1701684 (Refugee)

[2020] AATA 3828

1701684 (Refugee) [2020] AATA 3828 (26 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1701684

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Roslyn Smidt

DATE:26 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 26 August 2020 at 12:48pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh National Party – Jatiotabadi Chhatro Dal – targeted by members of the ruling Awami League – political activities prior to leaving Bangladesh – involvement with BNP Australia – credibility concerns – vague and contradictory evidence of harm suffered – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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 dependant.

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 9 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 is a citizen of Bangladesh applied for the visa on 23 June 2016. The delegate refused to grant the visa because he found much of his evidence lacked credibility.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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–5LA, which are extracted in the attachment to this decision.

7. 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

8. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   BACKGROUND

9. The applicant is a [age]-year-old single man of Muslim faith from Noakhali in Bangladesh. His father is deceased. His mother and [siblings] reside in Bangladesh. He completed a [qualification] in Noakhali in January 2013. He departed Bangladesh [in] April 2013 and travelled to [Country 1] then on to [Country 2] where he arrived [in] May 2013. According to a stamp on his passport he was granted permanent residence in [Country 2] [in] May 2014, apparently after being granted protection. He appears to have resided in [City 1] throughout his time in [Country 2].

10. The applicant first arrived in Australia [in] March 2015 to attend Cricket World Cup matches. He travelled between Australia and New Zealand until [April] 2015 when he returned to [Country 2]. He was granted a second visitor visa on 13 April 2016 and returned to Australia [in] May 2016. He applied for protection on 23 June 2016.

    SUMMARY OF CLAIMS AND FINDINGS

11. The applicant claims that he is at risk of being detained, tortured, killed or facing other forms of serious or significant harm if he returns to Bangladesh because of his past and present membership of the Bangladesh National Party. He claims that he fled Bangladesh in 2013 after being targeted by members of the ruling Awami League and that members of the party still wish to harm him.

12. For the reasons set out below I did not find the applicant to be a truthful or a credible witness. I do not accept that he fled Bangladesh to avoid harm from the ruling Awami League and I find that he became involved with the BNP in Australia not out of political commitment, but in order to enhance his claim for protection.

13. The applicant has residency in [Country 2]. He claims that he obtained this by successfully claiming protection. He also claims that he was targeted by criminals in [Country 2] and cannot return there because his life would be at risk. As I do not accept that the applicant meets the criteria for protection in relation to Bangladesh, it is not necessary to consider these claims.

    COUNTRY INFORMATION[1]

    [1] Unless otherwise stated this overview is based on information in DFAT Country Information Reports on Bangladesh dated 20 October 2014 and 22 August 2019

14. By way of context, the BNP and the Awami League are the major political parties in Bangladesh and have both held power at different times since the country gained independence. They both have a history of repressing the opposition when in power and mounting large and sometimes violent protests or strikes when in opposition. Political violence is often associated with elections. The Awami League has been in power since 2009.

15. In October 2014 DFAT advised that the worst violence in recent years occurred around the time of the 2014 elections and were associated with verdicts of the International War Crimes Tribunal regarding crimes committed by members of the Jamaat-e-Islam Party (JI) during the war of independence. Many members of the BNP and JI were arrested during protests and were released on bail or without charge shortly after being arrested. The majority were treated humanely during detention.

16. DFAT assessed that supporters or members of political parties faced a low risk of being detained during protests and were not at risk of being arrested or living in fear of violence on a day-to-day basis due to their political affiliations. Opposition leaders or members with high profiles faced a higher risk of arrest than ordinary members, but the risk of such people being individually targeted for arrest and detention due to engagement in general political activities remained low.

17. DFAT’s 2019 report suggests that the situation for members of the opposition has deteriorated since 2014. According to their assessment 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 Awami League (AL) activists, particularly during times of heightened political tension, including elections. Members of opposition political parties and auxiliary organisations but who do not engage in political activities or demonstrations face a lower risk of arrest, although this may vary according to location and timing.

18. BNP figures allege that they have been subjected to enforced disappearance after raids on private homes and party offices. The BNP also 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.

19. DFAT assesses that allegations of violence against BNP figures are credible, and that high-profile figures are more likely to be targeted by charges that may be politically motivated. DFAT assesses that any BNP member who actively opposes the AL government may be targeted for criminal charges, especially if they are involved in violent protests.

