1700789 (Refugee)

[2021] AATA 921

1700789 (Refugee) [2021] AATA 921 (4 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1700789

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:David McCulloch

DATE:4 March 2021

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 04 March 2021 at 4:53pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – opposition to ruling party – membership of BNP – participation in protests – attack on applicant’s business – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 5 January 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Bangladesh, applied for the visa on 25 May 2016. The delegate refused to grant the visa.

3. The applicant appeared before the Tribunal on 2 March 2021 at 1.30pm. The Tribunal was assisted through the use of an interpreter in the Bengali and English languages. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. 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.

6. 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).

7. 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.

8. 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

9. 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 (DFAT), 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. The Tribunal has before it the DFAT Country Information Report – Bangladesh, 22 August 2019. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

11. The applicant applied for an FA 600 visitor visa offshore on 24 November 2014, which was granted on 25 November 2014. The applicant first arrived in Australia [in] December 2014, and departed [in] January 2015. The applicant applied for an FA 600 visitor visa on 3 November 2015, which was granted on 20 November 2015. The applicant arrived in Australia [in] December 2015. The applicant applied for a protection visa on 30 May 2016. Prior to visiting Australia, the applicant visited [another country] from [August] 2012 until [August] 2012 for business, and transited via [a second country].

12. The following information is apparent from the application for protection forms. The applicant was born on [date] in [Sylhet], Bangladesh. The applicant is a Sunni Muslim of Bengali ethnicity who speaks, reads, and writes Bengali/Bangla. The applicant has never married nor been in a de facto relationship. The applicant’s father, mother, and one of his sisters reside in Bangladesh; the applicant’s brother resides in [country], one of the applicant’s sisters resides in [country], another in Australia, and another in [country]. The applicant is in contact with his relatives outside Australia once a month by phone. The applicant lived at one address in [Sylhet], Bangladesh from [birth] until December 2015. The applicant attended primary and secondary school, and graduated Year [grade] from [High] School, Sylhet. The applicant does not provide the dates for his study. The applicant owned [a] store called ‘[name]’ in Sylhet, Bangladesh from March 2010.

13. In the application forms, the applicant states that he came to Australia to see his sister, who is suffering from [medical condition]. The applicant states that police act according to the instructions of Awami League Supporters, and that he faced intimidation and harassment and, after an attack on his business in October 2015, came to Australia to see his sister in December 2015.

14. The applicant provided a written statement setting out his claims for protection as follows (not corrected for spelling or grammar):

    I have political affiliation and opinion supporting the Bangladesh Nationalist Party having involved with Bangladesh Jatiotabadi Chatra Dal (JCD) and involved in political activities. I did not got to school after year 10 [grade] (I did not completed year [grade]). My family is a very active and strong supporters of the BNP. In 2003, I joined the student wing of the BNP, called JCD in our [locality]. From 2003-2005, I served as a member of the JCD actively involved in political campaigning and mobilising the youths to support the BNP.

    During 2003 Union election, I actively involved in supporting [named person] who was a BNP supporter. In 2005, I became a member of JCD of [my area]. After 6 months of my membership, I was selected as a member of the selection committee of the JCD which I hold between 2005-2007. In 2007, I became a member of JCD of [another area] in Sythet. During the 2008 general election, I actively involved in political activities including door-to-door election campaigning, mobilising youths in participating in meetings to get more votes for our BNP [candidate]. Unfortunately, he lost the election and the Awami League candidate [won] the election.

    In 2010, I was elevated to the position of treasurer of [the second area], JCD treasurer. During the period, I had business and due to my political affiliation with the JCD, the Awami League supporters targeted my business and attacked 3-4 times. Despite the attack, I continued to involve with my political activities. When [three members] were abducted we organised demonstration against that and I actively involved in helping the part to organise the demonstration. Though, I came to Australia in December 2014, I did not think of applying for a protection because during that time, the main leaders and activists of the BNP have either in jail or in hiding and it was my view, as a young and active member of the JCD, young people like me has responsibility to mobilise the party membership and keep the party's activities intact in Bangladesh.

