1621944 (Refugee)

[2022] AATA 2224

1621944 (Refugee) [2022] AATA 2224 (2 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621944

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Jane Marquard

DATE:2 May 2022

PLACE OF DECISION:  Sydney

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

Statement made on 02 May 2022 at 6:56am

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh National Party (BNP) – anti-Awami League party – family involvement in BNP – perception of wealth – beaten and injured by Awami League members – attempted extortion – relocation – decision under review affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 25
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
CSO15 v MIBP (2018) 260 FCR 134
FCS17 v MHA [2020] FCAFC 68
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMA v Rajalingam (1993) 93 FCR 220
Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827
Prasad v MIEA (1985) 6 FCR 155
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816
SZTOO v MIBP [2015] FCCA 1631

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

BACKGROUND AND APPLICATION FOR REVIEW

1. The applicant is a [age]-year-old man from Bangladesh. He first arrived in Australia [in] July 2015 on a 12-month Work and Holiday (Subclass 462) visa.

2. He applied for a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act) on 29 June 2016. The applicant seeks protection on the basis of his political opinion or because of perception of wealth. He claims that he would be targeted by the authorities or Awami League supporters on the basis of his connections to the Bangladesh National Party (BNP) and Chaatra Shibir, the student wing of Jamaat-e-Islami.

3. A delegate of the Minister for Home Affairs refused to grant the applicant the visa on 15 December 2016. The matter is now before this Administrative Appeals Tribunal (the Tribunal) for review.[1]

   [1] Section 25, Administrative Appeals Tribunal Act 1975 (Cth)

4. The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. Details of the relevant law are set out below, but in summary, in order to meet the refugee criterion, the applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criterion there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to his or her home country there is a real risk of significant harm.

   SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW

5. 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). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.

6. An applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act. 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).

   Refugee criterion

7. Section 36(2)(a) of the Act 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.

8. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of that country: s 5H(1)(a) of the Act.

9. Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.

10. The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225 at [233] (Brennan CJ).

11. 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 of the Act, which are extracted in Attachment A to this decision.

    Complementary protection criterion

12. If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.

13. 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) of the Act, which are extracted in Attachment A to this decision.

    The applicant must satisfy the statutory elements

14. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act.

15. The applicant must satisfy the Tribunal that all of the statutory elements are made out (Abebe v Commonwealth of Australia 197 CLR 510).

16. The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to seek out evidence to support an applicant’s claim (ABT16 v Minister for Home Affairs [2019] FCA 836) or make out the case for the applicant (Prasad v MIEA (1985) 6 FCR 155).

    Mandatory considerations

17. In accordance with Ministerial Direction No.84,[2] made under s 499 of the Act, the Tribunal must take account of the 'Refugee Law Guidelines'[3] and 'Complementary Protection Guidelines' [4]prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. While the Tribunal should have regard to policy, as there is public interest in achieving consistency, Departmental policy is not binding on the Tribunal.[5]

    [2] Ministerial Direction No.84, Consideration of Protection Visa applications, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, 24 June 2019

    [3] Policy – Refugee and humanitarian – Refugee Law Guidelines, Section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines), Department of Home Affairs

    [4] Policy – Refugee and humanitarian - Complementary Protection Guidelines, Department of Home Affairs

    [5] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

    EVIDENCE CONSIDERED IN THIS REVIEW

18. The Tribunal has considered evidence and submissions made to the Department, other Departmental records pertaining to the applicant, evidence to this Tribunal and independent sources about Bangladesh.

    Summary of evidence in Department files

19. The applicant provided details of his claims in an application form to the Department, supporting documents and an interview with a delegate of the Department. A summary of his evidence follows.

20. The applicant states in his forms that he is a Bengali and a Sunni Muslim. The applicant’s parents and two of his brothers, [Mr A] and [Mr B], reside in [Country 1]. He has a sister and one brother, [Mr C], who reside in Bangladesh.

21. The applicant is from [District 1]. He lived there from birth ([year]) to December 2008.

22. He attended high school until [year] and then completed a Bachelor of [Discipline 1] in Chittagong in 2013. He worked as a [Occupation 1] from 2011 to 2013 in Chittagong, and then as an intern at [Employer 1] from September to December 2013.

23. He claimed that his family had a longstanding involvement with the BNP and were active members. He said that his father made financial contributions during elections, and his family were known to be supporters.

24. He said that his brother, [Mr A], was a [Occupation 2] at [Association 1] of [City 1], and [Office Bearer 1] of the [District 1] BNP and Ja maat-e-Islami [Group 1].

25. The applicant completed his ‘SSC’ in [year] at [school] in [City 1]. He then started his HSC at [College 1] in [City 1]. Here he ‘followed the path’ of his brother and became involved with Chhatra Shibir, the Student Wing of Jamaat-e-Islami. The applicant was a member of Shibir (Shathi) and served as the class secretary of the Shibir, representing his class at the College Shibir. When asked at interview why he got involved, he said that ‘when I started college I was looking for activities from them and I was influenced and got overwhelmed by these activities. That is why I thought I can support.’ At interview, he said there were 80 in his class and he held the position for two years. He said that he participated in meetings every 15 days in the office. Asked what they discussed, he said that he submitted the ‘prayer activities’, five times a day, and they talked about whether they read the Quran or not. He said that during this time, he received many threats from Awami League (AL) members. He said that he was especially targeted by [Mr D], who was a [Relative 1] of the then [City 1] [politician Mr E] (an Awami League leader).

26. At interview he said that he had attended many rallies and demonstrations and had to flee police when there was a raid. He said that he was never arrested. Asked by the delegate why he did not mention this in his application, he said that he ‘only had one page’. He also said at interview that he lived in two different areas over six years, and during that time there were about five to seven raids a month. However, some months there were less.

27. The applicant claimed that because of the threats and harassment he received, he decided to move to Chittagong to complete his bachelor’s degree. He lived in Chittagong from 2009 to 2014. He used to visit [City 1] during this time. At his Departmental interview, he said that during the six years he lived in Chittagong, there were raids against the Shabir and BNP members on a weekly or monthly basis. He avoided arrest by living away from the areas where these members resided.

28. The applicant’s brother moved to [Country 1] in October 2005 and became a [citizen]. In 2011, the applicant’s brother had applied for a sponsorship visa to take the applicant to [Country 1].

29. He said that during the 2014 election, the BNP and Jamaat-e-Islami coalition boycotted the general election. [Mr E] became an MP for the first time without election. He said that after that, the Awami League members and supporters started targeting people like the applicant to intimidate and harass because they knew the applicant was a Shibir.

30. He submitted that the applicant’s family were residing in [Country 1] and this gave rise to perceptions that the applicant was wealthy. They also knew the applicant’s father had provided financial contributions to the BNP. Because of that, on a return visit to [City 1] in 2014, the applicant was threatened by [Mr D] who demanded the equivalent of AUD70,000 from him.

31. He claimed in his application that [in] February 2014 he was beaten up by [Mr D], [Mr E]’s [Relative 1], and 10 to 15 Awami League supporters at [location] in [City 1] while he was waiting for a bus. They beat him with hockey sticks and bamboo sticks. [Mr D] threatened to harm the applicant unless he paid the money that had been demanded. He said that some people came forward, which made the attackers leave. He claimed that he was hospitalised for six days. He went to the police station to report the incident, but the police did not want to take any action because [Mr D] is the [Relative 1] of [Mr E]. At the interview he said that he was waiting for the bus, and this ‘person or group’ said that they were ‘waiting for the money’ and they started ‘torturing’. He said that he was beaten by 10 to 15 people, and he knew three to four of them including [Mr D]. He said he had scratches on his back, head and leg. At interview, he said that he did not report it to police.

