through which he would have been aware that [Mr B] was a criminal and terrorist, and he would not have given $10,000 worth of gold to him. In this regard, the Tribunal noted that:
·     The applicant claimed to have been experienced in business in Bangladesh (for over 10 years) before moving to [Country 1].
·     The applicant claims that he was a businessman in [Country 1], the [Position 4] of a [business] from 2011 until December 2013. He claims to have been in the elite category of people granted [specified visa]es, equivalent to the top one-third of the local professional, managers, executives and technicians (PMET) salaries by age) in [Country 1].[11]
·     The applicant claims that corruption, bribery and violent crimes including robbery are common problems in Bangladesh, and that no one is safe, and that crime can happen at any moment (claims in the statement).
At the delegate’s interview[12] the applicant claims that [Mr B] (from Bangladesh) introduced himself to the applicant in 2013 at the applicant’s shop in [Country 1], similar to other Bangladeshis who would visit his shop in [Country 1]. He said he would sometimes lend [Mr B] $100/$200. He came 4 to 5 times and sometimes stayed at the applicant’s home (7–9 days at a time) and they developed a good relationship.
The applicant claimed that on 3 May 2014 he gave [Mr B] 200g in gold to take to Bangladesh, worth $10,000, which led to all his problems.
It was difficult to understand why the applicant would have progressed from entrusting small amounts to [Mr B], to $10,000 worth of gold. The delegate at interview put to the applicant that it was not credible that the applicant would give valuable gold to [Mr B] to take to his family in Bangladesh as the applicant already had a way of transferring money to Bangladesh (through an established money transfer system). Further, the delegate also noted the claim that [Mr B] is known as a terrorist, and put to the applicant that he would have done his due diligence about this man before trusting him. The applicant responded to the delegate that in 8 or 9 months, [Mr B] came to [Country 1] 4 or 5 times, they built a good relationship, many people know him and said [Mr B] was a good man. He said he had previously given him about $500 to take back to Bangladesh for him.
[11] [Source redacted]
[12] Put pursuant to s.424A as noted below

100. The Tribunal found it difficult to accept that the applicant would give such a significant value to [Mr B], given the applicant claims experience in businesses, and that he was being paid a significant salary for his acumen in [Country 1], and given that it appeared relatively easy to ascertain that [Mr B] was a criminal and a terrorist in Bangladesh. In regard to the latter point:
·     The applicant told the delegate at interview that he tried to solve the problem of the money on the phone with [Mr B] but he could not do so, so then 6 days later, on 9 May 2014, one of his relatives went to [Mr B]’s house to negotiate. However, [Mr B] tried to attack his relative and then the relative was told by the locals of [Mr B]’s reputation as a terrorist/murderer.
·     The applicant claimed in his statement that claims that [Mr B] is a very bad man who is involved in murder, bombings, kidnapping, and who is so powerful that he has reach all over the whole of Bangladesh (a country of an estimated 163.2 million people).[13]
·     The applicant has political connections (BNP) and he claims that [Mr B] was also connected politically to the BNP (a different branch). Further, he claimed that he spoke to “many people” who knew [Mr B] before giving him the gold.
[13] DFAT Report 2019.
101. If [Mr B] has influence throughout the whole of Bangladesh, this suggests that information about him, and his reputation, would be available if a person undertook due diligence (also noting that the applicant was in the same political party albeit a different branch, and that he had spoken to many people about him). It is reasonable to expect that the applicant would have found out, as his relative did easily, about the criminal history and reputation of [Mr B], before giving him $10,000 worth of gold to deliver to his family.
102. The Tribunal put to the applicant at hearing that it did not make sense that he would give an item of such significant monetary value to [Mr B], without having done due diligence, and noting his evidence to the Tribunal that he could send money back to his family (by bank transfer). The applicant said that his cousin was getting married and so he needed ornaments. The Tribunal put to him that it did not see why he had to give the gold to [Mr B] as he had other options. In response the applicant started to cry and said that his problem is that he is “soft and too trusting”. The Tribunal put to the applicant that it is difficult to accept his claim to have been a successful businessman for 10 years in Bangladesh which he had stated is a country dominated by crime and corruption if, as he claims, he is soft and believes everything he is told. In response the applicant said that over a 10-year period he was deceived by a lot of people who cheated him.
