1700032 (Refugee)

1700032 (Refugee) [2022] AATA 3616 (29 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1700032
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Meena Sripathy
DATE:29 July 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 July 2022 at 2:23pm
CATCHWORDS
REFUGEE – Protection visa – Bangladesh – political opinion – supporter of the BNP – applicant is a low profile BNP supporter – membership of a particular social group – a single woman who supports BNP –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 426, 441, 499
Migration Regulations 1994, Schedule 2
CASES
MIMA v Rajalingam (1999) 93 FCR 220
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 December 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Bangladesh, applied for the visa on 31 May 2016. The delegate refused to grant the visa on the basis that the delegate did not accept her claims of being targeted by the Awami League due to her political profile or involvement and did not accept that she was arrested or threatened by the police or members of the Awami League or that she had a genuine fear of being harmed there. Therefore the delegate was not satisfied that she faced a well founded fear of persecution for one or more of the reasons mentioned in s5J(1)(a) and does not meet the refugee criterion in s36(2)(a), and was also not satisfied that there were substantial grounds for believing that she would face a real risk of significant harm for the purposes of the complementary protection criterion in s36(2)(aa).
The issues in this case are whether there is a real chance, if the applicant returns to Bangladesh now or in the reasonably foreseeable future, that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Bangladesh, there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
Evidence before the Department
In the application form the applicant provides information that she was born in [year] in Khulna, Bangladesh and is a Bangladesh national by birth. She is Sunni Muslim, and a [Occupation 1] by occupation. Her parents are deceased. She has [siblings] in Bangladesh and [siblings] in Australia. She indicates her relationship status as engaged since [April] 2016. She provides details of past employment from 2002 to 2013 as [an] officer at a [company] and from 2013 to 2016 as an [Occupation 1] at [a workplace]. She is educated to [tertiary] level, holding a [degree].
In response to the questions about why she is seeking protection the applicant refers to a Statement of Claims dated 28 May 2016 attached with the application which provides the following information:
·She was involved in student politics of Jatiotabadi Chatradol (JCD) the student wing of the Bangladesh National Party (BNP) from the time she attended [a] College in 1991 after her completing her SSC.
·In 1994 (the year she finished her HSC) she was the [Position 1] of JCD for her college.
·From 1995-1999 she was involved in JCD as a [Position 1] and publicised the party and encouraged people to join the JCD.
·Her family is involved with the BNP, including her parents. She was offered a [position] of the thana of BNP.
·After her [degree] she commenced a [program] in [a] College. She worked hard for her local BNP MP [Mr A] [at] the time of the 1996 national elections when most BNP MPs lost their position.
·During the period 1996 to 2001 when Sheikh Hasina was in power, all types of violence was done by the Awami League and she was victimised in those incidents.
·In 2001 she worked hard for BNP candidate [Mr B] who won the election. She distributed leaflets to houses and shops to convince people to vote for him. In this period she completed her [degree].
·After completing her [degree] she moved to Dhaka and became a [Occupation 2] for [Mr B] who was involved in various positions [details deleted].
·In 2008 her boss MP [Mr B] was arrested and since then she has been hiding in several districts of Bangladesh for fear of being caught by police.
·In 2015 she played an active role for [Mr C], [a] BNP [candidate]. She distributed leaflets, banners and participated in meetings for him. He lost the election to [name deleted] who was an Awami League candidate.
·During this time she was noticed by the media, Awami League and police and they attempted several times to catch her and kill her. Fortunately she escaped and came to Australia.
·Hasina has ben playing a very repressive role against their leader activists led by criminals and the rapid Action Battalion (RAB) who are a specialist police force recruited from Chatro League and Gopalganj District where Hasina was born. The applicant claims she was arrested by police many times.
·Her boss[Mr B] also escaped the country in fear of being killed. She fears because they could not catch him they may threaten and kill her.
·She claims she was threatened and caught by police in her hometown house in Khulna and their BNP leader helped her come out from the police.
The applicant included with her application the following documents in support:
·Photographs of applicant with various BNP leaders at various party events and activities.
·Letter from [a] District BNP confirming applicant’s involvement with the BNP since her student years.
The applicant attended an interview with an officer of the Department on 23 November 2016. An audio recording of the interview is included in the Department file and the Tribunal has listened to this.
Evidence before the Tribunal
On 29 November 2021 the applicant provided the following further material in support of her application:
·A letter dated 29 November 2021 from the applicant titled “Additional information, Change of Circumstances and Written Arguments in relation to Department’s decision.” In this document the applicant makes new claims, not previously mentioned, relating to her advocacy on behalf of poor and destitute people and ‘Dalits in secluded areas’. She claims her advocacy and support of the Dalits were not even supported by senior BNP party members. She claims she had to rely on local retail businessmen and ordinary party members to finance her fights and was accused by the Awamy (sic) League government and police of protecting drug peddlers and ‘kingpins’ in the area. She claims she was arrested in 2014 and police blamed her for having to release drug peddlers because of her involvement. She was questioned about the money she was given by kingpins and drug peddlers. She referred to being tortured and sexually abused by the officers and threatened with imprisonment. She states that she questioned the locals about their involvement in drug peddling but they told her they had no jobs or income so had to rely on the kingpins and urged her to fight for them. She claims she was followed by police constantly. Following visits to India in 2015 and 2016 she was arrested and questioned by police about where she had been in India and what she was doing. She was accused of visiting [a district] to collect money from kingpins. The police threatened to lay criminal charges against her or abduct and kill her for promoting and protecting kingpins and drug peddlers between India and Bangladesh. She seeks complementary protection as a woman who would be arbitrarily deprived of her life for getting involved in politics to protect the Dalits and poor businessmen. She fears torture and degrading treatment as a woman. She has witnessed and fought for Dalit women who have experienced this. She has also been involved in protest marches against the Bangladesh government in Sydney. She attaches photographs and [social media] entries about this. She also attaches an article dated 20 April 2019 about the brutal killing of a Bangladeshi woman, and refers to Human Rights Watch World Report 2021 on Bangladesh.