32. He said that [Mr E], [Mr D]’s [relative], had now been elected as a government MP and was ‘notorious for his criminal activities’.

33. He said that due to threats continuing in [City 1] and Chittagong, he decided to move to Dhaka for ‘safety reasons’. After the incident he wanted to keep a low profile in order to leave Bangladesh. The applicant said that he was able to apply for the visa because no one knew about his political affiliation at that time and there were no cases against him.

34. The applicant said that he came to Australia in 2015 and did not have an intention to apply for a protection visa at that time as he was awaiting his [Country 1] visa. He said that the [Country 1] embassy advised it could take five to seven years. He said that his applications for a [Country 2] visa and a [Country 1] visitor visa were refused. He said that he fears returning to Bangladesh as the country situation is getting worse by the day, and the international community is not taking any constructive steps to force the Awami League government to stop its inhuman treatment. He claimed that there are more than several thousand Jamaat and Shibir members in jail.

35. The applicant said that he fears if he goes back to Bangladesh he will face serious harm including torture, degrading and cruel treatment, detention and killing. This is because he has worked for the Jamaat Chhatra Shibir and supports the political objectives of the Jamaat. He said that he holds a political opinion against the Awami League and its political activities. His brother was a [Office Bearer 1] of the BNP-Jamaat coalition and his family are considered a well-known family holding a political opinion against the Awami League party.

36. The applicant claimed that he would not be able to get adequate state protection from the authorities because he holds a political opinion against the current government in power. The applicant fears that even if he moves to another part of Bangladesh he will continue to face harm because he will continue to engage with political activities. The applicant believes that unless activists apply pressure to the current government, the current government will continue its inhuman abuses.

37. The applicant said that due to his family’s profile as Jamaat-BNP activists, the family faced threats, intimidation and harassment from the Awami League.

38. The applicant confirmed that he had not been politically active in Australia. At interview he said that he had not received any further threats since he had been in Australia.

39. In his Department interview dated 5 December 2016, the applicant said that he had applied for a visa to [Country 3] after [Country 1] rejected his application. He said the visa application had expired. He said that his brother and parents left Bangladesh because they were in opposition parties. He said that his remaining brother in Australia was in hiding and had ‘life-threatening issues’, but his sister did not have any problems as she lived ‘in a different place’. He said that the brother remaining in Bangladesh ‘did not have a strong background with politics’ but all of his family members were supporters.

40. The applicant’s representative provided citations and quotations from a number of country sources and media articles dated between 2014 and 2016, relating to ‘persecution against the opposition party members and activists’. It was submitted that these sources indicated that opposition political activists face arrests and violence and the applicant would be found to hold views antithetic to the Awami League, on the basis of being a ‘worker of Shibir and Jamaat’. It was submitted that not only high profile BNP or Jamaat political leaders, but also local level Jamaat supporters, face serious harm. It was submitted that there was no place to relocate safely.

41. A list of documents provided to the Department is set out in Attachment B.

    Summary of evidence before the Tribunal

42. The applicant appeared before the Tribunal on 2 March 2022 to give evidence and present arguments relating to the issues arising in relation to the decision under review. There had been some delay in scheduling the hearing as the Tribunal conducted video hearings during the lockdowns imposed by the COVID-19 pandemic, and the applicant requested an in-person hearing. The applicant was represented by his representative, [named]. An interpreter assisted the Tribunal. The applicant confirmed that he could understand the interpreter clearly and was satisfied with the standard of interpretation. The evidence is referred to in the findings and is summarised below.

43. The applicant confirmed that he was born in [District 1], in [region of] Bangladesh. He said that he believes that there are about [number] people in [City 1]. His grandparents, who have now passed away, came from this area.

44. His mother was a housewife when he was growing up, and his father was a [Occupation 3] who also had a [business] until 2010. His parents moved to [Country 1] in 2012 following his brother, [Mr A], a [Occupation 2], who had moved to [Country 1] in about 2005/6. Later, another brother, [Mr B], followed. The applicant said that [Mr A] was granted a [specified visa], and he became a citizen.  His younger brother and parents followed on ‘family/parent visas’.  The applicant has applied for a visa in [Country 1] and is still waiting for an outcome ‘as it can take 10 years’. A third brother, [Mr C], lives in Dhaka, Bangladesh and is unemployed. The rest of the family support him. He has a sister who lives near to [City 1]. She is working and her husband has a [business]. He also has aunts, uncles and cousins in [City 1].

45. He said that his family was upper middle class. His parents still own a property in Bangladesh, but it is empty and run-down. The remaining family members do not live in the family property for safety reasons.

46. His parents visited Bangladesh about six to seven months ago. His brother back home, [Mr C], had a baby who had medical conditions from birth, and so they moved to Dhaka. His parents and [Mr A] went to visit [Mr C] to support him. The baby died and they flew back to [Country 1] six days after arrival in Bangladesh.

47. He said his family members all support the BNP. His father was a [Occupation 3] and had a business in the city. Local people thought of him as a leader as [Occupation 3] are looked up to as community leaders. He was a prominent figure and a member of the BNP, and he provided donations, although he was not elected to any position. His mother was a supporter of the BNP but not otherwise involved. His brother, [Mr A] completed his study in Dhaka as a [Occupation 2]. He confirmed that [Mr A] was a [Occupation 2] of [Association 1] of the BNP and was elected as [Office Bearer 1] of the [District 1] BNP from 2004 to 2005 and then went overseas. His other siblings were not actively involved but supported the BNP. He said he has some cousins who are involved with the BNP but mostly they are supporters. One cousin was [an office bearer] of the [District 1] BNP, but he moved to [Country 1]. He said that every one of his relatives supported the BNP. He said that in his family everyone talked about politics, especially during elections. People would come to his home for meetings during elections. Because of his family’s values he could not support the Awami League.

1. He confirmed that [Mr A] resigned from the BNP in 2005 and went to live in [Country 1]. He said that he did not face any political problems as such, but the election was coming so he left because of the opportunities living in [Country 1] provided. At that time, he planned to return to Bangladesh.

2. The applicant attended [College 1] for his HSC from [year]. This was his first opportunity to get involved in politics, as all political groups were represented in the college. He said that the school he had attended was highly acclaimed, so when he arrived at the college, they asked him to be the secretary for the class for the Chhatra Shibir, the student wing of Jamaat-e-Islami, and he thought ‘why not’. He was asked what he had to say or do in order to become Secretary. He said that he filled in a membership form. He was asked if he had to take any form of oath. He said that he did not.

3. He said that he was secretary from [year] to [year]. He said that as secretary he participated in a college festival. He said that the student group worked to facilitate better study conditions, and invited students to pray and get involved in cultural festivities. He said that politics was ‘not that bad’, and there were few clashes between Awami League students and Chhatra Shibir students. He explained that Chhatra Shibir was about college politics and cultural activities rather than BNP national policies.

4. He was asked if he was aware of the Chhatra Shibir five-point program[6], which is referred to on the Facebook page for Chhatra Shibir. He said that he was not aware.

   [6] Chapter one of Islami Chhatra Shibir Constitution, Islami Chhatra Shibir Facebook page

5. He said at the same time he was involved with Chhatra Shibir, he also supported the BNP, along with family members. He was asked if he knew what age people could join the BNP. He said he thought it was 18 years old. He was asked what policies of the BNP he supports. He replied that he liked a lot about them. Asked to name particular policies he supported, he said ‘first and foremost’ the BNP stands for fair and free elections, and anti-corruption. He said when the BNP was in power, crime and corruption were lower than they are currently. He said that the BNP maintained law and order and were impartial. He said that under the Awami League, everything is partial, and no one else can say anything against the government. He said that with the Awami League being in power for some time, they have suppressed all other parties, and groups in student politics.