103. The Tribunal would expect that if the applicant had a history of being cheated during his 10 years of business in Bangladesh, it is reasonable to expect that he would not have given $10,000 worth of gold to a person whom he had previously only loaned smaller amounts of money ($100, $200, or even $500).
104. In his s 424A response the applicant stated that, due to a relative’s marriage, he gave 200 g of gold to [Mr B] on 3 May 2014. Previously the applicant had made small loans of money to [Mr B]. The applicant didn’t know he was an evil man and criminal in Bangladesh before he gave him the money.
105. The Tribunal does not find the explanations persuasive and considers that the above undermines the applicant’s claimed background and that he gave $10,000 worth of gold to [Mr B] to take to Bangladesh for him, and the claims of harm and feared harm that flow from that claim.
106. Information undermining that the applicant gave $10,000 worth of gold to [Mr B] to take to Bangladesh for him on 3 May 2014: In this regard, it was never suggested that the applicant was anywhere other than [Country 1] when he gave the gold to [Mr B], and it was never suggested that this transaction occurred other than by the applicant directly giving the gold to [Mr B]:
·     In his statement the applicant said that, on 3 May 2014, the gold,[14] worth about $10,000, had been provided to [Mr B] to take to Bangladesh; on the same day [Mr B] asked the applicant to give him a large sum as a political donation; the applicant refused, and finally [Mr B] then sold the gold and kept the money. The applicant told the Tribunal that his written claims were true and correct and there was no mistake or error. The applicant also confirmed the precise date of these events (3 May 2014) at the hearing.
·     At the interview with the delegate, the applicant told the delegate that on 3 May 2014 he gave [Mr B] 200 g of gold to deliver to his family.
·     The applicant provided the Tribunal with a translated police report dated [date] October 2014 in which the applicant states: On 3 May 2014 I handed over him 200 grams of gold. The applicant was also recorded in this police report as claiming that he legally paid the ([Country 1]) government tax for this.
[14] In the statement it was referred to as “goods” but the applicant has said it was gold, and the Tribunal thus refers to it as gold.
107. The Tribunal put to the applicant in the first post-hearing s 424A letter that the claim that he gave the gold to [Mr B] on 3 May 2014 (in [Country 1]) was undermined by his protection visa application form which stated that he was in [Country 8] from 1–5 May 2014.[15] The Tribunal notes that the applicant told the Tribunal at the first hearing that he went to [Country 8], alone, as a tourist, visiting numerous sites, for 3 days.
[15] The trip to [Country 8] referred to in his protection visa application form is supported by the itinerary he produced to the Department when seeking a transit visa to Australia in May 2014.
108. In his first s 424A response, the applicant said, for the first time, that as he was in [Country 8] on 3 May 2014, his younger brother [Mr E],[16] who was residing in [Country 1] at the time, gave [Mr B] 200 g of gold in [Country 1] on behalf of the applicant. The applicant claimed that the day before he went to [Country 8], he had already discussed with [Mr B] that his younger brother [Mr E] would hand over to him the 200 g of gold on 3 May 2014. He stated that his brother passed away due to COVID during a visit to [Country 2]. He noted that he had mentioned that his brother had passed away during his evidence at the first hearing. The Tribunal accepts that at the end of the first hearing the applicant said that his brother had passed away from COVID-19; he did not however mention that his brother was otherwise relevant to his claims at the hearing, and in particular he did not suggest at the first hearing that it was his brother who had handed the gold to [Mr B].
[16] The applicant had referred to a brother [Mr E] in his application form who was a Bangladesh citizen residing (at the date of application) in Bangladesh. In his response he said he is called “[Mr E]”.
109. In support of this response, the applicant provided the following (as described by him):
·     A copy of a “declaration of receiving gold with the sign of [Mr B]”. This “declaration” is a handwritten note, in Bengali, signed by “[Mr B]”, written on a photocopied page of the biopage of [Mr B]’s passport. The translation of the declaration stated: “I received gold with tax 2700/- taka for reaching 200 gram gold to [name] in valid way for family need which gold is sent by brother [Mr E]”.