·On 7 December 2021 the Tribunal received copies of a letter dated 28 December 2016 from [Mr D], President BNP [a] Branch confirming the applicant as a leader and activist of the party; and a letter dated 19 February 2017 from [Mr E], [a senior official] BNP also confirming the applicant as an active leader of the Party from 1991 to 2016.
Tribunal hearing 14 December 2021
A summary of the evidence provided by the applicant at the hearing follows. She lives in [a suburb] with her sister, with whom she has been living since her arrival in Australia in 2016. She is working as a [occupation] in a [workplace] and has been working with this employer since 2017. This was the first job she obtained since coming to Australia. She is single. She has never married. She had a relationship prior to coming to Australia, but it had not progressed to an engagement. The relationship ended when she came to Australia. He got engaged and married someone else.
Her sister is her only family in Australia. Previously she had a brother here, whose wife was studying. They came in 2016 and went back to Bangladesh in June 2018. In Bangladesh she has [number] [siblings]. They are all married and live in Dhaka and Khulna. Her parents passed away in 2006 and 2008, from illness. The applicant confirmed she is in contact with her siblings in Bangladesh on a regular basis. She keeps informed about their lives and they ask about hers. The Tribunal asked if any have experienced any issues or problems in the time she has been here. She said they have not. Previously when she was there, some of her siblings had some difficulties when people were asking after her, but since she has been here they have not. The Tribunal asked if any of her siblings are involved in political activities or politics, she said none are involved in the way she was but they do hold political opinions and support the BNP. She confirmed that this is a family affiliation that goes back to her father. Her father encouraged her to get involved in politics. When asked what his involvement was she said she knows he put in time for the party but does not know the details of his political involvement as she was too young.
Prior to coming to Australia the applicant said she lived between Dhaka and Khulna. In Khulna she lived in the family owned property. It is a two story building and now it is rented out. Her siblings who live in Khulna live in different properties. When she lived in Dhaka she stayed with various siblings who live there.
The applicant confirmed her work history as indicated in the application. She worked from 2002 to 2013 at a [company]. This was owed by [Mr B] who was a BNP leader who she campaigned for in 2001. She was like a [Occupation 2] to him and worked at his company but mainly on political matters. The Tribunal asked if she worked for him throughout the period from 2002 to 2013. She said she did. It put to her that it has seen information that [Mr B] was arrested and sentenced to [jail] for corruption issues in 2007. She agreed that he was arrested in 2007 and then he disappeared for a period. During this period she also had to hide and was afraid of being arrested. She believes [Mr B] eventually left the [country]. She doesn’t know when. The applicant said that what happened to [Mr B] was common for BNP leaders since the Awami League came to power. They bring corruption cases against BNP leaders. They have done the same to Khaleda Zia the leader of the party. This is just what happens. After 2013 the applicant worked as a [Occupation 1] until 2016. The Tribunal asked why she changed jobs. She said she changed jobs to be associated with a respectable profession. By then she had focussed her political work to help needy people. She was trying to get the support of her BNP party to help these people.
Prior to coming to Australia the applicant had travelled to India many times. She has many relatives in India. Most recently, in 2015 she went for a cousin’s wedding and in February 2016 she went for an aunty’s funeral. She said she never had any issues returning to Bangladesh from India. Later in the hearing the applicant said she was sometimes questioned about her frequent travel to India and accused of working with drug peddlers. She also said later that she went to India for periods of time in the past to get away from problems she was having in Bangladesh. The applicant confirmed that she never had problems re-entering Bangladesh although sometimes she was questioned about the frequency of her travel to India.
The Tribunal noted that she provided a new passport at the hearing, issued in January 2019. She confirmed that she renewed her passport in Australia. She applied through the post office and did not attend the Embassy in person. She said it was renewed without issue. She renewed her passport because it is a necessary primary identification document for her in Australia.
The Tribunal discussed the claims made in her application for protection. She said she prepared the statement dated 28 May 2016 with the assistance of her migration agent. When questioned who this was given that she has not indicated a migration agent in her application she said the agent did not want to be named. She told her story to him and he prepared the statement in English.
The Tribunal went through the main details included. She confirmed her claim that she was involved in the student wing of the JCD from her college days in 1991. She would attend political meetings and rallies, prepare posters and distribute leaflets. From 1995-1999 she was involved as a [Position 1] of the JCD where she advocated for the female residential students and helped the needy students to make their lives better. She was also involved in local political campaigns in this period. She worked for MP [Mr A] in the 1996 election campaign.
The applicant explained that her family has a history of affiliation with BNP and this is where her interest and motivation for the party came from. She was encouraged by her parents to become involved because she had leadership skills and wanted to help needy people. She had aspirations of one day becoming an MP. She referred to having a relative in India who was involved in politics, but he has since passed away.