6. The applicant said that he had no problems from the authorities at that time. He said there were scuffles and arguments but nothing serious during that time.

7. He said that as a BNP supporter he did not have too many problems until he went to Chittagong to [Institute 1] from 2009 to 2014. He studied for a Bachelor of [Discipline 1]. He chose this university because it had a reputation as a good university. While studying he worked in a local restaurant but when he finished he did not have a job, although he completed an internship in [Employer 1] in Chittagong.

8. He said that [Institute 1] is a private university, so politics is banned. He said that he would talk to friends about politics but there were no political parties on campus. He would listen to leaders talk in common places, such as tea stalls. He did not get involved in any particular political group but always supported the BNP.

9. The applicant claimed that he went to rallies at the end of 2013 when the Awami League banished the caretaker government. He told the Tribunal that there were huge protests everywhere, and ‘all people not just political people’ would attend, to try and bring back the caretaker government for fair elections. He said that there were rallies everywhere. At the same time, there were Jamaat leaders being tried at the war tribunal and hanged for involvement during the Bangladesh war in 1971 for atrocities. Police could arrest witnesses deposing in the cases. It was a witch-hunt and the international community all commented, including Amnesty and the UN. He said that the trials were not fair. He said that he attended rallies for this as well. He said that he went to two or three rallies in total.

10. The applicant confirmed that he did not suffer any problems from the authorities because of his attendance at rallies. However, Awami League students whom he knew from college started intimidating BNP supporters. His family was threatened and intimidated by these Awami League supporters. He said that they were threatened ‘not that big’ prior to elections but then his father came home to support the elections. The BNP decided to boycott the elections and so his father decided to return to [Country 1]. However, Awami League supporters knew that his father had returned, and intimidated him and his brother. He knew a person called [Mr D] from college, the [Relative 1] of [Mr E], who was [a local politician] at that time and later became a Member of Parliament. At college ‘he knew him by his face’. They did not have conflict at that time. [Mr D] knew his family as well because they lived only [number] kms apart.

11. He said that [Mr D] tried to extort him and his family. The applicant said that he did not go to [City 1] often. His brother and his sister-in-law were living there and were threatened so much that they had to move out. He said that [Mr D] had his phone number and called him and his relatives saying that as they were supporters of the BNP, they had to pay money to him or they would be ‘at their mercy’. They were all threatened a number of times. He said that he was first contacted by [Mr D] after the election, around January 2014. They met by chance in the city and he threatened them and asked for money. He told [Mr D] that he would talk to his father to get money. [Mr D] said that he would ‘find him’. He told [Mr D] that he was a student, and he would try and find money as he wanted to pacify him.

12. The applicant said that in February 2014 he had left his home. He had changed his telephone number so [Mr D] could not contact him. He went to [City 1] to see his relatives and was waiting in the bus shelter and by chance he was seen by [Mr D] and Awami League supporters. About 10 to15 of them approached him and circled him, asking why he had not paid them money. He said that they were in the middle of the city so there were plenty of onlookers, but people did not intervene because [Mr D] was the [Relative 1] of [Mr E]. They beat him up badly with wooden sticks named ‘lati’, then left him there and went away. He said that he was rescued by people nearby, and taken to a local house, and then taken to hospital. He had head injuries, and injuries on his leg and back. His leg was fractured. He was in hospital for six days. The attack took place in the afternoon, maybe 6pm or 7pm, and he got to the hospital in one hour. He said that he got stitches, and saline, and some injections and tablets. He showed the Tribunal visible scars in long lines (which appeared to be consistent with being hit by sticks), on his back.

13. He said that he reported the assault to the police. His father and brother called a ‘lot of people’, but the police did not pay any heed and they could not lodge a formal complaint as the perpetrators were powerful. He said that his brother in [Country 1] told his relatives to get hold of the police.

14. The applicant said that he wanted to study abroad when he finished university but ‘it all got unsettled’. He said that in the year after the attack, before he travelled to Australia, he stayed in Chittagong. There was ‘continuous conflict’ and his brother said he should move to Dhaka. So he moved to Dhaka and his brother suggested that he should apply for student positions abroad. During that year he was not involved in politics as the election was over.

15. He told the Tribunal that he looked online for student positions and this was how he found out about working holiday visas in Australia. He said that he got a letter from his college in Bangladesh and applied for student positions, and was offered a student position at a [European] university. He then saw an advertisement on Facebook for working holiday visas in Australia and he applied. He had to go for an interview with the government. The fact that his family had been involved with the BNP was not an impediment to getting the position and did not hamper getting a visa. He said that he was able to get a police check as he had done nothing wrong.

16. The applicant said that he did not know anyone when he arrived in Australia. He then met a person from Bangladesh and he lived with him for one day, and later found his own accommodation and work in a restaurant.

17. He confirmed that he has had no political involvement in Australia. He said that he has mostly lived in the countryside, such as [City 2], where there are not many Bangladeshi people. He lives in [City 3] currently.

18. He was invited to provide any further evidence. He said that his parents are unwell. They have been calling him to ask him what is happening. He said that his father has hypertension and is worried about him. He has not told his father about his Tribunal hearing. They ask him all the time about what is happening. His family like to help people and are now political victims and are scattered everywhere. He said that he just wants to live peacefully.

19. The representative requested that the Tribunal consider that it is the applicant’s intention to express his political opinion if he returns to Bangladesh. Although he has not been involved in politics in Australia, he has a real and genuine interest in Jamaat and his problems will continue. The applicant confirmed that he continues to support both Jamaat and the BNP.

    Independent country information

20. The Tribunal has considered relevant country and media reports from a variety of sources, including sources referred to by the applicant. The most relevant of these sources are referred to and cited in the findings and the following information is provided by way of background.

21. The People’s Republic of Bangladesh became a sovereign state on 16 December 1971, at the end of a nine-month war against Pakistan. The years since independence have seen periods of military rule, democracy, and political turmoil. Those periods were also marked by the assassinations of two presidents, three military coups, and various other attempts to overthrow the government. [7]

    [7] L. Erlano and K.U. Gadaingan (eds), ‘Electoral Challenges in Asia Today’, The Asian Network for Free Elections, Thailand, October 2016, p. 61 available at >

    Bangladesh has had a two-party political system dominated by the centre-left Awami League and the centre-right BNP since 1991. There has been a long rivalry between the ruling Awami League and its political opposition, headed by the BNP and its ally, Jamaat-e-Islami, the largest Islamist party in Bangladesh.

22. The BNP was formed in 1978 by then President of Bangladesh, Ziaur Rahman. He was assassinated by military officers in 1981. His widow, Khaleda Zia, became party leader in February 1984.

23. From 1991 to 2006, political power alternated between the BNP and the more secular Awami League. The BNP held power in 1991 to 1996, and again between 2001 and 2006. As political violence spread, a military-backed technocratic caretaker government took over in January 2007. This government successfully conducted elections to the national parliament (Jatiyo Sangshad) (referred to as general elections) in December 2008, in which the Awami League-led alliance under the leadership of Sheikh Hasina won with an unprecedented majority in parliament. [8]

    [8] ‘EASO Country Information Report Bangladesh Country Overview’, European Asylum Support Office (EASO), December 2017, p.28

24. In April 2012, opposition BNP leader Khaleda Zia confirmed an '18-Party Alliance' with other political parties.[9] Political violence peaked around the 2014 elections and subsequent hartals (strikes).[10] The BNP and its allies boycotted the elections and called for reinstatement of the caretaker government. In what was described as the most violent polls ever, the Awami League won a significant majority in parliament in this election.[11]

    [9] ‘EASO Country Information Report Bangladesh Country Overview’, European Asylum Support Office (EASO), December 2017

    [10] International Crisis Group, ‘Political Conflict, Extremism and Criminal Justice in Bangladesh’, 11 April 2016

    [11] ‘EASO Country Information Report Bangladesh Country Overview’, European Asylum Support Office (EASO), December 2017

25. The BNP and its allies called for a country-wide blockade and strike (hartal) on 5 January 2015 over the controversial 2014 general election. This resulted in a major political crisis, which included mass arrests of BNP leaders and activists. An arrest warrant was issued for Khaleda Zia over two corruption cases.[12] Subsequent local and municipal elections were accompanied by reports of violence, electoral irregularities and suspension of voting.