    The BNP's support base is built on the support and activities of people like me and therefore, did not want to stay in Australia at that time and decided to go back and involved with party activities despite facing intimidation and harassments, and attacks. In October 2015 also the Awami League supporters attack my business. During that time, my sister was suffering from significant health issues and she invited me to be with her for some time. I came to Australia on 04 December 2015 and stayed with my sister. I did not have any intention at that time to apply for a protection visa because I always wanted to go back to involve in political activities because I have a political profile and due to my active political involvement, I was elevated from JCD from Ward and then to Union level and then to Thana Level. People in my locality looked at me as a future leader who would go to the national level. Due to that, I always wanted to be with my people and BNP supporters to enter national level politics at the appropriate time. However, on 02 May 2016, my family in Bangladesh called me and informed that the Awami League supporters came home looking for me. My parents said the Awami League supporters threatened and warned them that once they found me they would kill me. Due to the attack, there were minor damages caused in our home and the Awami League supporters pushed my parents as well. On 11 May 2016, I received information that my party colleagues and friends were arrested on 11 May 2016. As a result of the, sudden change of situation, my family including my sister in Australia started worrying about me and my safety if I returned to Bangladesh at this point of time. My brother-in-law took me to [Immigration] Lawyers to seek immigration legal assistance and then instructed them to lodge a protection visa because the political and security situation in Bangladesh is very dangerous now.

    The Awami league members and supporters target BNP activists, particularly targeting the BNP whom they think that would go to national level of politics. I continue to involve with political activities in Australia as well. I fear I will be targeted and seriously harmed due to my political opinion and activities supporting the BNP party and holding opinion against the Awami league party. I fear I can not get protection form the authorities in Bangladesh because the authorities including the police, RAB continue to target and kill BNP activists. I fear even if I move to other parts of Bangladesh I will continue to face harm because I will continue to involve with political activities supporting the BNP.

15. The applicant provided to the Tribunal an additional statement dated 23 February 2021, stating that the applicant notes the Department delegate accepted that the applicant is a member of the Bangladesh Nationalist Party (‘BNP’), the applicant held local positions with the BNP and that the applicant worked for BNP candidates. The applicant requests that the Tribunal consider the serious issues faced by BNP members who challenge the Awami League and reiterates the fact that the applicant is a member of the BNP with a significant adverse profile. The applicant states that the threat from attacks or serious harm against BNP members continues because the Awami League won the election in 2018. The applicant states that his political profile for the refugee criterion should be assessed from ‘how the people who intend to inflict harm would perceive’; the applicant states that the Awami League would perceive the applicant as a potential threat due to the applicant’s ‘past, present and future political profile’. The applicant states that after leaving Bangladesh he continued to be involved in political activities with the BNP Australia branch, participating in meetings, various protests and other events from 2016–2020. The applicant currently holds the position of Assistant Secretary of the Jatiotabadi Samajik Shangskritk Songthaa (JASAS). The applicant states that one of the applicant’s friends in the BNP was recently arrested due to his involvement with the BNP. The applicant attached evidence of this arrest. The applicant again states that he has a political profile which makes him a target for the Awami League. The applicant concludes that if forced to return to Bangladesh, based on current country information, political profile and other evidence, the applicant will face serious harm, and cannot receive effective protection, and requests that the Tribunal recognise the applicant as a refugee.

