1621951 (Refugee)

1621951 (Refugee) [2022] AATA 2147 (27 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)
CASE NUMBER:  1621951
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Deputy President J.L Redfern PSM
DATE:27 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 27 June 2022 at 2:20pm
CATCHWORDS
REFUGEE – Protection (Class XA) (Subclass 866) visa – Bangladesh – application for protection on basis of the refugee and complementary protection criterion – Bangladesh Nationalist Party (BNP) supporter – involvement with BNP Australia – political opinion based on profile as a supporter of the BNP – political activities outside Bangladesh including academic writing and social media profile – claims applicant will be targeted by the Awami League, supporters of Awami League and government officials – whether the applicant faces a real chance of serious harm on return to Bangladesh – whether conduct in Australia should be disregarded – applicant found to be a refugee – decision under review remitted with directions.
LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 36, 36(2)(a), 36(2A), 36(2B), 5H(1)(a), 5J(1), 5J(1)(a), 5J(1)(b), 5J(3), 5J(6), 499
Migration Regulations 1994 (Cth), Schedule 2
CASES

Chan Yee Kin and Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
SZOZT v Minister for Immigration and Citizenship [2011] FCA 1245
SECONDARY MATERIALS

Country information request report from the Country of Origin Information Services Section of the Department entitled Bangladesh – country update, dated 22 November 2021
Department of Home Affairs, Procedures Advice Manual 3 ‘Refugee and Humanitarian – Complementary Protection Guidelines’ and Procedures Advice Manual 3 ‘Refugee and Humanitarian – Refugee Law Guidelines’
Department of Foreign Affairs and Trade Country Information Report on Bangladesh, 22 August 2019
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 – Consideration of Protection Visa applications, 24 June 2019
STATEMENT OF DECISION AND REASONS
INTRODUCTION

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 December 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant was born in [year] in [place], Bangladesh and claims to be a citizen of Bangladesh. The applicant arrived in Australia [in] August 2015 as the holder of a temporary work and holiday visa and applied for a protection visa on 21 July 2016.
The applicant claims to fear harm because he is a supporter of the Bangladesh National Party (BNP) and because he is a social activist and has written a number of published academic articles, including a widely published research paper on [subject]. He claims that he has a profile through his blogging and online media articles that have been published widely which he fears will attract the attention of Islamic extremists. He also claims that he has a high-profile role in the BNP and the Awami League-led government will persecute him on his return to Bangladesh.
The delegate refused to grant the visa on the basis that she did not accept the applicant had a political profile as an academic writer and blogger, nor did she accept that the written material had been viewed by a large audience or that the applicant’s writing about [subject] had attracted any negative attention. The delegate did not accept that the applicant had faced harm due to his social work or his involvement with the Jatiyatabadi Chhatra Dal (JCD)[1], the student wing of the BNP, and was therefore not satisfied that Australia’s obligations to provide protection were engaged under the refugee or complementary protection criteria set out in the Act.
[1] Spelling used by Department of Foreign Affairs and Trade (DFAT) in the Bangladesh country report dated 22 August 2019. Referred to by the applicant as Jatiotabadi Chatra Dal. For consistency, the reasons use the spelling used by DFAT.
After reviewing the material in the Department file and provided by the applicant to the Tribunal, I scheduled a directions hearing with the applicant and his lawyer to discuss the material that should be provided prior to any scheduled hearing. This information was provided by 10 December 2021. The matter was listed for an in-person hearing on 17 December 2021 but could not proceed because of issues relating to the pandemic. There were further delays in February 2022, again relating to issues outside the Tribunal’s control, and the matter was listed for hearing on 14 March 2022. At this hearing, it was discovered that the interpreter was familiar with the applicant through the applicant’s work with BNP Australia. The matter was again adjourned but certain aspects of the applicant’s claims were clarified. Following this hearing, the applicant, through his lawyer, provided additional evidence and submissions, including submissions provided to the delegate which were not provided with the Department file. This additional information related to the activities of the applicant and his involvement with the BNP since arriving in Australia. The information was provided in a form that complied with the COVID-19 Practice Direction[2] and was directed to the issues identified as being contentious. This was of considerable assistance.
[2] COVID-19 special measures practice direction - Migration & Refugee updated 2 March 2021.
The matter was listed for hearing on 29 April 2022. The applicant, who was represented by lawyer, Mr Mahalingam Sutharshan, appeared before me to give evidence. He also presented arguments and written submissions through his lawyer. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. Further evidence was provided after the hearing at my request. This evidence was not controversial, and it was unnecessary to recall the applicant to give further evidence in relation to the matters raised.
For the reasons that follow, I am satisfied about the applicant’s claims for protection and remit the decision under review for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.
CRITERIA FOR A PROTECTION VISA: STATUTORY FRAMEWORK
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. The applicant does not make a claim as a member of a family unit and, as such, s 36(2)(b) and (c) do not fall for consideration.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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–5LA, which are extracted in the attachment to this decision.
For instance, a person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5J(3) provides that a person does not have a well-founded fear of persecution if he or she could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country. However, this does not apply to a modification that would require an applicant to alter or conceal his or her political beliefs. If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). The persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c). Section 5J(5) provides examples of serious harm.
A person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. However, s 5J(6) provides that certain conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted. Given that the applicant’s conduct in activities since arriving in Australia in 2015 is the subject of many of his claims, this is a relevant consideration in this case.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84[3], made under s 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department – Procedures Advice Manual 3 ‘Refugee and Humanitarian – Complementary Protection Guidelines’ Procedures Advice Manual 3 ‘Refugee and Humanitarian – Refugee Law Guidelines’. The Tribunal must also take into account any country information 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.
[3] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019.