    [12] Odhikar, ‘Bangladesh: Annual Human Rights Report 2015’

26. In February 2018, Khaleda Zia was jailed on corruption charges for which she was sentenced to five years in jail. BNP Vice Chairman, Tarique Rahman (Zia’s son, who has been living in exile in London since 2008), and four others were sentenced to imprisonment in the same case. As a result, Khaleda Zia was not allowed to participate in the 2018 general election. The BNP announced that Tarique Rahman would be acting Chairman. In October 2018, the High Court doubled Khaleda Zia’s sentence to 10 years and she received another seven years in another corruption case. A Bangladeshi court also sentenced Tarique Rahman to life in prison over an alleged 2004 assassination attempt on Sheikh Hasina.[13]

    [13] F. Mahmud, ‘Zia and the BNP crushed by a legal avalanche’, Asia Times, 19 February 2019 available at F. Mamud, ‘Khaleda Zia Jailed for five years in corruption case’, Al Jazeera, 8 February 2018 available at A.I.Shaon, ‘Jail term doubled for Khaleda in graft case’, Dhaka Tribune, 30 October 2018 available at ‘Bangladesh’s ex-PM Khaleda Zia given new jail sentence’, Deutsche Welle (DW), 29 October 2018 available at ‘Tarique Rahman acting chairman: BNP leader’, The Daily Star (Bangladesh), 8 February 2018

27. In October 2018, the BNP joined an alliance named Jatiya Oikya Front (National Unity Front) (Oikya Front) ahead of the next general election. The alliance declared its 11-point agenda, including ensuring checks and balances in state power, decentralisation of administration, freeing MPs from the stringent restrictions imposed on them under article 70 of the Constitution, formation of a constitutional commission to make appointments to all constitutional and other important posts and full independence of the judiciary. It also announced a seven-point demand, including holding the next parliamentary election under a non-partisan government, dissolution of parliament before the polls and recasting the Election Commission (EC). [14]

    [14] S. Sumon, ‘Bangladesh’s new opposition alliance reshapes political arena’, Arab News, 14 October 2018 available at A. Hossain, ‘Making coalitions dominates electoral politics’, Prothom Alo (Bangladesh), 18 October 2018 available at S. Liton and M.A. Molla, ‘New alliance launched’, The Daily Star, 14 October 2018 available at >

    The 11th general election was held in December 2018 and was marred by allegations of rigging, ballot-box stuffing, and intimidation of voters and supporters of the BNP. International election monitors were reportedly not issued accreditation and visas within the timeframe necessary to conduct a credible international monitoring mission. From mid-2018, cases were being filed against BNP leaders and workers, and they were being arrested. The BNP's official website - - was also blocked due to alleged “distasteful” content.[15] With most of its leaders and activists either in hiding or in jail, the BNP was observed to be almost invisible during the campaign and on the day of the vote. [16]

    [15] M.Z. Islam, “BNP website blocked over ‘distasteful’ content”, The Daily Star, 21 December 2018 available at ‘BTI 2020 Country Report — Bangladesh’, Bertelsmann Stiftung, 1 April 2020, pp.5,8; ‘Freedom in the World 2020: Bangladesh’, Freedom House, 4 March 2020 available at 20200306091519; ‘Election Process Tracking: The Eleventh National Parliament Election 2018’, Transparency International Bangladesh, 21 October 2019, pp.6-10 available at A.E. Ruud and M. Hasan, ‘What went wrong with the BNP, Bangladesh’s main opposition part?’, Al Jazeera, 9 March 2019 available at >

    The BNP nominated 40 candidates from the 20-Party Alliance and 19 candidates from the Oikya Front. The AL and its allies won in 288 seats. The BNP won six seats and the Oikya Front, two seats. No partners of the 20 Party-Alliance won any seat. The Jatiya Party, with 22 seats, is the official opposition. Sheikh Hasina remains the Prime Minister.[17]

    [17] BTI 2020 Country Report — Bangladesh’, Bertelsmann Stiftung, 1 April 2020, p. 8; S. Afrin, ‘BNP-led 20-party alliance partners not keen on Oikya Front’, Prothom Alo, 8 April 2019 available at >

    The Jatiya Party is the official opposition in parliament, as the second largest party holding 25 seats. It contested the 2018 election as part of the Awami League’s alliance. When the BNP rejected the results of the 2018 election and representatives initially refused to take their oaths of office, the Chairperson of the Jatiya Party declared it would discharge the responsibility as the main opposition party in the Parliament. In reference to the Jatiya Party’s role in parliament, Transparency International Bangladesh reported in September 2020: “The main opposition [Jatiya] party did not play a strong role in establishing accountability for the government, as it is one of the partners in the electoral grand alliance. The main opposition party cautiously criticized the government's various actions. The main opposition was relatively more engaged in the legislative process but not at an expected level.”[18]

    [18] Transparency International Bangladesh, 30 September 2020, Parliament Watch 11th - Parliament, p. 9 >

    Within this two party system the BNP is the primary ideological opposition party to the Awami League, even though it only holds seven seats in the Parliament. The BNP is the head of two broader political alliances, namely the 20 Party Alliance and the four party Jatio Oikko Front, although both alliances are relatively inactive. Although the BNP initially participated in the local government elections in 2020-2021, the Daily Star reported in February 2021 that the party had announced that it would not take part in future local government elections.[19]

    [19] The Daily Star, ‘BNP will not take part next elections’, viewed 9 November 2021

1. The Awami League leads a 14 party-alliance (the ‘Grand Alliance’) which has won the three parliamentary elections since 2008. In the 350-member parliament (the Jatiya Sangsad) the Grand Alliance forms the government of Bangladesh with the Awami League holding 301 seats in its own right and other members of the Grand Alliance holding 10 seats.[20]

   [20] Parliamentary membership is as at 3 October 2021, >

   Politics has long been dominated by bitter rivalry between two women: Sheikh Hasina, and Khaleda Zia of the Bangladesh Nationalist Party. Both have been prime minister at various times since 1991. Their hostility stems in part from differences over who played a greater role in the country's independence struggle - Hasina's father Sheikh Mujibur Rahman, or Khaleda Zia's husband General Ziaur Rahman. They sank their differences when military ruler Hossain Mohammad Ershad was in power from 1982 to 1990, but they have been uncompromising rivals ever since.[21]

   [21] BBC World News, ‘Country profile Bangladesh’, >

   As referred to above, Khaleda Zia, Chairperson of the BNP, on 8 February 2018 was sentenced to five years’ jail on corruption charges, which was extended to 10 years in jail on 30 October 2018. Her sentence was most recently stayed for six months from 25 September 2021 on the conditions that she does not engage in political activities and that she receives medical treatment in her Dhaka home.[22]

   [22] Dhaka Tribune, ‘Khaleda’s sentence stayed for another six months’, 19 September 2021

   DECISION OF THE DEPARTMENT

2. The delegate of the Department was satisfied that the applicant was a member and supporter of the Chhatra Shibir of the Jamaat-e-Islami and held a number of low-profile positions. The delegate did not accept that he left Bangladesh because of a genuine fear of being harmed. The delegate was not satisfied that he met the criteria for a protection visa.