·     A copy of his “brother’s passports renewed in [Country 1] in 2014 and 2019 which were issued due to his residence in [Country 1]”. The Tribunal notes that the applicant produced a copy of the biopages of these passports, showing the passports were issued [in] 2014 [and] 2019 by the Bangladesh High Commission in [Country 1].
·      A copy of his brother’s death certificate and burial certificate. The Tribunal notes that these documents were executed in [Country 2] indicating that his brother passed away [in] July 2021 from COVID-19.
110. While the Tribunal is prepared to accept that the applicant’s brother had been present in [Country 1] on 17 July 2014 and 7 October 2019, and that he passed away in [Country 2] in 2021, this does not mean that he was present in [Country 1] on 3 May 2014. However, even if his brother was present in [Country 1] on that date, the applicant had consistently indicated that he was the one who had given the gold to [Mr B] in [Country 1], and indeed the police report and his evidence at the interview[17] are specific that it was the applicant who handed the gold to [Mr B] on 3 May 2014, not his brother.
[17] As put in the s 424A letter.
111. At the second hearing when the Tribunal discussed this, the applicant was asked whether he told the delegate at interview that he was in [Country 8] when the gold was handed over on 3 May 2014; that it was his brother who handed over the gold; and that the document from [Mr B] (produced with the s 424A response) existed. The applicant said that the delegate did not ask him who handed over the gold. The Tribunal repeated its question to the applicant who said no, he did not mention it. He said that he was not asked in detail at the interview. The wife said that she agreed with the applicant’s evidence.
112. As put to the applicants in the second s 424A letter, the applicant did not tell the delegate at the interview that he was in [Country 8] when the gold was handed over on 3 May 2014; that it was his brother who handed over the gold; and the documents from [Mr B] (produced with the s 424A response) acknowledging the debt existed. Further, having listened to the recording of the interview, the Tribunal put to the applicant that he had had the opportunity to tell this to the delegate at the interview, but did not do so, noting that the applicant was asked a lot of questions at interview about the circumstances around that time.
113. The Tribunal was concerned that the applicant made no such claim, either in writing or orally to the Department, nor at the Tribunal’s first hearing (nor in the police report), that it was his brother who handed over the gold; and that there were documents from [Mr B] acknowledging the debt existed, until the Tribunal put to him in its first s 424A letter that he could not have handed over the gold to [Mr B] on 3 May 2014 because he was in [Country 8].
114. Concerning the failure to ever mention the existence of the documents, including importantly the claimed acknowledgement of debt by [Mr B], the Tribunal considered that the applicants would have mentioned these documents in their protection visa application forms, in their statement to the delegate, at the interview with the delegate, and/or at the first hearing with the Tribunal if these were genuine documents that supported the claims. Instead, his documents provided to the delegate, the police report, his evidence to the delegate and his evidence to the Tribunal make no mention of the existence of an acknowledgement of the debt by [Mr B].
115. The Tribunal put to the applicant and the wife at the second hearing that it has concerns that the documents may have been created and are not reliable. In response the applicant said that if it was created the acknowledgement would not have been on a copy of a passport page with a phone number, and the document was in Bengali and he would have had it all translated for the Tribunal. The documents they rely upon are true and correct but it is up to the member to decide. He said he would have provided more documents but his brother had passed away. The wife added that added that the documents they have provided are all correct and true.
116. In his second s 424A response the applicant stated that he apologised for missing out on telling the delegate about handing over the gold to [Mr B], and he should have mentioned this in his statement. He realised that he had not done so, and he intended to tell the delegate, but on the day of the interview he was nervous and he forgot to do so. Thereafter there was a long time between the interview and the Tribunal hearing so he forgot to mention it. Further, in the police report he should also have explained that clearly. His translated document is correct. Concerning the missing document, he found this when he was moving house. He said that part of the reason why the important information has been missing is the length of time and his language.