The most recent report from DFAT is the Country Information Report for Bangladesh dated 22 August 2019. I have considered this report, together with other relevant country information. I have also considered the Department guidelines to the extent that these are relevant to the consideration of the decision under review. Generally, these guidelines contain an analysis of the law, examples of how the law has been applied in various jurisdictions and guidelines to decision-makers on how the law is to be applied. There is little by way of policy and the guidelines were of limited assistance in the circumstances of this case. My analysis of the country information and any relevant guidelines are set out later in these reasons.
OUTLINE OF CLAIMS AND EVIDENCE
In support of his claims, the applicant provided to the Department a statutory declaration made on 24 October 2016 and a written submission dated 24 October 2016 from his lawyers, together with references to country information and copies of articles and blogs said to have been published by the applicant. He also provided a number of academic articles published by him, photographs and letters of support or short statements from the [position] of [place] Development Council, [individual A], dated 2 August 2015 stating that the applicant was an active member of the Social Organisation SCD and a participant in various social development activities implemented by the organisation; [position] of Jubodal Australia, [Individual B], dated 24 October 2016, stating that the applicant was an active member of Jubodal Australia who participated in all programs and meetings in the organisation and [position] of Bangladesh Jatiyatabadi Chhatra Dal, [place], [individual C] (undated), stating that the applicant was an active member and well-organised student politician.
After his application was lodged with the Tribunal, the applicant provided:
a)Material provided by his lawyers through numerous emails to the Tribunal between November 2018 and March 2021 attaching photographs said to evidence political activities undertaken by the applicant in Australia, articles written and published by the applicant, records of BNP-related committees and virtual meetings in respect of which the applicant was said to be involved and short statements and letters of support from [individual D], [position] for International Affairs, National Executive Committee BNP (dated 29 July 2019) stating amongst other things that the applicant was an active member of BNP Australia; [individual E], [position] Bangladesh Jatiyatabadi Samajik Sangskritik Sangstha (JASAS) (undated), stating that the applicant was a member of the BNP Australia as well as [position] of JASAS and [individual F], [position], France BNP (undated) stating that the applicant is his son-in-law and that he was undertaking political activities with [individual G] who was a former [position] of the BNP who, in 2012 was “forcibly disappeared” by law enforcement agencies.
b)A statement dated 10 December 2021.
c)A letter from [individual H], [position], Foreign Relations Committee, BNP Central and Secretary Golden Jubilee BNP Australia (undated) and further letter dated 4 May 2022.
d)A letter from [individual I] dated 4 December 2021 (which is in identical terms as the letter dated 29 July 2019 earlier provided to the Tribunal).
e)Documents said to relate to the political profile of his brother, [name], which included a polling agent identity card for the National Parliamentary Election 2018 identifying [individual J] as being a polling agent, a document dated 15 December 2018 stating that [individual K] was selected as a candidate for BNP seat number [place]-1, including [individual L] as one of the Committee members, and a document dated 15 December 2018 listing [individual M] as the chief coordinator for the election coordination committee for Ward numbers 16, 17 and 18 of the [place] City Corporation.
f)Documents said to evidence the applicant’s various political positions within the BNP.
g)Copy of a Facebook page of [individual N], claimed to be an Awami League supporter, together with an English translation.
h)Written submissions from the applicant’s lawyers dated 10 December 2021.
i)Country information and media report attachments including the Annual Human Rights Report 2019, Bangladesh, prepared by ODHIKAR, media reports about human rights violations, extrajudicial killings, action against activists and an article said to relate to persecution of BNP members and activists, extracts of reports from the Asian Human Rights Commission, extracts of reports from Human Rights Watch in its annual report entitled 2021 Bangladesh and extracts from the 2020 Country Report on Human Rights Practices: Bangladesh from the US Department of State (dated 30 March 2021).
j)A bundle of documents comprising articles and blogs said to have been published by the applicant on the internet and through social media.
The following is an outline of the most relevant aspects of the applicant’s evidence given by him at the hearing and contained in his statutory declaration and statements provided to the Department and the Tribunal. The evidence given by the applicant to the delegate during the Department interview is said to be recorded in the decision record of the delegate dated 19 December 2016. This evidence is consistent with the evidence given by the applicant at the hearing, although it should be noted that the applicant provided further updated evidence about his activities since arriving in Australia, his claimed continuing role with the BNP and his claimed profile as a result of articles, social media and blogs written and published by him in his evidence at the hearing and in his statement of December 2021.
The applicant’s parents are still alive and reside in the same house they have lived in for many years in [place]. He has two older brothers and a younger brother. He is the third born son in the family. His oldest brother lives with his wife’s parents, also in [place], and his younger brother lives with their aunt in [place]. His other older brother, [name], is in hiding. The applicant does not know where he is living.
According to the applicant, [name] became involved in the student wing of the BNP in about 2006. It is claimed that [name] was harassed because of his involvement with the BNP and because of this, his brother decided to move to Malaysia in 2014. His brother lived and studied in Malaysia from that time but returned to Bangladesh at the end of 2017 to assist the BNP in the local and national elections that took place during 2018.
The applicant completed his school studies in 2007 and in 2008, he joined the [University] in Bangladesh and completed his Bachelor of Business Administration in 2011. He completed his Master of Business Administration in 2012 and worked as a volunteer with the [place] Development Council. According to the applicant, he was engaged in a number of social activities and was involved in, and undertook research on, social issues relating to matters such as blood donations, anti-corruption and local issues about problems created by drainage and road hazards. The applicant’s family were strong supporters of the BNP and he became involved in the JCD in about 2008. He was actively involved in supporting the election campaign of Saifur Rahman, a BNP candidate, in 2008. Saifur Rahman was unsuccessful and his opponent, Mr Abul Maal Abdul Muhith, was elected. Muhith was re-elected in 2014 and served as the Finance Minister. As part of the 2008 campaign, the applicant stated that he was involved in door-to-door campaigning. He assisted BNP leaders to organise meetings, he distributed pamphlets and put up posters for Saifur Rahman. The applicant said that he spent about two months doing this over the election period. He said that he spent almost six hours each day undertaking these activities over a two-month period. His evidence about this work leading up to the 2008 election was detailed and credible.