   FINDINGS AND REASONS OF THIS TRIBUNAL

   Key issues for determination

3. In determining whether the applicant meets the refugee or complementary protection criteria, the key issues are:

   ·Whether the incidents described by the applicant in Bangladesh took place (findings of fact).

   ·Whether there is a real chance of serious harm or a real risk of significant harm if the applicant were to return to Bangladesh in the reasonably foreseeable future.

4. These issues and other threshold issues are discussed below.

   Nationality

5. For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being outside the country ‘of nationality’. For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.

6. The applicant has a passport from Bangladesh issued in 2013. The Tribunal is satisfied on the basis of his passport and testimony that the applicant is a national of Bangladesh, and that Bangladesh is the receiving country for the purposes of the legislation.

   Did the incidents in Bangladesh, described by the applicant, take place?

7. When assessing claims the Tribunal must make findings of fact in relation to the claims made. Asylum cases present particular complexities in regard to fact-finding. Applicants may have difficulties presenting evidence due to experiences in their home countries, as expressed by the Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

   refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

8. Experiences in an applicant’s home country may lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may also be impacted by cultural or psychological issues or level of education, as well as stress caused by separation from home and family. An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[23]

   [23] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, >

   For all these reasons, assessment of credibility is inherently difficult and at times can be based on imperfect perceptions of truth.[24] Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[25] An Australian study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[26]

   [24] Fox v Percy (2003) 214 CLR 118

   [25] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469–511, <  Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’

9. The Tribunal is conscious and mindful that there may be factors that consciously or otherwise influence decisions.[27] The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia[28] in ensuring that the process of credibility assessment is reflective and fair. As a threshold principle, in the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably. The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

   … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

   [27] H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9

   [28] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

10. The Tribunal has taken into consideration the cases and guidelines referred to above and the Tribunal’s Guidelines on the Assessment of Credibility,[29] which reinforce that the Tribunal should be mindful of the various factors which may impact on evidence and should approach the assessment with an open mind. The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims[30]. A similar approach is taken in the Department’s Refugee Law Guidelines[31] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’)[32], which provides useful guidance for this Tribunal. The Tribunal gives the applicant the benefit of the doubt as his evidence is generally credible, and for the reasons set out below. The Tribunal accepts that the applicant and his family supported the BNP when they were living in Bangladesh. The Tribunal accepts that his father made financial contributions during elections, his brother worked as a [Occupation 2] and was involved in the BNP until he left the country in 2005, and his family were known to be BNP supporters. The Tribunal accepts that in 2005/6 the applicant was involved in Chhatra Shibir, the student wing of Jamaat-e-Islami at his college, where he was involved primarily in cultural and college issues rather than political matters.

    [29] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, SZLVZ v MIAC [2008] FCA 1816 at [25]

    [31] Policy – Refugee and humanitarian – Refugee Law Guidelines, Department of Home Affairs, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)

    [32] UNHCR, re-issued February 2019 at 203-204]

11. The Tribunal also accepts that the applicant attended two or three rallies at the end of 2013. He was able to discuss with the Tribunal the reason for the rallies (the Awami League had banished the caretaker government, and the absence of a fair trial of Jamaat leaders at the war tribunal) and explain why he attended (that there were huge protests everywhere, and ‘all people not just political people’ would attend, to try and bring back the caretaker government for fair elections). His account accords with country sources about events of the time.[33]

    [33] ‘EASO Country Information Report Bangladesh Country Overview’, European Asylum Support Office (EASO), December 2017

12. The Tribunal accepts the evidence of the applicant that a person called [Mr D], who was a [Relative 1] of [a local politician] at the time (and later Member of Parliament), [Mr E], attempted to extort the applicant and his family. The Tribunal accepts that [Mr E] and [Mr D] were Awami League supporters and that [Mr D] attempted to extort his family because Awami League supporters perceived the applicant’s family to be wealthy as they had provided donations to the BNP, because they knew ‘he was Shibir’ and because his parents had moved to [Country 1]. The Tribunal accepts that in February 2014 the applicant was attacked by a group of Awami League supporters including [Mr D], at a bus shelter in [City 1]. The Tribunal accepts that the applicant was beaten up and taken to hospital where he remained for six days, with head, leg and back injuries. The reasons for these findings of facts are as follows.

13. Firstly, the applicant had broad general knowledge about Bangladeshi political affairs, as could reasonably be expected of a truthful witness in the applicant’s position, see Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827. He knew that people could join the BNP at aged 18. He told the Tribunal about the boycott of the 2014 elections by the BNP and Jamaat-e-Islami. He referred to campaigns in 2013/14 for the return of the caretaker government and for fair trials at the war tribunal. While he was unaware of the Chhatra Shibir five point program[34], this may have been because of the length of time since he was involved in Shibir.

    [34] Chapter one of Islami Chhatra Shibir Constitution, Islami Chhatra Shibir Facebook page

14. Secondly, the applicant was able to discuss why he supported the BNP, saying that it was because of his family’s values and BNP policies. He said that he liked ‘a lot about them’, and ‘first and foremost’ that the BNP stands for fair and free elections, and anti-corruption. He said when the BNP was in power, crime and corruption were lower than they are currently. He said that the BNP maintained law and order and were impartial. He said that under the Awami League, everything is partial, and ‘no one else can say anything against the government’. He said that with the Awami League being in power for some time, they have suppressed all other parties, and groups in student politics. He was also able to articulate plausible reasons for joining the Chaatra Shibir, declaring that Jamaat-e-Islami ran his college and he had come from a highly regarded school so was seen as a good candidate, and also wanted to follow his brother’s example.

15. Thirdly, his evidence about being targeted by [Mr D] appears plausible as [Mr D] knew the applicant from college and they lived close to each other. The applicant also did not attempt to inflate his role in the BNP, stating that he had no problems from the authorities, suggesting that overall, he was telling the truth. Country sources indicate that [Mr E] is currently a [Member of Parliament] Bangladesh Awami League[35] as claimed by the applicant. The applicant also claimed that [Mr E] was suspected of criminal activities. This claim is supported by country sources. He was allegedly involved in [Incident 1][36] although [Mr E] denied his [involvement].[37] [Deleted]. According to media sources, the police dropped [Mr E] from the charge sheet in [Incident 1]. His involvement had been suspected on the basis of statements given by the accused, but the police said that they found no evidence of his involvement, although his [relative] was charged.[38]

    [35] Bangladesh Parliament, 'List of 11th Parliament Members', 01 January 2019

    [36] [Source deleted]

    [37] [Source deleted]

    [38] [Source deleted]

16. In another article, it was alleged that [an associated event] was masterminded by [Mr E]. Several other allegations against [Mr E] were raised, including that he had a hand in [Incident 1].[39] [Deleted].[40]

    [39] [Source deleted]

    [40] [Source deleted]

17. While Google searches by the Tribunal did not reveal any information about [Mr D] nor his relationship to [Mr E],[41] the fact that the applicant accurately described [Mr E]’s status and activities, does support his narrative about the events which took place in Bangladesh.  

    [41] Searches included Google and CISNET

18. Fourthly, the evidence to the Department and to this Tribunal about his involvement in Islami Chhatra Shibir and targeting by [Mr D] has been generally consistent. One inconsistency was that he said in his Department application that during his time at college, he received many threats from Awami League members and because of the threats and harassment the applicant received, he decided to move to Chittagong to complete his bachelor’s degree.  However, at the Tribunal hearing he said that there had been few problems while at college. When the Tribunal put this inconsistency to the applicant at the Tribunal hearing, he responded that there was a common threat to all BNP supporters in college, but it was later that the real threats took place. The Tribunal accepts that he may have exaggerated his reasons for moving to Chittagong in his Department application and accepts that it was later when he felt threatened by Awami League supporters.