117. The Tribunal has carefully considered the explanations however it does not accept that these can explain why the applicant has never mentioned what would appear to be important evidence, namely an acknowledgement of the debt (especially after his claims were rejected by the delegate as not credible), nor that he was in another country and that his brother, not himself, handed over the gold. The applicant has always maintained that he handed the gold to [Mr B] on 3 May 2014 (and he specifically told this to the Tribunal at hearing); however he changed this evidence once it was presented to him that his protection visa application form recorded him in a different location. The police report of [date] October 2014 relied upon by the applicant makes one mention of this brother, but only to say that the applicant, his brother, and other people subsequently requested [Mr B] to return the gold, and that the applicant, his brother (and others) were threatened with death if they demanded the gold be returned. The police report did not suggest either that on the day the gold was handed over the applicant was in [Country 8], nor that it was his brother who handed over the gold, nor that there was any evidence acknowledging the debt in existence. Further, in the protection visa application form the applicant was requested to list all documents even those that were not currently available. In response he stated, “all necessary documents will be submitted”. The applicant has said he found the documents when he was moving in 2023, he has not explained why he did not mention their existence earlier.
118. The Tribunal considers that the applicant’s evidence, explanations and late production of copy documents as discussed above undermine his credibility and the claim that the applicant, through his brother, gave $10,000 worth of gold to [Mr B] to take to Bangladesh for him.
Concerns with the claim that the applicant kept on demanding money from [Mr B] and lodging police reports against him
119. Thirdly, the Tribunal had concerns with the applicant’s claims about his subsequent encounters with [Mr B] once the gold had not been returned.
120. The applicant told the Tribunal that he was aware from 9 May 2014 that [Mr B] was a terrorist, a very frightening person who was involved in bombings, murders, torching cars and vehicles, and that the police were aware of him but they could not catch him. The applicant produced a police report which stated that [Mr B] had threatened his brother-in-law on 9 May 2014 that if the applicant kept on demanding the gold, then he would kill the applicant and his family. The applicant told the Tribunal, however, that since his brother-in-law (who had been attacked by [Mr B] with knives and daggers) had not been successful in obtaining the gold, he himself had continuously called [Mr B] to demand the return of his gold. When asked to specify how often; he said he had called him 4–5 times until September 2014 when [Mr B] stopped taking his calls. The Tribunal noted with concern that although [Mr B] had threatened on 9 May 2014 that if the applicant kept on demanding the gold, then he would kill the applicant and his family, the applicant, who was in [Country 1], had left his wife and children vulnerable in Bangladesh, by continuously demanding the gold from [Mr B].
121. The Tribunal put to the applicant that by continuing to call [Mr B] to demand the gold, he was placing the lives of his wife and children at risk of harm from a dangerous and deadly terrorist who had already attacked a member of his family, namely his brother-in-law.
122. Further, the applicant had told the Tribunal that when he returned home to Bangladesh [in] October 2014, he did not go and approach [Mr B] for the money because he was scared of him, he had a previous experience of harm, where his knee was broken, so he was very scared of [Mr B].
123. The Tribunal put to the applicant that he was scared of harm, and he was aware (as early as May 2014) that the police can’t do anything against [Mr B], he nevertheless lodged a police report against him on [date] October 2014. The Tribunal put to the applicant that in all the circumstances, it did not understand why the applicant would have made a police report against [Mr B], a terrorist willing to kill him and his family, on [date] October 2014. The Tribunal put to the applicant that it would have made sense for him to have given up the pursuit of the money.
124. In response to the above the applicant said he made this police report so that he could get the money back from [Mr B]: “I tried and I thought because of the police report, he will give the money to me”. This explanation however is undermined by his claim that he had discovered much earlier that the police are unable to stop [Mr B].
125. The applicant’s response continued: he said that he did not put his wife and children at risk when he was in [Country 1] because he did nothing. The Tribunal put to him that this was inconsistent with his claim that he did take action when he was in [Country 1]; he had repeatedly demanded the money from [Mr B] between May and September 2014, even though his relative had been warned on 9 May 2014 that he and his family would be killed if he did so. The applicant did not directly engage with this; he said that all he did was try to get the money back. The Tribunal considers that the applicant would have recalled that he had made phone calls demanding the return of the money, and he would not have said he had done nothing in [Country 1], if his claims were true.