The applicant also provided to the Department considerable details about his work in assisting the BNP in the 2008 election. In contrast, there was little information provided in relation to any political activities undertaken by the applicant from 2008 to the time he left Bangladesh in August 2015. This is reflected in the decision of the delegate. The position is similar in relation to the evidence provided to the Tribunal.
In his statement of December 2021, the applicant provided the following details at paragraph 5 of his statement:
In relation to my political activities in Bangladesh I started my political journey with Bangladesh Jatiotabadi Chatra Dal JCD in early 2008. During that time, I attended the following programs apart from political campaigns and door-to-door activities during elections. I do not have evidence of my attendance because it was a long time ago. However, based on my recollections, I provide the following information relating to my political activities in Bangladesh.
What then followed was a number of dot points containing references to dates and particular anniversaries or celebrations, with the exception of two entries, which related to the applicant’s work for the BNP in the 2008 elections. The applicant was questioned about this at the hearing, and he said that he attended each of these celebrations and functions, some of which related to national Bangladeshi celebrations or anniversaries, others which related to the BNP. The applicant was asked whether he did any more than this during this period and he was not able to point to any particular activity. He said that the BNP did not participate in the 2014 election and was gearing up to contest elections at a later time.
In his statutory declaration of 2016, the applicant stated that due to his political involvement and engagement, he felt harassment and intimidation particularly after the 2014 election. In his statement of December 2021, the applicant stated that some of his political colleagues who were associated with the JCD were threatened by BAL and BCL. He did not provide an explanation for these acronyms, but I take this to mean the Bangladesh Awami League and the Bangladesh Chhatra League (the Awami League’s student wing). The applicant also referred to a number of BNP members who he claimed had criminal cases filed against them, one of whom was said to be a friend of his, [individual O], who was the [position] of the JCD Metropolitan [place].
According to the applicant, he travelled to Australia on a visitor visa and arrived in Australia in August 2015. He stated that he became involved in political activities with BNP Australia from this time. Further detail was provided in the applicant’s statement of December 2021. He served as [position] of the Jatiyatabadi Sechasebak Dal (the volunteer wing of the BNP) and was appointed as a [position] of BNP Australia in July 2018. He became the [position] of JASAS Australia Central Committee in December 2019 and became the [position] of the Zia Shishu Kishore Mela, the adolescent wing of BNP Central.[4] The applicant stated that he was invited to attend meetings by the BNP Golden Jubilee Committee. The applicant provided extensive evidence about the various meetings that he had attended or spoke at while living in Australia as part of the various committees of which he was a member. These meetings were both local meetings held in Australia and virtual meetings broadcast overseas. It is apparent from the evidence provided by the applicant that he has been extensively involved in BNP committee meetings, celebrations, protests and BNP-related activities while living in Australia, particularly from about 2018. For instance, [in] 2020 the applicant was asked to conduct a prayer for Begum Khaleda Zia during a Zoom meeting arranged by the BNP Golden Jubilee Committee broadcast in Australia, Bangladesh and in other countries where Bangladeshi diaspora were located and participating. Begum Khaleda Zia is a former Prime Minister of Bangladesh and is the current Chairperson and leader of the BNP, which was established by her husband, Ziaur Rahman, in 1978. Zia was jailed in 2018 but released on humanitarian grounds in 2020.
[4] The JASAS is also known as the cultural wing of the BNP.
The applicant stated that [name] returned to Bangladesh in 2017 to assist in organising the campaign for the election of BNP members in the 2018 general election. He stated that he was asked by BNP officials to work with his brother and that he played an important role in communicating with various people in Bangladesh to assist in mobilising young BNP activists. The applicant also stated that on 27 December 2018 the police tried to arrest his brother, but he was able to escape. One of his friends, [name], was arrested. The applicant further stated that after the 2018 election, the Awami League started to harass the applicant’s brother and his family and that [name] was asked specific questions about him, such as how the applicant contributed to the BNP campaign during the election, when and whether the applicant was likely to return to Bangladesh and who else was helping the applicant in organising members for the election campaign.
The applicant stated that he is concerned he will be targeted by the Awami League, supporters of the Awami League or government officials in an Awami League-led government if he is returned to Bangladesh because of his activities in working with the BNP through BNP Australia and the various other BNP committees in which he participates. He believes that these activities are publicised outside Australia and would be known in Bangladesh. He is also concerned that his writings on social media and news reports and various articles have given him a prominent profile as a BNP supporter, academic and social activist. He refers to his article, the [article name] which he states has been widely published, and the various Internet news platforms that he publishes articles on, including [website] and [website]. Translated versions of articles published by the applicant on [website] and [website] were provided by the applicant.
The applicant, through his lawyer, provided a consolidated bundle of work said to be published by the applicant. It is apparent from this that the applicant has published no less than 30 articles, blogs or academic papers on various platforms since about 2012 (but mostly since 2018) about the BNP, the Awami League and broader academic articles or thought pieces such as [article names]. The latter two articles are academic papers that were published in 2015 in academic journals. Other articles published by the applicant relate to the BNP cause including, [article name],[5] [article name][6] and [article name].[7]
[5] [website link], 27 September 2018.
[6] [website link].
[7] [website link], 10 September 2018.
At the hearing, the applicant expanded on this written evidence in the following terms.