19. Fifthly, the applicant has provided some corroborative evidence. This includes a copy of a translated letter from the [Office Bearer 2] of the Bangladesh Islami Chhatra Shibir dated [in] August 2016 confirming the applicant’s membership on 15 November 2006, and that he took oath as ‘Shathi’. Additionally, he provided hospital records. He told the Tribunal that after being beaten up he went to hospital where he got stitches, and saline, and some injections and tablets, which accords with copies of hospital records provided, which indicate he had ‘multiple lacerations’ and was on an intravenous drip. The applicant also showed the Tribunal visible scars in long lines, which appeared to be consistent with being hit by sticks on his back, as claimed. He also provided an email statement certifying that his brother was a [Occupation 2] of [Association 1] in [City 1], as he had claimed, and photographs allegedly of the injuries he sustained. The Tribunal asked the applicant to comment on sources such as the Department of Foreign Affairs and Trade report which refers to document fraud in Bangladesh in relation to political documents:

    Political party documents may be subject to fraud, as they do not contain the security features of other documents. The patronage-based nature of political participation means that an analysis of the person’s political relationships may be more useful in determining their membership of a party. Obtaining such documents fraudulently may be facilitated through patronage networks, in which case it is probable that the bearer is a member of the party.[42]

    [42] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Bangladesh’, 22 August 2019

20. The applicant said that the documents provided by him are all real documents which can be verified, although he knows that fraud goes on in Bangladesh.  He said that he contacted his relatives to source the documents and they contacted an office of Jamaat (which has now been destroyed). He said that ‘someone’ took the photographs for him when he was injured, and his brother obtained the hospital documents. The Tribunal accepts his comments about the documents, and gives weight to the corroborative evidence, as his evidence is generally credible.

21. The Tribunal is not satisfied that the applicant’s brother, [Mr C] is in hiding in Bangladesh. When asked early in the Tribunal hearing about his brother and sister, he said that [Mr C] moved to Dhaka with his wife because they had a baby who had medical conditions from birth. He did not refer to him being in hiding. He also referred to his parents and other brother travelling to Bangladesh to visit [Mr C] when the baby was ill, to support him. This evidence suggests that [Mr C] was living in Dhaka, rather than hiding and only later in the evidence did the applicant refer to him being in hiding, but without providing detail or corroboration of this claim.

    The refugee criterion

    Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?

22. 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[43].

    [43] Section 5H(1) of the Act

23. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

24. The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:

    ·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    ·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 above; and

    ·the real chance of persecution relates to all areas of a receiving country.

    Does the applicant fear being persecuted for one of the stated reasons?

25. Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons.  This incorporates the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention.

1. The Tribunal is satisfied that the applicant is apprehensive about being harmed because of his imputed political opinion if he returns to Bangladesh, given that he was attacked in the past by Awami League supporters and that he fears that this might happen again as he has been out of the country for some time and may be unfamiliar with current conditions.

   There must be a real chance of persecution

2. For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept[44]; not only must a person fear persecution, there must also be a prospect of that fear being realised.

   [44] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <UNHCR - Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees>

3. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[45]

   [45] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171

   Is there a real chance of serious harm from the authorities?

4. The Tribunal has assessed whether there is a real chance of serious harm from the authorities in Bangladesh in the reasonably foreseeable future[46] by considering the totality of the evidence. Evaluation of chance cannot be reduced to scientific precision[47] but is based on an assessment of country sources as well as common sense and the ordinary experience of mankind.[48] The Tribunal is not satisfied that there is a real chance of serious harm from the authorities if the applicant were to return to [District 1] or Chittagong, the places where he lived prior to his travel to Australia. The Tribunal is not satisfied that there would be a real chance of serious harm, in the sense that the harm would be substantial, as opposed to remote or a far-fetched possibility (Chan v MIEA (1989) 169 CLR 379).

   [46] SZTOO v MIBP [2015] FCCA 1631 at [27]

   [47] MIEA v Wu Shan Liang (1996) 185 CLR 259

   [48] MIMA v Rajalingam (1993) 93 FCR 220

5. In submissions from the applicant’s representative to the Department, citations and quotations were provided from a number of country sources and media articles dated between 2014 and 2016, relating to ‘persecution against the opposition party members and activists’. It was submitted that these sources indicated that opposition political activists face arrests and violence and the applicant would be found to hold views antithetic to the Awami League, on the basis of being a ‘worker of Shibir and Jamaat’. It was submitted that not only high profile BNP or Jamaat political leaders, but also local level Jamaat supporters, face serious harm and that he would continue to support and be involved in political activities in Bangladesh if he returns to Bangladesh.

6. Independent sources do indicate that the authorities in Bangladesh frequently target political opponents for arrest, disappearance and killings. Ruling parties have used state institutions to crack down on political opposition, including repression of free speech, arresting critics and permitting impunity for abuses by security forces. There have also been pervasive enforced disappearances and extra-judicial killings.[49] State institutions have been politicised by the current Awami League government, making them subservient to its agenda.[50] The police and Rapid Action Battalion (RAB) are lead agencies targeting political opponents, operating with impunity.[51] Although the opposition continues to mobilise, the Awami League prevents rallies and arrests opposition supporters during demonstrations.[52] Political activists are targeted with torture and extra-judicial killings becoming more common[53] and evidence of security forces involvement in routine enforced disappearances.[54] Mass arrests are common.[55] Fictitious charges are often laid against political opponents.[56]

   [49] Human Rights Watch, ‘World Report 2021: events of 2020’. 13 January 2021

   [50] Odhikar, ‘Annual Human Rights Report on Bangladesh 2020’, 25 January 2021

   [51]World Organisation against Torture and Odhikar, ‘Cycle of Fear Combating Impunity for Torture and Strengthening the Rule of Law in Bangladesh’, 25 July 2019

   [52] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Bangladesh’, 22 August 2019

   [53] Asian Federation against Involuntary Disappearances, ‘Disappearance of justice – brief information and present status of victims of enforced disappearances, 30 January 2018

   [54] Human Rights Watch, ‘Where no sun can enter, a decade of enforced disappearances in Bangladesh’, 16 August 2021

   [55] Human Rights Watch, ‘Where no sun can enter, a decade of enforced disappearances in Bangladesh’, 16 August 2021

   [56] East Asia Forum, ‘Democracy decaying in Bangladesh’, 6 March 2018

7. However, the Tribunal is not satisfied that the applicant would be targeted for arrest, killing or these other types of serious harm, given his lack of political profile or involvement, even though he has a political opinion contrary to that of the Awami League. The applicant had a low level of involvement in politics, and it was a significant time ago, with his participation in student activities in 2006 to 2008, and attendance at two to three rallies in 2013 at a time when he said ‘everyone’ was attending rallies. While his father was a BNP supporter and donated to the BNP, his father has been out of the country since 2012. His brother, who was involved in the BNP, has been in [Country 1] since about 2005/2006. In regard to the applicant’s participation in student politics, his evidence was that the student organisation organised prayers and other cultural activities and was involved in student issues such as better conditions for study, but not national politics. He told the Tribunal that he had ‘no problems from the authorities at that time’, although he told the Department at interview that he had sometimes fled when he heard there would be a police raid. He told the Tribunal that there were scuffles and arguments but nothing serious. The applicant also confirmed that he suffered no repercussions from the authorities because of his participation in rallies and was never arrested. In fact he told the Tribunal that he has no concerns that his political past will cause problems for him if he returns. He confirmed at the Department interview that he had no trouble obtaining a passport in 2013, or with being granted a Temporary Work and Holiday 462 visa following an interview with the Bangladesh Home Office under a bilateral agreement between Bangladesh and Australia. This required the name of those seeking a visa to be submitted by the Bangladesh authorities to Australia. He confirmed to the Tribunal that his BNP involvement was ‘not an impediment’ for the interview. His history in Bangladesh reveals a low level of involvement in student politics up until 2008 and attendance at a few widely-attended rallies in 2013, with his family’s participation ending in 2012 when they departed Bangladesh.