126. The Tribunal also considers his claim to have asked unsuccessfully for the return of the gold between May and September 2014 and then his return home and lodgement of a police report the next day, despite being aware that the police take no action against [Mr B], to be inconsistent with his claim that he was fearful of [Mr B], that [Mr B] had attacked his relative, and that [Mr B] had threatened to kill the applicant and his family, and that [Mr B] is able to bomb and murder people and the police are unable to do anything about him.
127. The concerns that the applicant in pursuing the gold had put his family at risk were also referred to in the post-first hearing s 424A letter, and in response the applicant said that because his brother-in-law did not take any further steps, the applicant’s family had been safe. This, however, ignores the applicant’s own evidence that simply asking for the return of the gold would lead to the death of him and his family (which claim had been repeated in the police report, where the applicant claimed that he, his family, his brother and brothers-in-law would be killed if “we” demand the gold to be returned from [Mr B]), and yet he kept on asking for the return of the gold.
128. The Tribunal’s concerns were also heightened because the applicant’s evidence to the Tribunal that when he returned home to Bangladesh [in] October 2014, he did not go and approach [Mr B] for the money because he was scared of him (as set out in paragraph 122 above) was inconsistent with his statement[18] that he believed [in] October 2014 that he would get the money from [Mr B], and when this failed, he then lodged a police report the next day.
[18] Having returned to Bangladesh [in] October 2014, at that time he began setting up a new business in Bangladesh and started to arrange money to invest in his new business. He intended to use money that [Mr B] owed him. However he did not receive the money and so on [date] October 2014 the applicant made a police report in [Thana 1].

247. The Tribunal does not accept that the applicant loaned money to or provided gold to [Mr B], either himself directly or through anyone else. The Tribunal does not accept any of the claims that flow from this, including that the applicant was too soft and trusting, [Mr B] tried to extort him and wanted money for political donations and was supported by people in government and other authorities and that the police would not protect anyone from [Mr B], that the applicant tried to get the money back, his relative was attacked, he requested the money by phone, he lodged police reports, he or his family members were threatened, attacked, subject to kidnapping attempts, or otherwise touched or harmed. The Tribunal finds that the applicant and the second applicant have made up these claims and the claims that they left Bangladesh in fear of their lives.
248. The Tribunal does not accept that the second, third and fourth applicants suffered any harm or feared any harm in relation to their lives in Bangladesh before coming to Australia. It does not accept that any applicant has a genuine fear of harm from [Mr B] or the circumstances arising from the claims relating to [Mr B]. It also does not accept that the applicants could not obtain state protection or relocate due to [Mr B].
249. The Tribunal noted that in the statement there was a reference to Bangladesh being a country where there is corruption, crime and bribery[37]. The adult applicants told the Tribunal that all of their claimed fears arose only because of the circumstances with [Mr B] (including that there would be physical, social and mental torture of terrorists, and that the second applicant would resort to suicide so that she does not have to go back to Bangladesh). The adult applicants both confirmed that this only related to [Mr B], that it was preferable to die in Australia than to return to be killed by [Mr B]. The Tribunal notes that it has not accepted that any of the claims about [Mr B] or flowing from those claims are true. It thus does not accept the claim that there is a genuine claim (or real chance or real risk) that the second applicant seeks to die by suicide.
[37] The Tribunal has also considered the DFAT report set out in Annexure B
250. The Tribunal noted that in the statement, the applicant had stated that his wife and children could have moved to [Country 1] to be with him, but that they chose not to, as they considered the education was better for the children in Bangladesh than in [Country 1]. At the first hearing the Tribunal put to the applicants that except for the claim relating to [Mr B] (which the Tribunal noted it had concerns about), it appears that they considered Bangladesh to be a suitable place to live, because they had the opportunity to take the whole family to live in [Country 1] but they had chosen not to. The Tribunal noted that it would have to have regard to the country conditions in the DFAT Report and if it did not accept their claims relating to [Mr B], then when considering the country conditions it may not find that the applicants face a real chance of serious harm or a real risk of significant harm for any reason, including general violence or corruption or violent crimes. The wife responded that before they had these problems they were fine in Bangladesh but now thinking about the children (because of [Mr B]) it is not safe or suitable for them.