In 2001 she worked on the campaign of [Mr B] and he won that election. She would go door to door to get support for him and distribute leaflets. She worked with a team of people to win him the election. Her next campaign was in 2015 when she supported [Mr C]. She did the same kind of activities for him, and helped with mass communications, rallies and meetings. She was well known in Dhaka and Khulna for her political work. [Mr C] did not win in 2015 because the Awami League already had a person to take that seat so the BNP pulled out of the race. The applicant confirmed this was the last political campaign she was involved in.
The Tribunal asked if she suffered any harm as a result of her political activities. She said she has been arrested and harassed, including sexually harassed many times. When asked to elaborate on this, she referred to an incident in October 2014 when she was arrested at the police station. She explained that the neglected and needy people in her area would be captured by police and taken to the station and accused of working for the drug lords. Their relatives approached the applicant and she went to the station to advocate for them. The police then accused her of working for the drug lords. She was never charged with any offence but she was harassed and questioned. Ultimately her BNP leaders came and got her released.
The Tribunal noted she has not mentioned this incident in her written statement or oral evidence to the delegate. She said she did not feel comfortable talking about the accusations of being involved with drug lords to the Bangladesh migration agent or at the interview. She confirmed she was never charged with any drug related offences. She said they were just trying to ruin her political career by accusing her.

The Tribunal asked if there were any other incidents. She said it happened a few times. She referred to the police taking her and touching her on her private parts. She referred to another time when people came to her house and threatened her. She said that this should never have happened to her. She just wanted to help the needy and poor people.
The Tribunal put to the applicant that there are inconsistencies in her written and oral claims. She did not mention this work with ‘the needy people’ in her written statement or to the delegate. The Tribunal may have concerns about the credibility of her evidence due to these inconsistencies and this late submission. The applicant said she had been working for the needy and neglected people and took it to her party to seek their support. She tried to convince them that she could bring these people to support the BNP if they supported their needs. Initially they told her that they are not in power and they would need to wait until they are in power then they may be able to take her issue up. Later on, when the Awami League recognised her work with the Dalits and realised that this group of people may go on to support the BNP, then the BNP took notice of her.
The Tribunal asked about her claims of being questioned by police following her visits to India. She said she and her brother were questioned about drugs when they returned from India in 2015 but they had no evidence against them and they were released. In 2015 she was again arrested by the police and released after her political leaders came to demand her release. She was never charged. The Tribunal noted that after that she was able to go to, and return from, India in 2016. She agreed she was but she was questioned and they were monitoring her.
The Tribunal asked if she had been involved in political activities in Australia. She said she has not been directly involved but she has attended a couple of protests. She attended a protest in Sydney [when] Sheik Hasina came to Australia in 2018. She held up placards and protested the treatment of BNP leaders and the false cases against them. In 2016 she travelled to Canberra and protested against false cases against Khaleda Zia’s son Tarique Rahman. She has also participated in online political meetings with political leaders in Bangladesh. The applicant showed the Tribunal her phone which had messages in Bengali language and a zoom link. The Tribunal indicated to the applicant if she wants the Tribunal to consider this evidence she must provide it with an accredited translation as the Tribunal cannot otherwise understand the contents.
The Tribunal asked the applicant if she follows how the BNP is going in Bangladesh in recent years. She said she is trying to lead a quiet life here, given her age now she wants to be able to have a good life. She has been working hard and has a good life here. She feels like she is a Dalit person in this society, she does the same kind of work, including [deleted]. Her contributions to the BNP are less and less now.
The Tribunal asked the applicant what she would do if she returned. In response the applicant said she does not think of returning to Bangladesh. She does not want to go back there. She has nothing and no one to support her there. She knows that people are disappeared there for their political activities. She fears that same fate awaits her.
The Tribunal put to her that she has [number] siblings there and therefore significant family support. She has just said she does not wish to be involved in politics anymore. The Tribunal asked if she does not get involved in politics, what harm does she fear. She said that she is already marked as a political person because of her political work in the past. It will not leave her if she returns. Her siblings have told her they would not support her if she returned.
The Tribunal put to the applicant, country information before the Tribunal indicates that the political situation in Bangladesh now is quite different to when she left. The Awami League has been in power for more than 12 years and the power base of the BNP has declined significantly. The information acknowledges that while there continues to be some political violence it is mostly around elections and a lot is intra-party violence rather than between the BNP and Awami League. The Tribunal may find in this context she may not face a real chance of serious harm if she returns now. In response the applicant said that her name is known and she is known to the Prime Minister and other significant politicians there. She is known for her BNP affiliation and is at risk of harm for that reason. The Tribunal asked the applicant if she still supports the BNP given all that they have been through in these last years. She confirmed that she still does but she now wants to live her own life for herself.
The Tribunal asked the applicant about her view regarding the BNP’s alliance with Jamaat -e-Islami. She responded that she respects every religion and cultural background and have supported all religious people. When asked if she had a view about the party’s association with groups that are less tolerant of other religions, she said she respects all people. She is a student of history. The applicant said she wanted to be part of the political system so that she could do good for people. If she was a leader she could do this, but she is not a leader and therefore cannot affect their leadership decisions.
The Tribunal asked the applicant if there is any other reason she fears return apart from her political opinion and past activities. She said her main identity is as an BNP worker and her connections with them. She believes she is affiliated with them regardless of whether she does any political activities in future. They can cause problems for her by planting drugs and bringing a case against her. She referred to a recent incident of a woman who was raped because of her BNP affiliation. She has been threatened in the past and she fears harm in future.