8. The applicant also confirmed to the Department that he had ‘not been active in Australia at all. I just ring people in Bangladesh once a month’. He also confirmed this at the Tribunal hearing.

9. The Tribunal is not satisfied that the applicant, with this history and lack of profile, would be targeted for serious harm in the reasonably foreseeable future if he returns to Bangladesh. As discussed with the applicant at the Tribunal hearing, sources suggest that ordinary members of the BNP face a low risk of politically motivated violence given reductions in violence since 2014[57]. The DFAT Cable 2021 stated that ‘a BNP supporter may attract attention from the Awami League for support of the BNP[58], however it is unlikely that the applicant would attract attention given his lack of profile and because he has had no political involvement since he left the country. Furthermore, sources suggest that although there is ongoing political violence between the parties, there has been a shift to predominantly intra-Awami League clashes.[59] In its 2022 report, Human Rights Watch states that human rights defenders continue to be targeted with surveillance, politically motivated charges, and arbitrary detention. According to the Report, authorities use the Digital Security Act (DSA) to harass and indefinitely detain journalists, activists, and others critical of the government, resulting in a ‘chilling effect on expression of dissent’.[60] The most recent DFAT report of August 2019 states, among other things, that politics in Bangladesh is volatile and often violent. It notes that the current Awami League government has pursued opposition groups: ‘senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges, and travel bans. Active members of opposition parties and auxiliary organisations […] who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists.’[61] Specifically, in relation to BNP figures, DFAT opines that allegations of violence are credible, and that ‘any BNP member who actively opposes the AL government may be targeted for criminal charges, especially if they are involved in violent protests’. The Human Rights Watch and DFAT reports focus on activists and those who participate in demonstrations.

   [57] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Bangladesh’, 22 August 2019

   [58] DFAT Cable, ‘Country Information Request Report’, 22 November 2021

   [59] Odhikar, ‘Annual Human Rights Report on Bangladesh 2018’, 8 August 2019 and ‘Annual Human Rights Report on Bangladesh 2020’, 25 January 2021

   [60] Human Rights Watch, ‘Bangladesh Events of 2021’, World Report, 2022

   [61] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Bangladesh’, 22 August 2019 paragraph 3.70

10. The Tribunal is not satisfied that the applicant falls into one of these categories of persons who may well be targeted for harm.

11. The applicant himself told the Tribunal that he agreed that there is a low risk as a BNP supporter, but he fears particular individuals wanting money from his family, particularly as he had already been beaten and harmed. The DFAT report is now several years old, and the Tribunal has exercised caution in drawing inferences from the absence of reports. However, the sources read cumulatively do not suggest that the Awami League government or its agents have the motivation or resources to generally pursue low-level BNP supporters with no political engagement, or that they are in fact doing so. The Tribunal is not satisfied that the applicant’s support for the BNP or Jamaat, without more, gives rise to a real chance of serious harm amounting to persecution. 

12. The applicant stated that he also fears being beaten at rallies just for taking part in those rallies and some sources also refer to people who attend demonstrations being arrested.[62] The applicant said people disappear who have spoken out against the government and he fears this as well. The Tribunal is not satisfied, given that he had a low-level involvement while living in Bangladesh, and he has not engaged in political activities since he left Bangladesh, that he would be involved in political activities if he returned to Bangladesh or that he would attend rallies or speak out against the government or the Awami League. While he did attend two to three rallies in 2013, he said that everyone, even those not involved in politics, attended rallies. The applicant’s low level political activities in Bangladesh and his prolonged period outside the country without involvement in politics, lead the Tribunal to conclude that his priorities and interests lie outside politics and that he would not participate in political groups or activities. The Tribunal is also not satisfied that he would be motivated to join a political group or activity, but would feel he has to refrain or alter or conceal his beliefs to avoid persecution.

    [62] Human Rights Watch, ‘Bangladesh Events of 2021’, World Report, 2022

13. In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation’. The fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution. In Chan v MIEA, Dawson J stated:

    “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.[63]

    [63]Chan v MIEA (1989) 169 CLR 379 at 397

14. The Tribunal is not satisfied, given the applicant’s low level of political involvement and on the basis of country sources, that the chance of harm in Bangladesh from the authorities would be more than speculative or plausible. Having found that the applicant is not an activist and will not engage in political activities if he returns to Bangladesh, but is only a low-level supporter, the Tribunal is not satisfied that there is a real chance of serious harm if he returns to Bangladesh for reasons of his political opinion.

15. The Tribunal is not satisfied therefore that there is a real chance of serious harm from the authorities if the applicant were to return to Bangladesh in the reasonably foreseeable future.

    Is there a real chance of serious harm from [Mr D] or his associates in the Awami League?

16. The applicant said that he fears that if he returns, [Mr D] and other Awami League supporters will beat or otherwise harm him for reasons of his family’s political involvement with the BNP, coupled with a wish to extort the family due to perception of wealth. At the Tribunal hearing he was asked why [Mr D] or Awami League supporters would want to target him in 2022 so long after these events took place and as he has not been involved in political affairs since he left the country (particularly as he was only involved in Bangladesh for a short period). He said that he feared returning as there are many protests leading up to elections, and ‘everything is under the control of Awami League’. He said that ‘they would know’ his face and recognise him. He said that he would have to be cooped up at home or he would be threatened. He said that it would be difficult staying out of the sight of [Mr D] and Awami League supporters. He said that ‘they have more power and they are up to the same tactics’.

17. The Tribunal is not satisfied that there is a real chance of serious harm from [Mr D] or his associates or other Awami League supporters for reasons of political opinion or perceptions of wealth, even given the volatility of politics in Bangladesh and the fact that [Mr D] and his associates may still recognise him. After the incident of harm [in] February 2014, he experienced no other incidents of violence until his departure from the country [in] July 2015. He has been in Australia since then and confirmed to the Tribunal that he has received no threats since he has been in Australia. As discussed earlier, the Tribunal is not satisfied that the applicant would engage in political affairs when he returned to Bangladesh, as he did not do so in Bangladesh after his engagement with student politics in 2008, other than attending rallies in 2013, and he has not been involved in political activities in Australia. This means that he would attract little attention as a person with views in opposition to the Awami League. As seven years have passed since he left Bangladesh, it is also unlikely that he would be of interest for extortion, although this is not outside the realm of possibility. However, the fact that the applicant’s brother and sister and other relatives are living in Bangladesh and have not been extorted or suffered serious harm from [Mr D] and his associates, does suggest that the applicant would not be extorted or would suffer other serious harm. His sister lives near [City 1] and his brother is in Dhaka with his wife. His sister is working, and her husband has a [business]. He also has aunts, uncles and cousins in [City 1]. There is no evidence that these individuals have been harmed by the Awami League because of their connection to his family, even though he has said that all of them are BNP supporters. The applicant suggested, when this was discussed at the Tribunal hearing, that his relatives live under ‘serious threat’ and his brother was not involved in politics. The Tribunal does not accept that if [Mr D] and his associates wanted to extort or harm his family members they would not have done so, given that he has said all his family were known to support the BNP and they were a prominent [City 1] family. The Tribunal is satisfied that if they wanted money they would have extorted other family members, knowing that he and his parents were overseas. It is reasonable to assume that if they have not targeted his family members, they will also not target him, even if the Awami League has more power or it is closer to election time. He has claimed that the brother who is living in Bangladesh is not politically active but is a BNP supporter, however, the applicant himself has also not been politically active since 2010, although he attended rallies in 2013. Additionally, his parents and other brother have returned to Bangladesh, albeit for a short time, and suffered no harm on that occasion.