251. Although they had had the opportunity to raise any new fears or concerns (apart from those relating to [Mr B]) at the first hearing, and they did not do so, in their first s 424A response they did raise additional claims. It was stated that the family have got used to the culture here and he is worried abut how they will deal with cultural differences if they have to go back to Bangladesh. If they have to return to Bangladesh this will affect the children mentally and they will suffer assault physically. He is the breadwinner of the family and he will not earn enough money to support them. The Tribunal discussed these matters at the second hearing. The Tribunal noted that it had already raised at the first hearing its concerns that they may not have been truthful about their background and claims. It put that they are a well-educated family who have been able to successfully obtain visas to a variety of countries and in some instances have travelled to other countries, and he has work experience in a number of countries. The Tribunal put that it does not seem that the applicants would be in such a difficult financial position such that they would face a real chance of serious harm or a real risk of significant harm. They have family back in Bangladesh, both adult applicants were educated at university, so it does not see why they would have a difficulty in going back and having their children educated and that they could survive financially. In response the applicant said that there is a life threat and his life will not be safe (from [Mr B]), they will not have safety and security in Bangladesh for reason of [Mr B]; the children’s future is a secondary concern.
252. The Tribunal asked for clarification as to whether all the claims about physical and mental harm only relate to [Mr B] and he agreed. The wife said that this clarification of the claim is true. He said he will be tortured and killed and a reason will be demanded from him. The wife said that whatever her husband says is true. The daughter has grown up and she will face torture and harm because of [Mr B].
253. The Tribunal noted again at the second hearing that the wife and the children had the opportunity to come and live in [Country 1] for 3 years but they didn’t do so which indicates that Bangladesh is a place which is suitable for them to live in (if it does not accept the claims about [Mr B]) and the Tribunal noted that while the country information does indicate there are problems such as crime, it does not appear that this amounts to the level of a real chance of serious harm or a real risk of significant harm. Further, the Tribunal noted that even if there are cultural changes, they have already adapted to cultural changes including when they came to Australia. The Tribunal put that it did not appear that adapting to cultural change amounts to a real chance of serious harm or a real risk of significant harm.
254. The applicant responded that his daughter was enrolled in a good school in Bangladesh and that is why they stayed in Bangladesh, and at that time there was not the problem from [Mr B]. The wife said what her husband said was correct and they had no problems in Bangladesh and it was only because of the problems of [Mr B] that they moved to [Country 1].
255. The Tribunal finds that all of the claims except those relating to financially surviving and education of the children and adapting to culture/language, relate to [Mr B], and the Tribunal rejects all claims of harm based on the claims relating to [Mr B]. The Tribunal does not accept that they have a current fear of the circumstances in the country (such as crime, general violence) generally, as these matters have all been clarified as relating only to the circumstances relating to [Mr B].
256. Concerning the other claims, the Tribunal put to the adult applicants that it does not appear that any of these claims reach the level of a real chance of serious harm or a real risk of significant harm. While accepting that the applicants may have some concerns about returning to Bangladesh, and the lack of opportunities they believe they have in their home country, and that there may be some difficulty in adjusting, they will be returning as a family, together, and the Tribunal does not accept that the situation for them will amount to the applicants facing a real chance of serious harm for one of the five reasons referred to above, nor a real risk of significant harm.
257. The Tribunal does not accept the claims relating to [Mr B], and it is not satisfied on the evidence before it that the applicants face harm amounting to a real chance of serious harm or a real risk of significant harm for reasons of crime, corruption, finances, the assertion that the children don’t speak Bengali (although they live with their parents who speak Bengali and fluently used a Bengali interpreter in the hearing), and the assertion that the children consider Australia to be their home and that there will be cultural differences, the assertion that the applicant is getting older and may find it harder to support the family, or that the children will not access education. The Tribunal finds that the applicant has not been truthful about his financial situation and sources of income and it rejects his claim that he will not be able to financially support his family and that the children may not be able to obtain an education.