16. The applicant provided the following documents to the Department:

    ·A letter of support from [an official] of Bangladesh Jatiotabadi Dal (BNP) Australia, dated [October] 2016. The letter states that BNP works under the umbrella of the mainstream community, and BNP’s objectives is to foster Bengali culture within the mainstream community for Bengali native speakers in Australia. The writer states that they are aware that the applicant lodged a protection visa application. The letter states that violence is endemic in Bangladesh’s political culture and has given rise to many claims for protection. The letter states that the applicant participated in many anti-government rallies and protests against undemocratic and inhumane torture on political leaders and activists, including reporters and editors by the current ruling government in Bangladesh. The letter further states that the applicant has suffered violence by the ruling party and will be in danger if he returns to Bangladesh. The letter concludes that the applicant has been involved in community activities and is familiar with Australian culture, is a hardworking, punctual and sincere worker, displays honesty and integrity and could be a potential asset for Australian society.

    • A letter from [a] Consultant Psychiatrist of [a] Clinic dated 13 December 2016, addressed to ‘whosoever it may concern’. This writer states that the applicant attended an appointment on 13 December 2016. The letter states that the applicant has developed depression and anxiety since May 2016 which has progressively worsened over time. The letter states that this occurred in the context of the applicant’s family being threatened by people of different political ideology. The letter states that the applicant developed insomnia, nightmares and is constantly worried for his safety. The letter concludes that the applicant has been advised to attend appointments with a psychologist and to take anti-depressant medication.

17. The applicant provided the following documents to the Tribunal:

    • A letter of support from [an official] of BNP Australia, dated [February] 2021, stating that the applicant is personally known to the writer. The letter states that the applicant arrived in Australia in December 2015 and has been working with BNP Australia since June 2016 and is now Assistant Secretary of the JASAS. The letter further states that the applicant has paid membership fees for the organisation from June 2016 to February 2021, including admission fees.
    • A letter of support from [an official] of BNP, [District], former Member of Parliament, dated [December] 2019 stating that the applicant is an ‘active political activist’ of BNP Australia. The writer states that the applicant is a valuable member, enthusiastically involved, vocal, efficient in arranging political and socio-cultural programs, well behaved, has a sound personality, creative, sincere, with amicable disposition, a mature mindset, amiable personality and is well liked by the party members and leaders in the party. The writer strongly believes that the applicant is at high risk in Bangladesh due to his political activities, and wishes the applicant the best of luck.
    • A letter of support from [an official] of JASAS Australia, dated [March] 2020. The letter states that the applicant is [an official] of JASAS – cultural wing of BNP. The writer states that the applicant was a well organised and responsive politically in the various political and social activities, proved his skills, had a strong ability, would be an excellent leader, is hardworking, creative, sincere, and very well behaved with an amicable disposition and mature mindset. The writer further states that in the 2018 election at least 17 people were killed in the elections. The writer believes that the ‘Government party rigged vote at 29 December night to ensure their win’. The letter further states there were; allegations of voter intimidation, restrictions on opposing polling agents and several candidates seeking a re-poll’, stating that ‘there are concerns about the credibility of the Bangladesh elections’. The letter concludes that the applicant has an amiable personality, is well liked by the party members and leaders in the party, and the writer strongly believes that the applicant has a high risk of danger in Bangladesh due to his political activities.
    • A letter of support from [name deleted], International Affairs Secretary, Central Committee, Zia Shishu Kishore Mela, dated [March] 2020. The letter explains that Zia Shishu Kishore Mela is a children and youth forum named after Ziaur Rahman, ex-president and father of nationalism in Bangladesh, whose objective is ‘to make our new generation creative and responsible citizen of the country’. The letter states that the applicant is hard-working, sincere, creative, well-behaved, has an amicable disposition, a mature mindset, amiable personality and is well like by the party members and leaders. The letter states that in the last election ‘there are serious allegations of voter intimidation, restrictions on opposition polling agents and several candidates seeking a re-poll’. The letter further states that there are ‘concerns about the credibility of the Bangladesh elections’, noting that ‘hundreds of opposition workers were arrested in the months before the election on charges that the opposition said were ‘fictitious’’, further noting that many were attacked by ruling party activists. The letter concludes that the applicant is at risk in Bangladesh due to his political activities.
    • The applicant submitted a certified translation (and a copy of the original) of a document, dated 17 February 2021, stating that police arrested[a] former [official] of Sylhet District Chhatra Dal and member of the convening committee of the district Juba [Dal].
    • A letter from [a] Consultant Psychiatrist of [a] Clinic dated 13 December 2016, addressed to ‘whosoever it may concern’. This writer states that the applicant attended an appointment on 13 December 2016. The letter states that the applicant has developed depression and anxiety since May 2016 which has progressively worsened over time. The letter states that this occurred in the context of the applicant’s family being threatened by people of different political ideology. The letter states that the applicant developed insomnia, nightmares and is constantly worried for his safety. The letter concludes that the applicant has been advised to attend appointments with a psychologist and to take anti-depressant medication.
    • A certified translation (and a copy of the original) document, dated [February] 2021. The document is titled ‘Trade License’ and was issued for [a] shop called [name], the owner of the shop is listed as the applicant.
    • An income tax certificate for the applicant, dated [August] 2015, for the assessment year 2015–2016. 
    • A certified translation (and a copy of the original) of a document dated [February] 2021 setting out 24 members of the National Executive Committee: Nationalist (Jatiotabadi) Social Cultural Organisation (JASAS). The applicant appears on the list at number [deleted], whose designation is listed as [deleted]. 
    • A certified translation (and a copy of the original) of the front page of [a] leading Australian monthly community newspaper, dated May 2018. The translation reads ‘[deleted]’. 
    • Twenty photos of the applicant at various protests, holding signs and speaking at podiums. Some of the photos appear to be taken in Australia, whilst other photos appear to be taken overseas, depicting foreign police. The descriptions of the photographs include dates that range from 2012–2020. 