The applicant gave detailed evidence about his role in the 2018 elections in Bangladesh. He said that his brother was asked to return to Bangladesh by the BNP in 2017 to prepare for the 2018 elections. His father told him that the police raided his family home in October 2018 looking for [name]. The applicant also stated that the police enquired about him and whether and when he was proposing to return to Bangladesh. The applicant said that the police did not find his brother at that time and [name] left the family home and went into hiding to continue his activities in supporting the BNP at the election which was to take place on 30 December 2018. The applicant said that his friend [name] was arrested and when the police picked him up, he was interrogated about the team working for the election of BNP candidates. The applicant said that he knew about this because this conversation was related to [name], who then told him.
The applicant said that his role in the election was to coordinate with [name] to send members of the team to different locations. When asked why he was chosen to undertake this role, the applicant said that he was good at organising teams and it was his role to work with his brother, and the local leader who they were supporting, [named]. Part of the applicant’s role was to discuss strategy with [name] and he had regular conversations with his brother over the telephone about these matters. His brother was involved with the BNP on the ground, but the applicant was more involved at a strategic level. There were difficulties on election day and [name] eventually had to go into hiding. The applicant was told that there were many questions asked about him by Awami League officials because they knew that he had an active role from Australia. The applicant said that his father was also asked questions about him, such as when he was going to return to Bangladesh and how he was involved with his brother. The applicant believes that the Awami League was concerned about him because of his profile and his ability to organise and motivate others.
When the applicant was asked about what he had done between 2008 and 2014, he was not able to provide much detail other than the list of activities referred to in paragraph 5 of his statement of December 2021 which largely comprised a list of official BNP anniversaries or events. When asked why his involvement with the BNP did not appear to be very active in this period, the applicant said that after the 2014 elections there was widespread harassment of BNP supporters by Awami League officials. He was personally threatened by [name], who was the local leader with the Awami League at the time and is now a minister in the Awami League-led government. This happened at the beginning of 2015. According to the applicant, [name] threatened the applicant that he should stop organising BNP activities otherwise they would take ‘necessary action’. The applicant said that he simply responded that he believed in the BNP ideology. He said that there were no further threats to him after this and it was difficult to go to the police in any event. The applicant said that he was looking for a safe place by August 2015 and decided to travel to Australia to see whether conditions would improve in his home country Bangladesh while he was overseas. By July 2016 he decided that there would be little chance of conditions improving in Bangladesh and he decided to make his protection application. When asked whether he was aware of any recent threats made about him, he said that one of his friends was arrested in October 2019 and was interrogated by the police. According to the applicant, his friend was asked questions about him and about [name].
The applicant also said that he received a threatening message on Facebook from [name] who the applicant claims is the [position] of the Bangladesh Chhatra League.
The applicant said that he was concerned that he would be persecuted on his return to Bangladesh because of his profile. He was young, educated and articulate and he believed that the Awami League would feel threatened by his presence in Bangladesh. He also is concerned about the views he has expressed through his academic writing and his social activism in relation to the working class, the role of women and freedom of the press.
COUNTRY INFORMATION
The most recent country information report published by DFAT is now over two years old and, as such, its utility is limited because my assessment about whether protection obligations are owed must be made at the time of my decision. Any assessment must be made into the foreseeable future. However, the DFAT report provides important insights in relation to past events and prevailing conditions in Bangladesh as of August 2019. More recent country information is contained in a report from the Country of Origin Information Services Section (COISS) of the Department which is available to all decision-makers in the Department and the members of the Tribunal. This report is dated 22 November 2021 and is titled Bangladesh – country update.
As noted by DFAT, most of the borders of Bangladesh were established in 1947 when the United Kingdom partitioned the territories of British India into the independent states of India and Pakistan. Bangladesh has experienced significant political, social and economic turmoil since independence.[8] The following extract from the DFAT report is a succinct summary of the political environment in Bangladesh and provides an important background to the applicant’s claims:
2.3 …Elections between 1991 and 2006 saw power alternating between the AL and the rival Bangladesh Nationalist Party (BNP). Bangladesh briefly returned to military rule in 2007 following violent pre -election protests, but the military returned power to the AL after its election victory in 2008. The AL remains in power, having comprehensively won the last two national elections in 2014 and 2018. Both elections were marred by violence, boycotts, and allegations of fraud (See Political System).
2.4 Bangladesh has achieved impressive levels of economic growth since the 1990s, lifting large numbers of Bangladeshis out of poverty. The country continues to face numerous challenges, however, including growing authoritarianism, extreme political polarisation, an escalation in tensions between Islamists and secularists, marginalisation of religious and ethnic minorities, and increasingly politicised national institutions.[9]
[8] DFAT report [2.1] and [2.3].
[9] DFAT report [2.3]–[2.4].
According to DFAT, after noting various legislative provisions relating to a framework for fighting corruption:
Despite these constitutional protections, all major ranking institutions routinely rate Bangladesh as a highly corrupt country – Transparency International, for example, ranked Bangladesh 149th out of 180 countries in its 2018 Corruption Perceptions Index (in which 180 is the most corrupt). Corruption is pervasive at all levels of society, and is endemic in the judicial system, police, and public services (see relevant sections). Low salaries for employees in these sectors frequently lead to these employees demanding facilitation payments to supplement their income. Anti-corruption legislation is inadequately enforced, and prosecutions for corruption are rare.
DFAT also reports:
5.39    The increasing use of biometric data collection has limited opportunities for fraud because of the greater capacity for authorities to check suspicious identity documents. DFAT assesses, however, that the use of fraudulent documents and fraudulently obtained genuine documents remains widespread. This risk is exacerbated given that civil documentation is generally held by local issuing offices in paper-based files without networked systems.