18. The applicant also claimed that he fears that if he attends rallies, he will be beaten by Awami League supporters, just for taking part. He said that he also fears that he will disappear, as had happened to a number of BNP supporters. As discussed earlier, the Tribunal is not satisfied that the applicant will attend political rallies if he returns to Bangladesh given his low level of engagement when he lived in Bangladesh and his lack of political activity in Australia.

19. In reaching the conclusion that it is not satisfied that the applicant would suffer serious harm from Awami League supporters for his political opinion or on the basis of perception of wealth, the Tribunal has considered a number of cases referenced by the applicant’s representative. This included a Refugee Review Tribunal matter, 0901219 [2009] RRTA 410 (7 May 2009), in which the Member stated in regard to the facts in that case, ‘all the reports about political violence since the election point to a considerably increased risk of serious harm to individuals with the applicant's political profile.’ In that matter, the Refugee Review Tribunal focused on the applicant’s political profile and found that the applicant had a ‘longstanding political profile’, both in Bangladesh and Australia. In the matter before this Tribunal, the Tribunal has found that the applicant had a very low political profile and has not engaged in political activities while residing in Australia. The case was dated 2009 so circumstances were different. The representative also referred to 1415411 AAT-MRD [3 November 2015]. In that case, decided in 2015, the applicant was a religious scholar of Deobandi Islam, and a spiritual leader of Jamaat-e-Islami. The case can be distinguished from the matter before this Tribunal, as the Tribunal, differently constituted, was satisfied that the applicant in that case would be viewed as a religious leader and therefore accepted that he faced a real risk of significant harm.

1. The representative also referred to 1411515 [2015] AAT-MRD [8 September 2015].  In that case the Tribunal accepted that the applicant was involved in political activities promoting the Chhatra Shibir and Jamaat-e-Islami and clashed with the Awami League on a number of occasions. The Tribunal, differently constituted, accepted that the applicant did not have a high profile but accepted that he would undertake political activities if he returned, to a high level, which would raise his profile and attract the attention of the Awami League. This can be distinguished from the matter before this Tribunal, as this Tribunal has not accepted that the applicant would undertake political activities if he returned.

2. The representative also referred to 1413033 AAT-MRD [10 December 2015]. In that case, the applicant was able to give detailed and cogent answers about his involvement with the BNP, and he had a detailed knowledge of the BNP. The Tribunal accepted that he was an active supporter of the BNP and had remained interested and involved in Australia in BNP Australia. The case can be distinguished from this one, as in that case the Tribunal, differently constituted, accepted that the applicant was passionate about politics and would get involved if he returned to Bangladesh.

   Does the real chance of persecution relate to all areas of the receiving country?

3. Under s 5J(1)(c) of the Act, a real chance of persecution must relate to all areas of the relevant receiving country. The applicant has submitted that ‘nowhere is safe’ and he could not live a normal life by moving to a different area, suggesting his brother has moved and is not safe. He told the Tribunal that the Awami League ‘has a network’ and could find him. Asked if he could move to a different town altogether, he said that no place is safe for BNP supporters in Bangladesh. He submitted that when people are protesting for a fair election he would join as that is the way he has been brought up, and the Awami League would find him. He said that they know his face and would find him. In submissions from the representative, it was argued that the Awami League holds influence and power throughout Bangladesh.

4. The Tribunal has considered earlier in this decision whether there is a real chance of persecution in the area of the receiving country in which the applicant will return or be returned[64], likely to be [City 1] or Chittagong as he lived in these places previously. As set out above, the Tribunal is not satisfied that there is a real chance of persecution in [District 1] or Chittagong.

   [64] See CSO15 v MIBP (2018) 260 FCR 134 at [42]

5. If the Tribunal were wrong on this point and there was a real chance of persecution from [Mr D] or Awami League supporters in [City 1], the Tribunal is not satisfied that there is a real chance of persecution in other regions.  The Tribunal is satisfied the risk, if any, is localised to [District 1]. The Explanatory Memorandum to the Bill, which introduced s 5J of the Act, states that when determining whether a person can relocate to another area of the country where they do not have a real chance of persecution, a decision-maker should take into account whether the person can safely and legally access the area.[65] 

   [65] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p.171 at [1182]

6. Although the reference in s 5J(1)(c) to all areas of a receiving country is not qualified by a criterion of ‘reasonableness’, it has been held by the Full Federal Court in FCS17 v MHA to mean all areas ‘where there is safe human habitation and to which safe access is lawfully possible’.[66] The majority of the Court held that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’.[67]

   [66] FCS17 v MHA [2020] FCAFC 68 per White and Colvin JJ at [81]

   [67] FCS17 v MHA [2020] FCAFC 68 per White and Colvin JJ at [80]. Beyond referring to the absurdity and unreasonableness of interpreting the words ‘all areas’ to include geographical areas such as the middle of a scorching and inhospitable desert or upon a frozen mountain top (at [18]), Allsop CJ did not provide other examples of what may constitute ‘uninhabitable or inhospitable’, however his Honour expressed general agreement with the reasons of White and Colvin JJ: at [1]

7. The Tribunal is satisfied that the applicant could safely and legally access other areas such as Dhaka where his brother lives, as the country is highly homogenous with 98 percent of people ethnically and linguistically Bengali, and Sunni Muslims making up 90 percent of the population.[68] The Tribunal is not satisfied that his brother is in hiding and there is no evidence before the Tribunal that he or other relatives have been harmed. The Tribunal is also not satisfied that the applicant would partake in rallies in other areas and draw attention to himself in this manner, given his low level of political involvement in the past in Bangladesh, and the fact that he has not participated in political activities in Australia.

   [68] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Bangladesh’, 22 August 2019

8. The Tribunal is not satisfied therefore that persecution, if any, relates to all areas of the receiving country.

   Summary of findings – refugee criterion

9. The Tribunal has considered the applicant’s claims, individually and cumulatively. It is not satisfied that he has a well-founded fear of persecution for one of the reasons enumerated in s 5J(1), now or in the reasonably foreseeable future, if he returns to Bangladesh. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   Does the applicant meet the complementary protection criterion?

10. If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criterion’).

11. ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

12. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. For reasons set out earlier in this decision, the Tribunal is not satisfied that there is a real chance of serious harm from authorities or the Awami League supporters. For the same reasons, on the basis of the decision in MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation.

    Summary of findings – complementary protection

13. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk of significant harm.

    CONCLUDING PARAGRAPHS

14. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

15. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

16. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).

    DECISION

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

    Jane Marquard
    Member

    
    

    ATTACHMENT A  -  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.

    …

    ATTACHMENT B

    LIST OF DOCUMENTS

    Letter from the [Office Bearer 2] of the Bangladesh Islami Chhatra Shibir (and translation) dated [in] August 2016

    Letter from the President of the Bangladesh [Group 1], [District 1] dated 2 August 2016

    [Occupation 2] Course completion certificate from [Institute 2] dated 14 October 2004

    Certificate of Enrolment as an [Occupation 2] from the Bangladesh [Occupation 2 governing body] dated 30 June 2004

    Admission papers from [a named] Hospital, [City 1] dated [in] February 2014

    Passport pages

    Two photographs purporting to be of injuries suffered by the applicant