1. Provided to the Department by the applicant’s migration agent was his submission dated 24 October 2016. The submission provides references to recent reports of persecution against opposition party members including the BNP as reported in newspapers and from independent sources. Independent information is cited as indicating continuing human rights violations against BNP members and activists. Multiple submissions are made as to what this independent information indicates, including mistreatment, violence, and arrest by authorities and the Awami League towards the BNP members and supporters. Prior Tribunal decisions are referenced which find requisite harm for protection purposes in Bangladesh based on BNP political involvement.

2. Provided to the Tribunal by the applicant’s migration agent was a further submission dated 23 February 2021. It references and extracts pieces of independent information based on which submissions are made including that there are human rights abuses, injuries, deaths, arrests and mistreatment directed towards BNP activists and leaders by authorities and/or the Awami League.

   Independent information sourced by the Tribunal

3. The DFAT Country Information Report – Bangladesh, 22 August 2019 provides the following information on political opinions and violence in Bangladesh (underlining added):

   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.

   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.

   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).

   Being a member of a political party or one of its auxiliary organisations may assist in getting a job (see Employment). There are, however, a very large number of job seekers in Bangladesh, and such membership is unlikely to be the sole determinant of whether or not someone is able to gain employment. Social networks and personality-driven politics are important in Bangladesh. Payment of bribes to secure employment is also common, along with patronage and cronyism.

   DFAT has not seen evidence of forced recruitment to political parties, and considers it unlikely to occur. Parties hold membership campaigns each year, through which parties recruit large numbers of members. According to a 2018 survey by the Asia Foundation, around 80 per cent of Bangladeshis have a limited interest in politics, and those that do are not necessarily members of any party.

   Since independence, the two parties have, for the most part, alternated in the roles of ruling party and opposition. The ruling party’s affiliated organisations have historically controlled all public institutions while that party has been in power, and both the AL and BNP have used the state machinery against government opponents while in office.

   Since it came to power in 2008, the AL has considerably restricted the activities of opposition political parties, particularly the BNP and JI (see relevant sections). These restrictions have included:

   - using police and other security forces to arrest thousands of opposition political party members and supporters, often in conjunction with political demonstrations;

   - using police and other security forces to prevent opposition parties from holding meetings and demonstrations; and

   - pressuring opposition candidates to withdraw from local and municipal elections, including through preventing them from submitting election nominations.