5.40    It is common for Bangladeshis to acquire documents through an agent, or ‘middleman’. This individual will make an application for documents on behalf of the person that has requested them, a process which may be subject to fraud. It is therefore possible that the person seeking the document does not know that their documents are fraudulent. The risk involved with the use of middlemen may be unavoidable, as some sources report that it is not possible to get documents without the use of such an agent.
…
5.43    Political party documents may be subject to fraud, as they do not contain the security features of other documents. The patronage-based nature of political participation means that an analysis of the person’s political relationships may be more useful in determining their membership of a party. Obtaining such documents fraudulently may be facilitated through patronage networks, in which case it is probable that the bearer is a member of the party.[10]
[10] Refer DFAT report Prevalence of Fraud at [5.39]–[5.44].
While the applicant has not submitted any court documents or made claims about false charges being made against him, he has provided letters of support from persons said to be officials of the BNP. As such, it is important to have regard to this country information when considering the veracity of letters and statements said to be provided by third parties from Bangladesh. My assessment of this evidence is set out below.
The claims made by the applicant focus on his political affiliation with the BNP and his political opinion, both actual or imputed. It is therefore apt to outline some of the key events and drivers that have taken place in Bangladesh around the time the applicant claims to have commenced and been involved in his political activism.
According to DFAT:
3.61    Bangladesh has long had a two-party political system dominated by the Awami League (AL) and the Bangladesh Nationalist Party (BNP). The AL has traditionally been broadly secular, liberal, rural-based and broadly in favour of relations with India, while the BNP has traditionally been more accommodating of political Islam, conservative, and urban-based. The parties do not necessarily strictly adhere to these policy platforms. In recent years, for example, the AL has worked to cultivate close ties with conservative Islamists.
3.62    The relationship between the two parties is characterised by a longstanding political and dynastic rivalry, which has increased over time. Both parties derive their legitimacy from their claim to be the true heirs of Bangladeshi nationalism: the AL led the independence movement before and during the 1971 civil war, while the BNP holds as its institutional basis the ideology of Bangladeshi nationalism. The rivalry between the two parties is also deeply personal at the highest levels: the AL’s leader, Sheikh Hasina, is the daughter of the ‘Father of the Nation’ Sheikh Mujibur Rahman and the BNP’s leader, Khaleda Zia, is the widow of the party’s founder, former General and President Ziaur Rahman. Sheikh Mujibur Rahman and Ziaur Rahman were both assassinated in office, and their respective parties view them as martyrs.
3.63    Politics in Bangladesh generally centres on political personalities, and social, political and workplace connections, alongside or instead of broader party policies. Political patronage to particular figures is a motivating factor in voting, campaigning and party membership. Similarly, family alliances tend to be very important. Both of the major parties are organised into auxiliary organisations, for example student leagues or women’s leagues, sometimes based around particular professions, such as lawyers or doctors (see Political Auxiliary Organisations).[11]
[11] DFAT report [3.61]-[3.63].
The Awami League came to power in 2008 and according to DFAT, since this time it has “considerably restricted” the activities of opposition political parties, particularly the BNP and Jamaat-e-Islami (JI). These restrictions have included using police and other security forces to arrest thousands of opposition political party members and supporters, using police and other security forces to prevent opposition parties from holding meetings and demonstrations and pressuring opposition candidates to withdraw from local and municipal elections.[12]
[12] Ibid at [3.67].
DFAT summarises its opinion about the current political situation in Bangladesh in the most recent DFAT report as follows:
DFAT assesses that, under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges, and travel bans. Active members of opposition political parties and auxiliary organisations (see relevant sections) who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. This risk is elevated around times of heightened political tension, including elections. Those who are members of opposition political parties and auxiliary organisations but who do not engage in political activities and demonstrations face a lower risk of arrest, although this may vary according to location and timing.[13]
[13] Ibid at [3.70].

The BNP was founded in 1978 following the assassination of President Mujibur Rahman. According to DFAT, the BNP was established on a platform of Bangladeshi nationalism and Islamic identity.[14] While the BNP Standing Committee is the top decision-making body of the party, there are various committees at the district and upazila (local) level. According to DFAT, both the Awami League and BNP have large auxiliary organisations, including wings for students, volunteers, youth and professionals. DFAT notes that the Bangladesh Chhatra League (BCL) alone has 10 million members and that the sheer size of the auxiliary organisations means that, in practice, the central leadership of the relevant political party exercises “only limited amount of control over the activities”. The auxiliary organisations of both the Awami League and the BNP support the political party through fundraising and election-related activities, but they also play a major role in inter- and intra-party violence.[15] It is relevant to note as follows:
DFAT assesses as credible allegations that members of student wings are sometimes party activists rather than genuine students, and that auxiliary organisations engage in criminal activities on occasion, including violence and extortion. Student elections, like other elections, can turn violent and be characterised by inter-party and intra-party violence in a pattern similar to civic elections. The BCL has effectively controlled public university campuses since 2009, preventing members of other parties’ student wings from undertaking activities and even from sitting examinations. In rural areas, AL members and activists have reportedly extorted business owners affiliated with the BNP, threatening them with violence if they do not comply with demands for money.[16]
[14] Ibid at [3.77].
[15] DFAT report [3.89].
[16] Ibid [3.90].
DFAT reports that key BNP auxiliary organisations include, relevant to the claims made in this case, the Jatiyatabadi Chhatra Dal (student wing), the Jatiyatabadi Jubo Dal (youth wing) and the Jatiyatabadi Sechasebak Dal (volunteer wing).[17]
[17] Ibid [3.91].