The Tribunal indicated it would allow her two weeks to provide any further information she wishes to support her review.
To date the Tribunal has not received any other information from the applicant.
FINDINGS AND REASONS
Nationality
The Tribunal accepts that the applicant is a national of Bangladesh on the basis of her oral evidence and current Bangladesh passport (renewed in 2019) presented at the hearing. It considers Bangladesh is the country of nationality and receiving country for the purpose of assessing her claims against the protection criteria.
Consideration of applicant’s claims
When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of credibility of the applicant. When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (See MIMA v Rajalingam (1993) FCR 220). However the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).
The applicant’s claims made before the Department and Tribunal are as follows: She was involved with the BNP student wing in her hometown of Khulna from the time she was in college in 1991, held positions as a [Position 1] for the student wing during her college years and as [Position 1] from 1995 to 1999. She worked in the campaign of her local MP [in] the December 1996 election and campaigned for BNP candidate [Mr B] in 2001. She claims she subsequently worked as [Occupation 2] for [Mr B]. The applicant claimed she last campaigned for the BNP in the 2015 [election], for candidate [Mr C]. At the department interview the applicant elaborated on her fears of harm as a woman and provided further details of an incident in 2014 where a group of men came to her house and threatened her if she did not leave politics, pointing with a gun. She spoke of other gender related harassment experienced and gave as examples having her scarf removed, hair pulled and threats to remove her clothing, though she sis not refer to specific incidents when this happened.
Before the Tribunal the applicant introduced new claims that she was involved in advocacy on behalf of poor and destitute peoples and Dalits in secluded areas and was accused by the Awami League and police of protecting drug peddlers. She referred to mistreatment and abuse by police when being questioned about this and reiterated her fears of harm on the basis of her gender and political profile. The applicant also referred to attendance at two protest rallies in Sydney and Canberra since coming to Australia.
The applicant submitted photos and support letters from [Mr D], dated 28 December 2016, [Mr E] dated 19 February 2017 from BNP [offices], and letter dated 21 November 2016 from [a named person] from Bangladesh Jatioabadi Dal (BNP) Australia regarding her affiliation with the party in support of her claims. The Tribunal has considered this material.
Having considered all of the evidence before it, including written, documentary and oral evidence before the Department and contained in relevant Department files and the oral and documentary evidence to the Tribunal, the Tribunal makes the following findings and assessment relating to the applicants’ material claims.
Claims regarding past political activities and BNP profile
The Tribunal accepts the applicant was a supporter of the BNP from the period of her college days in her hometown of Khulna. It accepts her evidence about her involvement in the student wing of the BNP, the Jatiotabadi Chatrodol (JCD) and that she advocated for female residential students at her college and publicised the party in her role as [Position 1]. The Tribunal accepts these claims on the basis of the consistency and detail of her evidence of these matters to the Department and Tribunal. The Tribunal accepts her claim that her BNP affiliation comes from a family tradition and was encouraged by her late father.
Regarding her specific involvement in political campaigns of BNP candidates in the post college period, the applicant claimed that she participated in the political campaigns of BNP candidates [Mr A] and [Mr B] in the 1996 and 2001 elections, respectively, and campaigned for [candidate] [Mr C] [in] 2015, though he ultimately withdrew before the election. On her own evidence she has not been involved in any political campaigns on behalf of the BNP or any other candidate since then.
For the purposes of this assessment, the Tribunal is prepared to accept that she was involved in these campaigns. It accepts that she worked with others to help these candidates in their campaigning by going door to door and distributing leaflets. Her oral evidence about these activities was detailed and consistent before the Department and Tribunal and is generally consistent with information considered by the Tribunal, for example regarding the use of women in campaigning strategies.[1]
[1] See for example, in D Jackman, The Crocodiles are Closing In: Everyday Life for a Local BNP Leader, A.E. Ruud and M. Hasan (eds), Masks of Authoritarianism, at p97
However, the Tribunal does not accept all of the applicant’s claims about the extent of her political activities and profile. Specifically, it does not accept that she worked as a [Occupation 2] for [Mr B] from 2002 to 2013. She told the Tribunal she worked on political matters for him through his [company]. The Tribunal put to her that information before it indicates Mr [B] was arrested, charged and sentenced in 2007 to lengthy prison sentences, including for tax evasion and corruption[2] which may be inconsistent with her claim to have worked as his [Occupation 2] on political matters up to 2013. In response she acknowledged that [Mr B] was arrested at this time but maintained that she continued to work on political matters for him and his son in this period. She argued that charges such as this are typical of the approach of the Awami League against BNP people, and referred to corruption charges brought against Khaleda Zia. She told the Tribunal she subsequently changed her employment from 2013 and worked as a [Occupation 1] so that she would be associated with a ‘respectable profession’ after her association with the [company]. The Tribunal does not accept the applicant served [Mr B] as a [Occupation 2] on political matters as claimed to 2013 given the information about his arrest and sentencing. It further notes news articles dated 4 February 2019 before the Tribunal reporting the resignation by [Mr B] from the BNP for reasons of ill health in early 2019, quote him saying he was inactive in BNP politics for 10 years.[3] This contradicts the applicant’s claimed involvement with him on political matters to 2013. She has not elaborated in any further detail about the scope and nature of her political activities for [Mr B], and in light of the information about his fate described in these articles, the Tribunal rejects this aspect of her claim.