20. DFAT’s 2019 report states that Bangladesh had a very large diaspora and tens of thousands of Bangladeshis enter and exist Bangladesh every year. According to their assessment that it is unlikely that the authorities have the capacity to check on or monitor each of these people and the vast majority of Bangladeshi citizens can enter the country without incident. The return of BNP members and others particular political profiles may be noted, but DFAT is not aware of any returnees being detained on arrival because of activities conducted abroad.

21. With regard to the issue of documents from Bangladesh DFAT assesses that the use of fraudulent documents and fraudulently obtained genuine documents is widespread in Bangladesh. A UK Home Office Report dated March 2020[2] notes several reports which state that fraud and corruption are commonplace at all levels of government and in some private organisations.

    CLAIMS AND EVIDENCE

    [2] UK Home Office Country Information Note Bangladesh: Documentation March 2020

    Submissions to the Department

22. In a submission dated 23 June 2016 the applicant claimed that he had joined the BNP in 2005 when the party was in power. The Awami League came to power after elections in December 2008. In 2009 the applicant became the [Position 1] of the BNP Chatradal (student wing). Following this he was targeted by the Awami League. Sometime later he became aware that the Awami League planned to kill him, so he moved to Dhaka for a few months. In Dhaka he moved from place to place, but he was constantly watched by the Awami League. When they could not find him at his home in Noakhali they used filthy words to his mother and [siblings]. He decided to leave Bangladesh. He travelled on to [Country 2] where he was granted political asylum in 2014 as a result of his membership of the BNP.

23. The applicant claimed that he did well in [Country 2] and established two successful businesses but left [Country 2] because he was being threatened by mafia members and he feared for his life.

24. The applicant obtained a visa for Australia on 13 April 2016 but decided to return to Bangladesh first. He arrived in Dhaka [in] May 2016. Two days later he travelled to Noakhali where he stayed at his mother’s home. At 11 pm on [a date in] May 2016 his family was informed that a group of Awami goons were coming to the house. He escaped before they arrived. When the group attacked the house a friend who was in the army informed the police who rushed to his home at which point the attackers ran away. After failing to locate the applicant at his home the Awami League lodged a false case against him. At some time after he left Bangladesh the police raided his home.

25. The applicant returned to [Country 2], but his life was still in danger from the mafia, so he left the country [in] May 2016 and travelled to Australia.

26. The applicant was interviewed by the delegate on 28 November 2016. He repeated the claims made in his written submission.

27. When asked about his problems in Bangladesh he spoke about the general violence between political parties in Bangladesh. When pressed for details he said that members of the Awami League had attacked or attempted to attack him on four occasions in Noakhali. On two of these occasions he was not at home, on the other two he was severely beaten. He relocated to Dhaka where he moved houses frequently, but the Awami League always managed to locate him. He was not attacked in Dhaka because he always managed to leave before they arrived. Because of this he left the country. He again claimed that he returned briefly to Bangladesh in May 2016, but he was forced to leave because the Awami League still wanted to harm him. He said that that false case against him involved an allegation that he was keeping arms in his house.

28. On 19 December 2016 the Department received a number of photographs which show the applicant and a number of people at what appears to be a meeting. A banner on the wall indicates that it is a meeting of the Bangladesh Jatiotabadi Dal Australia. The photographs appear to have been taken at the same time.

29. The delegate refused the application on 9 January 2017. He accepted that the applicant was a member of the BNP and held positions in the local branch of the party. However, he did not accept that the applicant had been targeted or attacked by members of the Awami League or that he fled Bangladesh because he feared harm from the Awami League. The applicant’s involvement with the BNP in Australia was not mentioned in this decision.

    Submissions to the Tribunal

30. On 1 February 2017 the applicant provided a copy of the delegate’s decision and a brief submission in which he stated that his claims were true and submitted the delegate’s understanding of the situation in Bangladesh was inaccurate.

31. On 15 July 2020 the applicant’s representative provided a submission which reviewed the evidence provided earlier and the following documents:

    ·     A letter dated [in] July 2020 from [Mr A], [Office Bearer 1] of the BNP Australia and [Mr B], [Office Bearer 2] of the BNP in Australia. The letter states that the authors have known the applicant since 2016, that he is a member of the BNP and that he has made a significant contribution to the party. It states that the applicant and his family had received many threats in Bangladesh and have no security there.