258. The Tribunal notes that the applicant had referred to an incident of previous harm; stating that he was a social organiser in 1995, and in 1997 he founded the [Organisation 1]. In June 2002 he was trying to help disaffected people in the community, however on 24 June 2002, the major community and some terrorists attacked him with hockey sticks which broke his left knee. He suffered for 2 years with residual damage. The claim was raised at the first hearing and discussed as the applicant claimed it was a reason for him not to have sought the money from [Mr B] when he returned, namely because it made him fearful (which was inconsistent with his statement that when he returns he intends to get the money from [Mr B]). The Tribunal raised its concern with this claim. The applicant did not otherwise say that the 2002 events were relevant. On the basis of the adverse credibility finding, the Tribunal does not accept this claim.
259. The Tribunal has considered each applicant’s claims individually and on a cumulative basis, having regard to the findings above and the relevant country information, and other than those claims accepted above, the Tribunal rejects all the various claims made and finds that each of them do not have a well-founded fear of persecution as a refugee for any of the reasons put forward by them or on their behalf.
Complementary protection

Having concluded that the applicants do 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) (see Attachment A, which provides a summary of the relevant terms).

261. The Tribunal does not accept that the applicants have experienced any adverse interest or harm in Bangladesh (or that the circumstances claimed in [Country 1] occurred other than it has been accepted that the applicant did work in [Country 1]). While it has accepted that it may be difficult to adjust at first and that there may be cultural and language differences, it has found that the applicant has not been truthful about his financial situation and source of income and it rejects his claim that he will not be able to financially support his family, including in relation to education or for reasons of his health or age. It does not accept that the applicants adjusting to their home country having been away for a number of years means that they will face a real risk of significant harm. On the evidence before it the Tribunal does not accept that the applicants face a real risk of significant harm (as discussed in Annexure A) in the form of difficulty adjusting, financial difficulties, or difficulties obtaining education.
262. Any other fears (crime, corruption, bribery, physical or mental harm) were all claimed only because of [Mr B]; the Tribunal has not accepted that the claims relating to [Mr B] are true. Having considered their claims and circumstances on a cumulative basis, it is not satisfied that the applicants face a real risk of significant harm for the reasons claimed or for any reason.

On the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, in this case, Bangladesh, there is a real risk that they will suffer significant harm for the purposes of s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION

265. The Tribunal affirms the decision not to grant the applicants protection visas.
Christine Cody
Member

ANNEXURE A - CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted below .
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 below.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
ANNEXURE B - COUNTRY INFORMATION FROM DFAT REPORT
Economic overview
2.5 The World Bank classifies Bangladesh as a lower-middle income country. According to World Bank figures, poverty declined from 43.5 per cent in 1991 to 14.3 per cent in 2016 based on the international poverty line of USD1.90 per day. Bangladesh is scheduled to graduate from United Nations Least Developed Country Status in 2026.
2.6 GDP growth has been strong in Bangladesh over the last several years despite the COVID-19 pandemic. According to the Asian Development Bank, growth of 8.2 per cent was recorded in 2019, dropping to 3.5 per cent in 2020 and rising again to 5.5 per cent in 2021. 2.7 About half of the population of Bangladesh is employed in the agriculture sector, with rice the most widespread crop. The services sector is also important to the Bangladeshi economy, as is the garment industry. Many international fashion labels have outsourced garment production to factories in Bangladesh, which are largely staffed by Bangladeshi women.
2.8 The economy recovered strongly from the COVID-19 pandemic. As elsewhere in the world, however, high inflation has caused significant pressure on Bangladeshis, particularly the poor. Fuel prices, for electricity generation and transport, as well as costs of raw materials, have increased, leading to higher prices for everyday goods and services.
Education
2.25 Twelve years of primary and secondary education is possible but, according to UNDP figures, on average students complete around six years of schooling. Less than half of adult males have some level of secondary education and less than 40 per cent of adult females have some secondary education. The literacy rate is about 74 per cent.
5.26 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 take an interest in high-profile individuals, but the vast majority of returning Bangladeshis would not attract such interest.
5.27 Documents from Bangladesh are difficult to verify. Document verification can involve a difficult, resource intensive and long bureaucratic process that is often not successful. Some documents can be verified more easily – for example birth, marriage and death certificates can be verified online – but such ‘verification’ is not necessarily an indication that the document is genuine. Even in those cases, verification is sometimes not possible.

[2023] AATA 4683

29 October 2023

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Immigration

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