   Authorities have also prevented opposition figures from leaving the country. Many, including former BNP Prime Minister Khaleda Zia, have faced legal sanction, including sedition charges. In October 2017, authorities issued two further arrest warrants for Khaleda Zia, who was at the time travelling outside Bangladesh and who has spent extended periods in custody.

   While the frequency of political blogging has reduced within Bangladesh, most political blogs about Bangladesh are now written outside the country (see Media). Major political parties have a strong presence abroad, including in Australia. It is unclear whether local party activists based abroad actively monitor social media and/or report back to party headquarters in Bangladesh, but DFAT assesses that this is possible.

   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.

   …

   Bangladesh Nationalist Party (BNP)

   The BNP was founded in 1978 following the assassination of President Mujibur Rahman, and was established on a platform of Bangladeshi nationalism and Islamic identity. At its founding, and at the 2014 election, it cooperated with JI. In the lead-up to the 2018 election, however, BNP attempted to distance itself from JI as a way to demonstrate that it did not support extremist ideology.

   The BNP Standing Committee is the top decision-making body of the party. Various secretaries have responsibility over political portfolios, such as foreign affairs or information, within that body. Various committees at the district and upazila level also exist. As with the AL, Political Auxiliary Organisations play an important part in the membership activities at the grassroots of the party.

   Like the AL, 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. BNP members who are not Bangladeshi citizens (but who live in diaspora communities) claim that they have had visa applications to visit the country denied. DFAT does not know whether diaspora organisations report back to the domestic party on activities of their local BNP branch.

   BNP figures allege that they have been subjected to enforced disappearance after raids on private homes and party offices (see Enforced or Involuntary Disappearances). While such allegations typically involve houses being raided at night, daylight raids on party offices have also been reported. The BNP claims that authorities have frequently arrested their supporters during protests for alleged criminal damage or assault on police with little supporting evidence, while alleging that violence against BNP supporters perpetrated by AL members occurs with impunity.

   Former BNP Prime Minister Khaleda Zia was convicted and sentenced to five years’ imprisonment on graft charges in February 2018, and separately sentenced to seven years’ imprisonment for corruption in October 2018. The BNP claims that the charges against Zia are politically motivated and that her treatment while in prison has been in breach of her human rights.

   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.[1]

   [1] DFAT, Country Information Report – Bangladesh, 22 August 2019, pp. 24–27, paras [3.61]–[3.70], [3.77]–[3.82].

   Hearing, credibility, findings and assessment

4. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

5. In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

6. The Tribunal is satisfied that the applicant is a citizen of Bangladesh and accordingly his claims will be assessed against Bangladesh.

7. The applicant in the hearing was, with the exceptions outlined further below, broadly consistent in claims of his progression and involvement through the BNP and its youth wing from before 2003. The applicant indicated that before this point in time he had some informal involvement in the youth wing but formally joined the youth wing at the Ward level in 2003. The applicant provided detailed evidence in the hearing of progressing to political involvement at the Union level and then at the Thana level.  The applicant was able to convincingly describe these various geographical divisions of the party. The applicant gave evidence of party activities and positions held that was broadly consistent with the written claims. The applicant gave evidence in a way that caused the Tribunal to consider that he was recounting experiences and events which actually occurred, including because of the provision of peripheral and contextual detail.

8. A credibility concern for the Tribunal, however, was the fact that the applicant failed, upon repeated questions by the Tribunal as to positions held in the BNP at the Thana level, to provide evidence consistent with his written claims that he was elected Treasurer of the party in 2010. Instead the applicant indicated that he was on [a] Committee of the party.

9. When this inconsistency was put to the applicant he at first indicated that the Treasury role was the same as a role on the Selection Committee. When the Tribunal put to the applicant that this seemed unlikely given the names that the position described, the applicant gave evidence that he had not mentioned this because he was providing details of positions held sequentially from 2008, and had not therefore provided a response as to the position that he held in 2010.