    ·     A document from the Bangladesh Jatiotabadi Dal Australia dated [in] January 2020 which states that a new convenor committee had been appointed for the next 90 days. It lists [number of] co-convenors and [number of] honourable members. The applicant is listed as an honourable member.

    ·     A report from the International Committee of the Fourth International dated 27 March 2013.

    ·     An article entitled ‘Political Persecution in Bangladesh’ which appeared in the Brown Political Review on 18 January 2015.

    ·     An Asylum Research Centre (UNHCR) report dated 15 December 2016 which draws on a wide range of sources and reports on a number of developments and human rights issues in Bangladesh.

    ·     A Human Rights Monitoring report by Odhikar which covers the month of February 2018. Odhikar appears to be a Bangladeshi NGO.

    ·     An article entitled ‘Supporters of Bangladesh Nationalist Party (BNP) shout slogans during a demonstration in Dhaka, Bangladesh’ which appeared in a publication called Pulse on 23 March 2018.

    ·     An article dated 2 January 2019 on the 2018 elections in Bangladesh. The source of this article is unclear.

    ·     A copy of a photograph and an article published in [Publication 1], which appears to be an Australian Bangladeshi publication, in [month, year]. According to the accompanying translation the event was a BNP meeting. The applicant appears in the photograph. The article names 10 past and present office-bearers. The applicant’s name does not appear in the article.

    ·     A copy of a photograph and an article published in [Publication 2], which appears to be an Australian Bangladeshi publication, in [month, year]. According to the accompanying translation the event was a BNP protest in a public centre in [Suburb 1]. The applicant appears in the photograph and is named in the article as an ordinary member of the party.

    ·     A copy of a photograph and an article published in [Publication 3], which appears to be an Australian Bangladeshi publication, in [month, year]. It reports on the protest mentioned above. Numerous office-bearers are named in the article. The applicant appears in the photograph and is named in the article as an ordinary member of the party.

    ·     A copy of a photograph and an article published in [Publication 4], which appears to be an Australian Bangladeshi publication, in [month, year] which reports on a protest relating to the search for [a named individual]. The applicant apparently appears in the photograph, although his face is obscured. Numerous office-bearers are named in the article, but the applicant’s name does not appear.

32. On 21 July 2020 the applicant’s representative provided the following documents:

    ·     A letter dated [in] July 2020 from [Mr C], who identified himself as a barrister, former Member of Parliament and [Office Bearer 3] of the BNP which states that the applicant was the [Position 1] of the Jatiotabadi Chhatro Dal in [local branch] in Noakhali and was targeted by Awami League members because of his political activities.

    ·     A letter from [Mr D] who identified himself as [Office Bearer 4] of the BNP Youth Wing which states that the applicant joined the BNP in 2006 and is a well-known member of the group and that his life would be in danger if he returned to Bangladesh.

33. The applicant attended hearings of the Tribunal on 22 July 2020 and 21 August 2020. Unless otherwise stated that evidence set out below was provided on 22 July 2020.

34. The applicant confirmed that he had completed his studies in Noakhali in January 2013. He said that he had lived at his parental home during this time. He joined the BNP in 2006 and he became [Position 1] of his local branch of the Jatiotabadi Chhatro Dal which was the BNP student wing in 2009. He explained that there were branches in each local government area in Noakhali which was a big city with many local government areas. His branch had about [number] members. His role included gathering members of the group together and maintaining good communications between his group and higher levels of the organisation. He followed instructions of more senior members when carrying out his duties. He also participated in protests and attended about 10 to 15 events during his last year in Bangladesh. He was also a member of the university branch of the group, but he was not an office-bearer of that group. He never joined the BNP proper.

35. The applicant said that BNP protests were always attacked by the police and claimed that he was attacked and beaten by the police a couple of times. He also claimed that he was attacked many times by members of the Awami League. When asked for details he said that he was first attacked by members of the Awami League student wing in 2006 when the BNP was still in power and that he was beaten by police after the elections in 2009, then in early 2010 and again in about 2012 or 2013 prior to the elections.