DFAT notes that Bangladesh’s major political parties have a strong presence overseas, including in Australia. DFAT also reports that the BNP has a large diaspora network and engages strongly with expatriate Bangladeshi citizens and people of Bangladeshi descent living in other countries, including Australia.[18] The evidence provided by the applicant is consistent with this. Relevantly, the applicant provided evidence, including photographs, articles and minutes of meetings recording details of meetings and protests held by BNP Australia members or supporters. He also provided cogent evidence to the effect that he has held various positions in BNP Australia and various auxiliary BNP organisations, such as the Jatiyatabadi Sechasebak Dal, the JASAS and the JCD.
[18] Ibid [3.79].
DFAT also reports that BNP officials allege they have been subjected to “enforced disappearance” after raids on private homes and party offices and that there is violence perpetrated against BNP supporters by Awami League members which occurs with impunity. The BNP claims the charges against Prime Minister Khaleda Zia were politically motivated and that her treatment while in prison has been in breach of human rights.[19] Relevantly, DFAT reports:
DFAT assesses that allegations of violence against BNP figures are credible, and that high-profile figures are more likely to be targeted by charges that may be politically motivated. DFAT assesses that any BNP member who actively opposes the AL government may be targeted for criminal charges, especially if they are involved in violent protests.[20]
[19] Ibid [3.80]–[3.81].
[20] Ibid [3.82].
According to DFAT, Bangladesh is historically prone to high levels of politically motivated violence in the form of violent clashes between supporters of different factions of the same party, supporters of rival parties and between party supporters and law enforcement agencies. However, DFAT notes that intra-party violence has become far more common than inter-party violence, which has resulted from competition between rival Awami League factions, as opposed to violence against BNP supporters.[21] DFAT also reports, in referring to clashes arising from both intra- and inter-party rivalry (politically motivated violence, PMV), as follows:
3.109 …Fatalities and serious injuries often result from these clashes. PMV tends to peak during periods of heightened political unrest, including during elections, strikes and blockades.
3.110 The number of casualties resulting from PMV varies from year-to-year. In 2018, Odhikar reported that 120 people were killed and 7,051 injured in PMV-related incidents, compared with 77 deaths and 4,635 injuries in 2017 and 215 deaths and 9,053 injuries in 2016. The January 2014 national elections were the most violent in Bangladesh’s history, with months of PMV leaving hundreds dead and thousands injured across the country. As was the case in 2015, 2016, and 2018, local government and council elections in March 2019 continued to be marred by high levels of PMV. The period leading up to the December 2018 national elections was also marked with some violence, primarily of an inter-party nature, but PMV-related deaths and casualties were significantly down and the aftermath was relatively peaceful compared with the national elections held five years earlier.[22]
[21] Ibid [3.94].
[22] DFAT report [3.109]–[3.110].
While Article 38 of the Constitution guarantees citizens the right to form associations, all civil society organisations (CSOs) are required to register with the Ministry of Social Welfare. DFAT reports that CSOs advocating for labour rights and better working conditions, particularly in the garment industry, have reportedly faced increased harassment over the years, including through physical intimidation, arbitrary arrest and torture.[23]
[23] Ibid [3.97]–[3.101].
DFAT notes that while Article 39 of the Constitution guarantees the right of freedom of speech and expression subject to reasonable restrictions and that Bangladesh has a wide variety of traditional and electronic media, it also notes that media outlets tend to align themselves with one or another of the main political factions and in its 2019 Freedom in the World report, Freedom House regarded Bangladesh’s media as not free.[24] DFAT also notes that there have been numerous instances in which traditional and social media have been blocked and that 54 news websites in the weeks leading up to the December 2018 election were blocked. DFAT reports that between 2013 and 2016 at least 10 bloggers were murdered in apparent retaliation for political activism and that police have told bloggers that protection is not available or guaranteed and that most bloggers who still seek to comment on sensitive issues in Bangladesh now do so from outside the country.[25] According to DFAT, a number of journalists attempting to cover the December 2018 election suffered physical attacks and that the threat of legal action and/or physical attack has led many Bangladeshi journalists to practise self-censorship in their reporting.[26]
[24] Ibid [3.102]–[3.103].
[25] Ibid [3.113].
[26] Ibid [3.114]–[3.115].
DFAT reports on media and freedom of speech as follows:
DFAT assesses that journalists attempting to report on the military, judiciary and religious affairs, or whose reporting is critical of the government, face a high risk of both official and societal discrimination. They are likely to feel pressured to self-censor their reporting to avoid the risk of legal sanction, arrest, threats, harassment and physical violence. DFAT assesses that bloggers who attempt to comment on sensitive issues from within the country also face a high risk of both official and societal discrimination, which may include legal sanction and/or violence.[27]
[27] Ibid [3.116].
According to DFAT, political interference and corruption operate to constrain the rule of law in Bangladesh, and it assesses victims of abuse have limited avenues for effective recourse in cases where the perpetrator belongs to a state agency.[28] DFAT also reports:
Human rights organisations have expressed concern over persistent use of excessive force by police, and by the general culture of impunity surrounding police behaviour. Investigations into police misconduct are internal, and generally lack either transparency or credibility. DFAT assesses that most Bangladeshis, and particularly those with connections to opposition parties, would seek to avoid engagement with the police.
[28] Ibid [5.1].
On the issue of returning failed asylum seekers, DFAT assesses that they are “unlikely to face adverse attention”, although authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh.[29]
[29] DFAT report [5.30].
According to the recent COISS report, there is evidence of targeting of the BNP with Bangladesh Pratidin, a local Bangla newspaper, reporting in October 2021 that approximately 70,000 cases had been filed against 3.5 million BNP activists from grassroots members to leaders between 2009 and June 2021.[30] The BNP’s current political activities include holding protests but COISS noted that the BNP decided in February 2021 not to contest future local government elections and had not made any statements in relation to its position regarding future national elections. COISS also refers to the BTI 2020 Country Report: Bangladesh, which observed that the BNP support base had eroded because the party had been in the political wilderness for so long and it was experiencing a leadership vacuum.[31]
[30] Country information request report from the Country of Origin Information Services Section of the Department entitled Bangladesh – country update, dated 22 November 2021.