[2] [source information deleted]
[3] [source information deleted]
Further, before the Tribunal the applicant raised entirely new claims about her advocacy on behalf of poor and destitute people and Dalits and claims of being arrested and questioned by police in that context on numerous occasions since 2014. She made claims about being accused by the Awami League and police of involvement in the drug world associated with the communities she was doing advocacy work for. She had not previously mentioned of any of this in her written statement or oral evidence to the delegate at interview. When asked by the Tribunal why she did not mention these matters earlier, she said she was unable to talk about it to her Bangladeshi migration agent because of her concerns that he was Bangladeshi. The Tribunal is not convinced by this explanation as it doesn’t explain her failure to mention it at the interview with the delegate, or why she was raising it now. For these reasons it rejects these claims as lacking in credibility.
The Tribunal does not accept that the applicant worked on behalf of the interests of poor and impoverished communities and Dalit communities as claimed or that she came to the attention of the Awami League or police for that reason. Consequently, the Tribunal does not accept the applicant was arrested or questioned or accused of involvement in drug peddling as claimed, nor does it accept that she was mistreated by police in that context. In rejecting these claims the Tribunal also takes into account the evidence that she travelled multiple times to and from India in this period. If she was of interest to the police, the Tribunal considers she would not have been able to depart from and return to Bangladesh without issue. It also queries why she returned voluntarily having departed the country if she was fearful that the police were monitoring her. The Tribunal notes that earlier in the hearing, the applicant explained that she travelled to and from India many times because she has many relatives there, and did not refer to having had any problems or issues in the context of her travel there. Later she said that she went there to avoid problems she was having in Bangladesh. The Tribunal considers her evidence internally inconsistent on this and, which adds to its credibility concerns regarding her claims indicated above.
Notwithstanding the above concerns about certain aspects of her claims, the Tribunal accepts for the current assessment that the applicant is, and has long been, a BNP supporter and campaigned for local BNP candidates in the 1996 and 2001 elections. It accepts she was last involved in a political campaign in Dhaka in 2015 on behalf of BNP candidate [Mr C] until he withdrew prior to the election and has not been involved in any campaign since then.
Since her arrival in Australia in 2016, the applicant’s evidence is that she is not directly involved in political matters, apart from having made a visit to Canberra in 2016 to protest charges laid against Tariq Zia, son of Khaleda Zia and attending a rally [in] 2018 to protest the visit to Australia by Prime Minister Sheikh Hasina. She told the Tribunal at hearing that she participates in online meetings with political leaders from her party and attempted to show the Tribunal zoom links for these meetings on her mobile phone. However she did not follow this up and provide an accredited translation of this evidence as requested by the Tribunal if she wished to rely on it to support her claims. She also, in direct contradiction to this claim, told the Tribunal that her contributions to the BNP since she has come to Australia is less and less and she now wants to live a quiet life and for herself. The Tribunal is not satisfied, on the evidence before it, that the applicant has been actively involved in political activities since coming to Australia in a manner that would give her a profile upon return to Bangladesh in the reasonably foreseeable future. It finds, on the evidence of her activities in Australia and engagement with current Bangladeshi political developments, that she would not participate in political activities were she to return to Bangladesh in the reasonably foreseeable future.
Having regard to her evidence, and findings above about the nature and scope of her past activities and experiences, the Tribunal finds she is a low profile BNP supporter. She last campaigned publicly for a BNP candidate in 2015. She was not of adverse interest to the authorities upon her departure from the country in 2016 and has not engaged in any activities since being in Australia that would attract any interest from the Awami League or authorities upon return. In reaching these conclusions the Tribunal takes into consideration that she had travelled in and out of Bangladesh repeatedly in 2015 and 2016 and was able to depart Bangladesh for Australia in April 2016 without issue. It also notes that she applied for and was granted a renewal of her Bangladesh passport in 2019 without issue. The Tribunal also found, above, that she would not engage in political activities on behalf of or to support the BNP in future.
As the relevant time for the Tribunal’s assessment of the applicant’s protection claims is the present and the relevant enquiry is whether she faces a real chance of serious harm in the reasonably foreseeable future, the Tribunal has considered current independent information about the political environment in Bangladesh.
Independent information - Current political environment in Bangladesh
Information before the Tribunal regarding the current political environment in Bangladesh and the Awami League indicates that Bangladesh has had a two-party political system dominated by the centre-left Awami League (AL) and the centre-right Bangladesh Nationalist Party (BNP) since 1991.