10. The Tribunal’s questions were not qualified in this way and the Tribunal has concerns at the failure of the applicant to indicate in response to multiple questions that he held the relatively significant position of Treasurer.

11. However, notwithstanding this concern, which could be explained by some level of exaggeration by the applicant as to his positions within the party, this credibility concern does not cause the Tribunal to disbelieve that the applicant had not insignificant involvement with the BNP and its youth wing from before 2003 until coming to Australia for the second time in December 2015, including holding at least some leadership positions.

12. The applicant was consistent to a degree with written claims and evidence in the interview with the delegate as to harm faced as a result of his BNP involvement. The applicant referred to multiple attempts to attack and ransack his shop by elements of the Awami League. However, some difficulties in relation to this evidence include the fact that in the hearing the applicant indicated that the first attack occurred in 2012 with his written claims indicating that 3 to 4 attacks occurred in 2010. The applicant explained this inconsistency in the hearing by indicating that there were multiple attacks, that he had not carefully compiled evidence and remembered past attacks because he had not come to Australia in December 2015 with the intention of applying for a protection visa (and therefore had not put together a coherent timeline of events).

13. While the Tribunal has some concern at this inconsistency, it was persuaded with the truth of key accounts given by the applicant in the hearing of particular attacks on his shop. The Tribunal was satisfied that the applicant was recounting events from actual experience that did occur.

14. The applicant gave evidence in the hearing that he had participated in many demonstrations. The Tribunal explored harm that the applicant and his colleagues faced in these demonstrations. The applicant gave believable evidence, consistent with independent information, of regular attacks towards opposition protesters by the Awami League and police who would beat protesters with batons. The applicant referred to one incident, which the Tribunal found credible, of being slightly injured in one of these baton attacks.

15. The applicant gave evidence in the hearing that at the end of 2014 he and BNP colleagues undertook a campaign which included distributing leaflets criticising the local Awami League [MP]. The applicant indicated that individuals from the BNP who were involved in this activity with the applicant had false cases lodged against them after the applicant came to Australia for the second time in December 2015 and being imprisoned in the first half of 2016.

16. The applicant also indicated that in the first half of 2016 the Awami League MP had associates threaten the applicant’s family that harm would come to the applicant.  This was one of the catalysts for the applicant deciding to apply for the protection visa in the first half of 2016.

17. The applicant also gave evidence in the hearing that in the first half of 2016 his best friend who was in the BNP was killed and threats were made to the applicant’s family that the applicant would suffer the same fate on return, again being a catalyst for the applicant deciding in May 2016 to apply for the protection visa.

18. The Tribunal has concerns with this specific evidence, as put to the applicant in the hearing, because he failed to make the claim in either of his written claims or in the interview with the delegate. The applicant had failed to previously claim that his best friend who had been in the BNP had been killed and that his family were warned that the same fate would happen to the applicant. All the written claims indicate is that the Awami League threatened that harm would come to the applicant. The Tribunal has some credibility concerns in relation to this specific claim as a result of it not previously being made.

19. The applicant also gave evidence that he did not apply for protection on his first visit to Australia in December 2014 because, after the election that had been uncontested by the BNP in January 2014, there was speculation that fresh elections would be called and, as a result, the BNP moderated their adverse and violent behaviour.  It was not until later that the BNP began to act in a harsh and persecutorial way including lodging false cases against opponents.

20. The applicant also indicated that he had a business, family and land in Bangladesh and wanted to return to continue his life there.

21. The Tribunal considers the cumulative impact of the credibility concerns identified above, including the failure by the applicant to lodge an application for a protection visa on his first visit to Australia, and the delay doing so upon his second visit.