[31] The Bertelsmann Transformation Index (BTI) is a measure of the development status and governance of political and economic transformation processes in developing and transition countries around the world, published by the Bertelsmann Stiftung (an independent foundation based in Germany).
COISS notes that the Bangladeshi government has a strong interest in social media and other online activity in Bangladesh, including monitoring social media overseas, referring to a 2018 article in Prothom Alo which reported that at least 12 Bangladeshi expatriates including from Australia had been identified for allegedly spreading rumours and offensive information via social media prior to the 2018 parliamentary elections and that the Criminal Investigation Department of police said they would be arrested when they returned to the country.[32]
[32] viewed 10 November 2021 by COISS.
The applicant provided further information and submissions relating to country information, being international reports about human rights issues in Bangladesh from the United States Department of State (published 2019 and 2020), the Asian Human Rights Commission (2020 and 2021), Human Rights Watch (2021), Freedom House (2021), Amnesty International (2021) and reports from news agencies such as the Daily Star, the Observer Bangladesh and New Age and Al Jazeera. These reports were generally consistent with the most recent DFAT report and the information referred to in the COISS report.
My findings in relation to Bangladesh country information, as it is relevant to the applicant’s claims, are summarised below.
The BNP, which is the main opposition party to the ruling Awami League, has had its political influence eroded over the years, particularly following its decision to boycott the 2014 elections and its poor showing in the 2018 elections. There is evidence that the BNP has been targeted by Awami League supporters and the government and by security agencies over the past decade through sustained arrests, court cases, alleged intimidation of security agencies and the challenge of campaigning without an active figurehead. Under the current Awami League government, senior members of opposition parties, particularly the BNP, face a high risk of politically motivated arrests and charges. Active members of opposition political parties and auxiliary organisations who participate in demonstrations or criticism of the government face a high risk of arrest and physical violence. In 2019 DFAT assessed, and there is no evidence that the position has changed, that any BNP member who actively opposes the Awami League government may be targeted.
Political violence in Bangladesh has continued after the 2018 elections and there is evidence that authorities may take an interest in high-profile individuals, including expatriates, who engage in political activities outside Bangladesh, on their return. Media, including social media, in Bangladesh is not free and there is evidence that it is being monitored both inside and outside Bangladesh. There is evidence that those who support social justice issues within Bangladesh face increasing harassment. There is also evidence of corruption and document fraud in Bangladesh such that the underlying credibility of documents, including documents that may be provided in support of claims for protection, such as evidence of criminal charges, may not be reliable and should therefore be approached with caution.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion and, more particularly, whether I accept the applicant’s claims that he fears persecution from Awami League supporters, the Awami League government and security agencies associated with the government. The question is not whether I accept the applicant’s subjective fears, which I do, but rather whether his fears are well-founded. The applicant claims that his fears are well founded based on his profile as a BNP supporter and as a person of influence, and more generally, because his political views and support for particular social issues would be known by Awami League supporters and the Awami league led government. He has a public profile through his publications.
Accordingly, the determinative issue is whether I am satisfied that the applicant has a well-founded fear of persecution, which has a refugee nexus, claimed to be his political opinion. This turns on the question of whether I am satisfied about the applicant’s claimed profile. This is a question of fact.
I accept the credibility of the applicant’s claims and have concluded that the matter should be remitted for reconsideration. My findings and consideration of the claims and evidence follow.
I find the applicant to be a credible witness. He provided extensive documentary evidence corroborating his claims, including a lengthy statement, copies of articles written and published by him and records of BNP meetings attended, together with photographs and screenshots of Zoom meetings evidently attended by him and by others. He was able to give a detailed account of events that he claimed had taken place in the past and more recently around the 2018 national elections in Bangladesh. Those accounts were consistent with the available country information.
The applicant also provided letters of support from persons said to be officeholders of the BNP. These witnesses were available to give evidence but this was unnecessary as the statements were consistent with the evidence of the applicant and with other documentary evidence provided by him, such as minutes of meetings and records of Committee membership.
The applicant did not embellish his claims when giving oral evidence and was able to explain what appeared to be inconsistencies or gaps in his written evidence. His evidence, which was given over an extended period, was both spontaneous and plausible.
I accept that the applicant’s family are supporters of the BNP. I also accept that the applicant’s brother, [name], was involved with the BNP and, in particular, had a role in the 2018 elections in Bangladesh. This is based on the evidence of the applicant and is corroborated by documents provided by him about his brother’s role on the polling booths. This evidence is also corroborated by the available country information about the activities of the Awami League government in suppressing active opposition by the BNP leading up to and after the 2018 elections.
I accept that the applicant is an academic and active writer and that he publishes on a broad range of topics, including in relation to Bangladeshi politics. I also accept, based on the articles provided by him, that he is and has been from at least 2018 very active in his publications. The articles published are both academic and political in nature.
I accept that the applicant was involved in student wing of the BNP when he lived in Bangladesh and that he was active in assisting a BNP candidate in the 2008 elections. His political activities in Bangladesh from 2008 to the time he arrived in Australia in August 2015 are less clear, although I accept that he worked in social and community projects during this time while he was completing his studies. I accept that when the applicant travelled to Australia in 2015, he did not intend to make an application for protection and hoped that things would improve for the BNP in Bangladesh but later became concerned and decided to make his application in July 2016. As such, I do not draw any negative inferences about the applicant’s delay in making the application for protection.