DFAT’s most recent Country Information Report for Bangladesh (August 2019) summarises that 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. [4]
[4] DFAT Country Information Report Bangladesh 22 August 2019, para 2.3

The AL leads a 14 party-alliance (the ‘Grand Alliance’) which has won the three parliamentary elections since 2008, including the most recent landslide victory in December 2018. In the 350-member parliament (the Jatiya Sangsad) the Grand Alliance forms the government of Bangladesh with AL holding 301 seats in its own right and other members of Alliance holding 10 seats.[5] The Jatiya Party is the official opposition in parliament, as the second largest party holding 25 seats, following a declaration by its Chairperson that it would discharge this responsibility when the BNP rejected the results of the election. In respect of this, 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.”[6]
[5] COUNTRY INFORMATION REQUEST REPORT, DFAT - Bangladesh -country update No. 20211011122600, 22 November 2021
[6] Transparency International Bangladesh, 30 September 2020, Parliament Watch 11th - Parliament, p. 9
The primary ideological opposition party to the AL is the BNP, 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[7], claiming that the Election Commission was “incapable of holding them in a free and fair manner.”[8]
[7] >
Sources before the Tribunal suggest that in the 12 (sic, now 14) years the Awami League (AL) has been in power, the BNP and other opposition parties have remained somewhat inactive. As a result, it is reported that most of the political conflicts are taking place within the ruling party.[9] According to ASK, a non-government organisation, a total of 439 incidents of political clashes took place in the country between January 2020 and July 2021. Of the incidents, 158 were internal conflicts of AL and its associate bodies. A total of 89 clashes took place in 2020 and the rest of 69 happened in the first seven months of this year. These incidents left 32 people killed in 21 districts. Most of the victims are leaders and activists of the ruling party. Passers by were also killed during the clashes between two groups of the ruling party.[10]
[9] Reported by Prothom Alo, >
The BTI 2020 Country Report: Bangladesh, said: “Over the years, the BNP’s support base has declined, since it has been out of power for the last 12 years. There is a strong culture of clientelism that connects the parties to its cadres, who work tireless to support the party organization at the grass root level. In turn, they expect to benefit once their party comes to power... ...The BNP support base has eroded, as the party has been in the political wilderness for so long. The party has experienced a leadership vacuum and lacked a visionary political narrative to fight the ruling party. Its political narrative was confined to the release of its leader. Its lack of political confidence was apparent when it could not cut its ties with Jamaat in spite of some senior leaders opposing the alliance. As a result, the opposition alliance remained fragmented.”[11]
[11] BTI 2020 Country Report: Bangladesh, p.12
Other sources that discuss the BNP’s position as a major political force in the country following its disappointing result in the 2018 election and the fact that it has not been in power since 2006, suggest a resurgence appears to be unlikely.[12]
[12] M Hasan and A.E. Ruud, What went wrong with the BNP, Bangladesh’s main opposition party? AlJazeera 9 March 2019, What went wrong with the BNP, Bangladesh’s main opposition party? | Elections | Al Jazeera
On the other hand, a recent country update request obtained from the Australian Government’s overseas post regarding AL’s current level of concern about the BNP noted that the AL continues to campaign against the BNP on an ongoing basis, referring to various news articles citing the Prime Minister referencing the BNP,[13] suggesting that they may yet be relevant.
[13] Eg. The Daily Star reported in September 2021 that Prime Minister Hasina told parliament she wanted to make Ziaur Rahman an accused in the Bangabandhu murder case as there was no doubt in her mind he was involved in the killing: The Dhaka Tribune reported that, on her November 2021 trip to the UK, Prime Minister Hasina said BNP was battling for its existence as a political party claiming it is led by “a person” convicted for arms smuggling and corruption: In 2020 the Daily Star reported that Prime Minister Hasina alleged Khaleda Zia was also involved in a grenade attack on her in August 2004: Ibid, Q 7
This is also recognised in the most recent DFAT’s Country Information Report on Bangladesh, where the assessment is that ‘under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges, and travel bans. Active members of opposition political parties and auxiliary organisations who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. This risk is elevated around times of heightened political tension, including elections. Those who are members of opposition political parties and auxiliary organisations but who do not engage in political activities and demonstrations face a lower risk of arrest, although this may vary according to location and timing’.[14]
[14] DFAT Country Information Report Bangladesh 22 August 2019 para 3.70
DFAT assesses in relation to the BNP, 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’, 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’.[15]
Gender based harm and violence
[15] DFAT Country Information Report Bangladesh 22 August 2019 para 3.82
The Tribunal has also considered the applicant’s claimed fear of harm on the basis of her gender as a woman, and as female member and supporter of the BNP. She claims that she experienced sexual harassment and mistreatment by police because of her gender in the past. The Tribunal, above, has rejected that she was arrested or questioned by police as claimed and therefore, consequently rejected her claims that she experienced gender based harm in that context. It will nevertheless assess her claim of harm on the basis of her gender more generally.