22. The cumulative impact of the credibility concerns do not overcome the relatively detailed and convincing evidence of the applicant as to not insubstantial involvement in the BNP and its youth wing since before 2003 until coming to Australia in December 2015. The Tribunal is satisfied that the applicant was a member of the BNP/youth wing during this period including having active involvement and some leadership positions. The Tribunal is satisfied that the applicant had at least some adverse profile known to the local MP and/or his Awami League associates which caused, at least on some occasions, a targeting of the applicant’s shop.

23. The Tribunal is satisfied that in at least some of the protests in which the applicant and his BNP colleagues were involved that there was violence perpetrated against them by Awami League participants and police. This is consistent with independent information.

24. The Tribunal accepts that there are reasons for the applicant not applying for a protection visa on his first trip to Australia in December 2014 and his delay in applying for the protection visa on his second visit in December 2015 until May 2015 that are not undermining of the applicant facing a real chance of serious or significant harm due to his political involvement on return to Bangladesh.

25. In part, this is because the Tribunal accepts and considers this is because the applicant was motivated to continue his life in Bangladesh given family, work and financial connections notwithstanding some risk of harm. The Tribunal considers that the applicant was willing to take the risk of a certain level of harm, particularly a risk above a real chance of harm. The Tribunal considers that the applicant came to the view in the early part of 2016 that the risk of harm had risen to a level above a real chance of harm that was no longer acceptable to him.

26. The Tribunal accepts that there was some increase in the level of adverse action perpetrated by the Awami League and authorities as the time from the January 2014 election increased and the prospect of a repeat election became more remote.

27. The Tribunal accepts on the evidence, including statements by third parties, of the applicant’s not insignificant involvement in the BNP and its cultural wing since his arrival in Australia in 2016. This activity is consistent continuation of the nature and level of the applicant’s claimed involvement in Bangladesh.

1. The Tribunal is satisfied that the applicant was involved politically in Bangladesh in broadly the circumstances claimed, and that his political activity with the BNP in Australia has been for genuine political reasons, and not motivated principally to facilitate the application for the protection visa.

2. The Tribunal accepts that if the applicant returned to Bangladesh he would continue to wish to have a significant degree of involvement in the BNP, including holding leadership positions and participating in demonstrations.

3. The Tribunal is persuaded on the independent information before it that the level of the applicant’s past activity, positions and involvement in the BNP, and the profile that it has caused the applicant, result in the applicant facing, cumulatively considered, a real chance of serious or significant harm on return to Bangladesh because of his intention to continue that activity.

4. The Tribunal considers that the applicant would face the risk of the requisite degree of harm by virtue of his continued desire to participate in opposition political demonstrations. The DFAT information indicates that those who participate in opposition demonstrations face a higher risk of arrest and physical violence, both from security forces and ruling party activists.  This is considered cumulatively with the following.

5. The Tribunal is satisfied that there has been at least some specific targeting of the applicant in the past by Awami League activists, including violence directed towards the shop, with the potential for this to continue if he was to return and remain politically active as the Tribunal considers that he would.

6. The Tribunal considers that the serious harm that the applicant is at a real risk of facing includes significant physical harassment of him and physical ill-treatment of him. The Tribunal considers that the reason for the harm would be the applicant’s political opinion in support of the BNP, in opposition to the Awami League Government. The Tribunal considers that this reason would be the essential and significant reason for the harm. The Tribunal considers that the persecution would involve systematic and discriminatory conduct.

7. The Tribunal considers that the real chance of persecution applies to all areas of Bangladesh. Although it is true that if the applicant relocated within Bangladesh he would not face harm because of knowledge of past BNP opposition activity or based on any targeting of him, nevertheless the Tribunal considers that the applicant would be involved politically with the BNP in any part of Bangladesh to such a degree that would warrant adverse attention from authorities and Awami League activists, including the risk of harm in protests.

8. The Tribunal is satisfied that the applicant does not have the right to enter and reside in any third country.

9. In summary, the applicant has a well-founded fear of persecution for the reasons set out in s.5J(1) of the Act. 

10. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    DECISION

11. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

    David McCulloch
    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.

    …