I accept the applicant’s evidence about his role in BNP Australia and various BNP auxiliary organisations while living in Australia. I also accept that the applicant has had an active role with the BNP while in Australia and that he assisted [name] in supporting the BNP in the 2018 national election. I accept that the applicant has a profile in Australia as a BNP supporter with the Bangladeshi diaspora, also evidenced by the need for recusal of the original Bengali interpreter at the second hearing. Given the applicant’s widespread online publication activities, I accept that it is possible the applicant’s profile extends beyond Australia into Bangladesh. It is possible that the applicant has come to the attention of government security agencies who monitor Bangladeshi citizens and expatriates who make negative comments about the Awami League government and social issues considered to be inconsistent with the government policy. While there is country information to the effect that the power of the BNP has significantly eroded over the past 10 years and since the 2018 elections, there is no suggestion that the Awami League government has shifted its focus away from quelling opposition from other political parties, including the BNP. As such, I accept that there is evidence that if a person such as the applicant returned to Bangladesh, it is possible that he would be targeted by authorities or Awami League supporters.
Based on country information, I accept that effective state protection would not be available to the applicant if he is targeted by government agencies or supporters of the Awami League on his return.
Having regard to these findings, I am satisfied that if the applicant returns to Bangladesh, he faces a real chance of persecution for reasons of his political opinion based on his profile as a supporter of the BNP and his social activism, and that this relates to all areas of Bangladesh. As already noted, a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. Given my findings about the applicant’s profile and the prevailing conditions in Bangladesh at this time, I accept that the applicant’s fear of persecution has an objective basis, and his fear is not remote, insubstantial or far-fetched. I also accept that the reason for the feared persecution, based on the applicant’s political beliefs, would be an essential and significant reason for the persecution that would involve serious harm and systemic and discriminatory conduct, as required under s 5J(4).

Given the applicant has increased his political activism in the years since he has been in Australia, questions arise about whether his fear, which is based on his current profile, is not well founded or should be taken not to be well founded. Relevantly, the issues are whether the applicant could, or should, take reasonable steps to modify his behaviour so as to avoid a real chance of persecution if he returns to Bangladesh and whether his conduct in Australia (and the consequential increase in his profile) should be disregarded.
These two questions raise similar issues in the circumstances of this case and arise from the applicant’s increased activism in recent years.
Section 5J(3) provides:
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.
In this case the evidence is to the effect that the applicant took an active role in the 2008 elections in supporting the BNP but his role leading up to the 2014 elections and thereafter, up until the time that he arrived in Australia, could best be described as passive or low level.
Arguably, reasonable steps that could be taken by the applicant if he was living in Bangladesh would be to take the same approach he had adopted up until 2014 by limiting his publishing activities in criticising the Awami League government and in promoting the BNP cause. If the applicant were to modify his behaviour in this way, this may well avoid a real chance of persecution because country information suggests that BNP supporters with a low profile do not face persecution.
I am satisfied that the applicant has strongly held political beliefs about the BNP, which he has had for many years. Even though the applicant’s involvement with the BNP and in publicising his views on social issues from 2008 to the time he came to Australia was at the lower end of the scale, it is relevant to take into account his youth and the fact that the applicant’s initial focus was on academic pursuits. I accept that the applicant’s activities and interests have developed since this time, genuinely in my view, into a more vocal and confident advocacy for the BNP cause, criticism of the Awami League government and commentary about social causes which may also attract negative government interest. Accordingly, in the circumstances of this case, I am of the view that any such modification of the applicant’s behaviour and conduct, namely curtailing his writing and public support for the BNP and criticism of the Awami League government, would unreasonably impose on the applicant a requirement to conceal his true political beliefs. This would be contrary to the exemptions provided under s 5J(3)(a) and (c)(iii) of the Act. This also does not address the potential for the applicant to be targeted because of his past activity in Australia.
This raises the second question about whether the applicant’s conduct in Australia should be disregarded when assessing whether he faces a well-founded fear of persecution if he returns to Bangladesh.
Section 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision-maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
It is clear that the applicant has become increasingly actively involved in BNP committees, auxiliary BNP organisations and with the Bangladeshi diaspora about the BNP cause and, in particular, criticism of the Awami League government, since he has been living in Australia. In my view, this conduct and the impact of the conduct on the applicant’s profile and therefore his claims about facing a real chance of persecution on his return to Bangladesh, have certainly strengthened his claims for protection. However, this does not on its own mean that the conduct should be disregarded and I must consider the applicant’s purpose or motivation for engaging in the conduct before considering the consequences that may flow from that conduct.[33]
[33] SZOZT v MIAC [2011] FCA 1245.
As already noted, I am satisfied that the applicant’s activities in Australia since 2015 represent a genuine commitment to the BNP cause. There is evidence that the applicant has had an active involvement with the BNP from 2008 and his explanation for why he was less involved between 2008 and the time he came to Australia is plausible and consistent. Since arriving in Australia, the applicant has maintained involvement with the BNP through BNP Australia and through his involvement with auxiliary BNP organisations overseas. There is independent evidence that corroborates his involvement in these activities over an extended period. The applicant’s involvement since 2015 has been regular, consistent and significant. Having regard to the applicant’s evidence, which I found to be credible and independently corroborated, I am not satisfied that the applicant’s conduct in Australia, which appears to have had the impact of increasing his profile while outside Bangladesh, is contrived or that it had the purpose of strengthening his claim to be a refugee.
For the reasons given above, I am satisfied that the applicant is a refugee within the meaning set out in s 5H of the Act and I am therefore satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a). Accordingly, it is unnecessary to consider the alternative complementary protection criterion in s 36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
J.L Redfern PSM
Deputy President
ATTACHMENT – Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 2147

27 June 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Standing