The DFAT report states that despite legal prohibitions, rape, sexual harassment and other forms of gender-based violence against women occur frequently. It reports that human rights NGO Odhikar documented 619 rape cases from 1 January to 30 November 2018, although these figures are likely to understate actual occurrence. According to the US State Department, the prosecution of rapists is weak and inconsistent, which supports a culture of impunity and encourages further criminal acts by those who escape legal consequence for their crimes. Women often do not report violent crimes, including rape, to police. Local sources told DFAT that attempts to report to police may not be taken seriously. DFAT was aware of unverified claims that rape has been used in politically motivated violence.[16]
[16] DFAT Country Information Report Bangladesh 22 August 2019 pp34-35
On the other hand, the Tribunal also has before it contradictory information in the response from Post in the previously cited Country Update Request in response to the question of whether BNP-affiliated women/single women more likely to attract the attention of the AL because of their gender. That response stated ‘Post is not aware of any significant difference in the attention given by the AL to BNP-affiliated women/single women on the basis of their gender or marital status.’[17]
[17] COUNTRY INFORMATION REQUEST REPORT, DFAT - Bangladesh -country update No. 20211011122600, 22 November 2021, Q 9
The DFAT report refers to significant social stigma against single women. Most Bangladeshi women are married very young and being single by choice is virtually unheard of. NGOs report that general violence against women also occurs frequently, particularly in relation to disputes over dowries. A 2009 High Court guideline prohibits sexual harassment, known euphemistically (and inaccurately) as ‘Eve-teasing’, in both private and public areas. Activists report, however, that enforcement and monitoring of the guideline is rarely enforced, and that women commonly experienced sexual harassment. Although women’s seats on buses have been introduced in Dhaka to accommodate the relatively recent phenomenon of women commuting to work, groping is common on crowded transport. Women have also been sexually harassed and raped at their workplaces, particularly in garment factories. In many cases, fear of experiencing sexual harassment reportedly prevents women and girls from attending work or school. In conclusion, DFAT assesses that most Bangladeshi women and girls, regardless of their religious community or socio-economic status, face persistent societal discrimination and a high risk of gender-based violence and sexual harassment. Longstanding traditional values and gender roles continue to restrict the participation of women in the workforce and community.[18]
[18] DFAT Country Information Report Bangladesh 22 August 2019 para 3.123-3.128
Other sources also refer to violence against women in Bangladesh as significant and prevalent. The Tribunal has considered country information cited in the UK Country Policy and Information Note Bangladesh: Women fearing gender-based violence.[19]
[19] 'Country Policy and Information Note Bangladesh: Women fearing gender-based violence', UK Home Office, 29 June 2020, Para 2.4.9, p.9, 20200630092349
Bangladesh human rights organisation Odhikar reported that violence against women continued in 2020 and 2021, including rape, sexual harassment, dowry violence and domestic violence, which were multiplied during the Covid-19 pandemic.[20] The years from 2009 to 2020 recorded a total of 5978 children (primarily girls) and 3419 women being rape victims; of these 919 children (all girls), 577 women and 42 female individuals of unknown age were rape victims in the year 2020 alone; 3817 incidences of dowry related violence against (married) women; 476 women experienced acid violence. The common perpetrators of domestic and dowry-related abuse are usually husbands or other family members.[21]
[20] 'Annual Human Rights Report 2020 BANGLADESH', Odhikar, 25 January 2021, p.53, 20210209153355; 'Three-Month Human Rights Monitoring Report On Bangladesh: April - June 2021', Odhikar, 9 July 2021, pp.8, 29, 31, 20210728132042
[21] 'Country Policy and Information Note Bangladesh: Women fearing gender-based violence', UK Home Office, 29 June 2020, Para 2.4.9, p.9, 20200630092349
Ain o Salish Kendra (ASK) also recorded an increase in reported rape, citing 1,413 women were raped between January and December 2019, of whom 76 were killed and 10 committed suicide, compared to 732 in 2018 (63 killed, 7 suicides)143 and 818 in 2017 (47 killed, 11 suicides). At least 328 of the 2019 cases were against minors[22]. According to media monitoring, some rapes were committed by police[23]. The USSD HR Report 2019 also reported police were perpetrators of rape.[24]
Assessment of future risk of harm
[22] ASK, ‘Violence Against Women – Rape (Jan-Dec 2019)’, 6 January 2020, url. ASK, ‘Human Rights Situation of Bangladesh in 2018’ (page 10), January 2019, url. ASK, ‘Human Rights Situation of Bangladesh in 2017’ (page 11), 2018, url. ASK, ‘Violence Against Women – Rape (Jan-Dec 2019)’, 6 January 2020, url.
[23] ASK, ‘Violence Against Women – Rape (Jan-Dec 2019)’, 6 January 2020, url.
[24] USSD, ‘Country Report on Human Rights Practices for 2019’ (Section 6), 11 March 2020, url.
The Tribunal has carefully considered the above independent information, together with its findings above relating to the applicant’s claims, past experiences and past and current political profile. Having regard to all of this evidence and material before it, the Tribunal is not satisfied there is a real chance the applicant will face serious harm from the AL, police, or any other authorities for reasons of her actual or imputed political opinion as a member or supported of BNP, on the basis of her membership of a particular social group, as a woman, or a single woman, or a single woman who supports BNP, or any other particular social group, or for any other reason specified in s5J(1), upon her return in the reasonably foreseeable future.
The Tribunal accepts that the applicant’s claims for protection come within the specified reasons in s 5J(1) of actual or imputed political opinion (BNP supporter) and/ or membership of one or more of the following ‘particular social groups’: woman, single woman, female BNP supporter all of which it accepts are capable of coming within the definition of this term in s 5L. The Tribunal has assessed her claims on that basis.
Regarding her claims to fear harm on the basis of her political opinion, the Tribunal accepts she was a supporter of the BNP and continues to support the party, but it is not satisfied that she has a profile that would attract the attention of anyone in the ruling AL now or in the reasonably foreseeable future. The reasons for this include that there has been a substantial passage of time (over 7 years) since she was last active on a local level in politics in Bangladesh in 2015. Furthermore, the Tribunal found, above, that it is not satisfied she has had any substantial ongoing involvement in the BNP or local Bangladesh politics since she has been in Australia. Additionally, the country information before it indicates the BNP is declining in power in the political landscape in Bangladesh now and much of the political violence now involves clashes within parties and specifically within the ruling AL. While accepting that there continues to be a degree of ongoing political rivalry between the two major political parties of the BNP and AL, the weight of country information before the Tribunal indicates the risk of harm in this context is directed towards high profile, senior BNP figures, or BNP members actively engaged in opposing the AL including in violent protests. Nothing in the applicant’s evidence regarding her activities in the last seven years since she has been in Australia, or her activities prior to that in Bangladesh, leads the Tribunal to believe she comes within such a risk profile. The Tribunal does not accept, as claimed, that she will be targeted for serious harm on the basis that she is a BNP supporter, or because of her work in support of BNP candidates in the past. It does not accept, as claimed, that she has a profile in the BNP to warrant attention on her now were she to return regardless of whether she engages in political activities. On the basis of her own evidence to that effect, the Tribunal finds that she would not engage in political activities if she were to return to Bangladesh now or in the reasonably foreseeable future. The Tribunal does not accept that she is known personally to the Prime Minister or any significant politicians in Bangladesh as claimed or that she faces a risk of harm on that basis.
The Tribunal accepts that the applicant remains loyal to the BNP and continues to oppose the AL, its ideology and its leader. It accepts for this reason that she remains reluctant to return to Bangladesh, particularly given the diminishing prospect of a return to power for the BNP after such an extended period out of power. However, her reluctance to return for reasons of opposition to the ruling government alone is not sufficient to meet the criteria for recognition as a refugee.
The Tribunal has also considered the applicant’s claims of harm feared on the basis of her gender, as a female BNP supporter and/or as a single female.
The Tribunal accepts that she is a single woman who supports the BNP and has considered whether she faces a real chance of gender based harm, that can be characterised as serious harm within the meaning of that term, upon return. In this regard, the Tribunal has considered the independent information indicating the incidence of gender based violence in the form of discrimination, sexual harassment, and rape and other sexual assault and accepts that such violence occurs in Bangladesh, and in particular notes the information that suggests that reports of rape and sexual assault have increased in recent years.
Notwithstanding this alarming information, the Tribunal is not satisfied that the applicant, given her particular circumstances and situation, faces a real chance of serious harm for reasons of her membership of one or more of the particular social groups referred to above. In reaching this conclusion the Tribunal takes into consideration the following. The applicant has substantial family ties in Bangladesh. Her evidence to the Tribunal is that she has [number] siblings there and she is in contact with them. She lives here with a sibling and has always lived with her sibling here. She lived in her family property in Khulna, and with her siblings in Dhaka before she came to Australia. The Tribunal does not accept her claim that her family will not support her upon return. It acknowledges she claimed this at hearing, but it was a mere assertion and she has provided no credible evidence to support it and it contradicts her history of having lived with siblings in the past. The applicant is educated, holding a [degree], and has an established employment history in Bangladesh, including as a [Occupation 1], and has been consistently employed in Australia. She also indicates in her application that she has English language skills, and after her years in Australia she would have greatly improved on those skills. The Tribunal finds she has qualifications, skills and experience to enable her to obtain employment in a relatively secure environment such as a school or college, or in administration in a reputable company were she to return to Bangladesh in future where she would be less exposed to the risk of serious harm of a gender related nature such as rape or sexual assault. While accepting that she may experience a degree of negative social stigma in the community as a middle-aged single woman, and may be at risk of sexual harassment if she had to rely on public transport (although it notes there are reserved seating for females on buses in Dhaka), the Tribunal is not satisfied that these harms alone, individually or cumulatively, rise to the level of serious harm as contemplated by that term in s5J(5). As the applicant has herself stated that she no longer wants to pursue political activities and the Tribunal’s finding that she would not upon return, there is no reason that her status as a BNP supporter or former worker, would be known publicly upon return and the Tribunal is not satisfied that she would face a real chance of serious gender based harm for reasons of being a female BNP-supporter. As the applicant is single, and she has not claimed fear of domestic or family violence, she does not face a real chance of other forms of gender based harm from a domestic partner or close family member such as domestic violence, forced marriage or acid attack.

For these reasons the Tribunal is not satisfied that the applicant, given her particular circumstances, faces a real chance of serious harm on the basis of her gender or as a female BNP supporter, or membership of any other particular social group.
Having regard to the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that she faces a real chance, as opposed to one that is remote or far fetched, of serious harm for reasons of her political opinion or gender or any other reason mentioned in s5J(1).
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary Protection
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 has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that she will suffer significant harm as defined in s36(2A) of the Act.
Having regard to the findings made above regarding the applicant’s circumstances and claims indicated above, the Tribunal is not satisfied that there is a real risk she will be arbitrarily deprived of her life; or the death penalty will be carried out on her; or that she will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if she is returned to Bangladesh.
The Tribunal has above rejected the applicant’s claims that she was arrested and mistreated by police or authorities in the past in the context of her political activities and having rejected her claims that she engaged in advocacy on behalf of poor and impoverished people and Dalits and was questioned, tortured and abused by authorities in that context, the Tribunal is not satisfied that there are substantial grounds for believing that she will face such kind of harm or degrading treatment or punishment if returned. The Tribunal accepted that the applicant was and continues to be a supporter of the BNP, which is, and has been for some time, in opposition. However, the Tribunal found that she does not face a real chance of serious harm on that basis for the purposes of the refugee criteria, and finds on the basis of the same reasoning that there is not a real risk she will face significant harm upon return to Bangladesh because of this.
The Tribunal is also not satisfied the applicant faces a real risk of gender based harm as a single woman or as a female BNP supporter, for the same reasons it concluded above that she did not face a real chance of serious gender based harm. To the extent that the Tribunal acknowledged that she may face negative social stigma in the community as a middle-aged single woman and may be at risk of sexual harassment if she had to rely on public transport, the Tribunal is not satisfied that these kinds of harm come within the meaning of significant harm as defined in s36(2A) of the Act. It is not satisfied that it would involve severe pain or suffering, or extreme humiliation as required in the definitions of those terms.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Meena Sripathy
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 3616

29 July 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Appeal