1. I asked the applicant if he had experienced any other problems before going to Dhaka. His response was confused. He initially said that nothing had happened to him, but then said that people from the Awami League were paying visits to his home and making threats, so he had to go into hiding. When asked for more information he said that people from the Awami League had come to his house twice asking for him. He was not there at the time, but he realised that the Awami League wanted to kill or harm him. I asked when he had ceased living at his parental home. He said that he had never felt safe after the Awami League came to power in 2008 and he had spent much of his time away from home living with friends and relatives. I noted that the applicant had been a student until January 2013 and asked how he had continued his studies. He said that he attended intermittently.

2. I noted that the evidence which the applicant had provided regarding his problems during this period appeared to differ from the evidence he had provided in support of his initial application. He said that it was a long time since these events and he may have made some mistakes due to problems recalling past events.

3. I asked how the applicant’s branch of the Jatiota Badi Chatra Dal had operated during the time the Awami League was in power. He said that they operated mostly in secret and added that many senior members were in prison or in hiding.

4. I advised the applicant that while I was aware of violence during elections and demonstrations, it was not my understanding that low-level members of student groups were being sought out and attacked in their homes during the time he claimed to be active in the party. I noted that in 2014 DFAT assessed that supporters or members of political parties in Bangladesh were not at risk of being arrested or living in fear of violence on a day-to-day basis due to their political affiliations and leaders and high-profile members only faced a low risk of being targeted. The applicant disagreed with this assessment. He claimed that his local area was particularly significant because an Awami League leader had been raised there.

5. I asked the applicant about the time he spent in Dhaka before travelling to [Country 1 and Country 2]. His response was confused. He said that he had spent a few months in Dhaka. He was not involved in any political activities there, but he returned to Noakhali about five or six times to carry out political work and for personal reasons. When asked about the claim that he had been watched and pursued by Awami League members in Dhaka the applicant said that he had issues with Awami League members in Noakhali and they were looking for him in both Noakhali and Dhaka. He said that he knew that people from the Awami League were looking for him because friends from the Awami League had warned him that he was a target. They did this because despite their political differences they were still friends.

6. The applicant said that he remained in touch with his family and friends in Bangladesh while living in [Country 2]. They told him the situation was still bad and that people were being abducted or facing false cases. One of his teenage cousins was falsely accused of involvement in a crime and detained as a result. He said that while there was a Bangladeshi community in [Country 2] the BNP had no presence there and he had not been involved in political activities while living there.

7. The applicant said that he returned to Bangladesh in May 2016 because his life was threatened by a mafia group in [Country 2]. I advised him that I had difficulty understanding why he would return to Bangladesh if he had fled in fear in 2013 and his family and friends told him the situation was still dangerous. I also observed that [Country 2] was a very large country and it appeared that he could have relocated to avoid problems in [City 1]. He said he had considered going to [Country 3] as he already had a visa for that country, but the mafia could locate him anywhere in [that continent].

8. The applicant said that he spent two days in Dhaka in May 2016 before returning to Noakhali to stay with his mother. His branch of the BNP was still operating, but in secret and people were hiding as much as possible. [In] May 2020 about 10 to 15 members of the Awami League came to his home. I asked how he knew that they were from the Awami League. He said that he did not have problems with anyone else. When asked to describe what happened on that day he said that the men were circling his home so his cousin called the police who came in about 20 minutes, after which the men left. I observed that this suggested that the authorities were prepared to protect him from the Awami League. He said that they could not guard his house all the time. The applicant said that he went to stay with his [sibling] and other friends following this. Nothing further happened as nobody knew where he was. He left Noakhali about a week after the attack, spent two days in Dhaka and then returned to [Country 2].

9. I asked the applicant about the false charges mentioned in his earlier submissions. He said that before he left Bangladesh for the first time the police came to his home looking for him. They told his mother that there was an arms case against him. He said that this was the only information he had about his case. I observed that arms charges appeared to be a serious matter and it seemed likely that he would have been prevented from leaving the country if he faced charges of that kind. He said that the case had been lodged at the police station.

10. The applicant said he was not aware of any developments in relation to this case or anything else since he left Bangladesh in 2016.

11. I asked the applicant about his association with [Mr C] and [Mr D]. He said that he knew [Mr C] because he was the leader of the party. I noted that the applicant had been a relatively junior member of a small group within the BNP and it seemed unlikely that they would have personal knowledge of his situation. He said that while [Mr C] lived in Dhaka he had been born in Noakhali and he met him from time to time when he visited. He said that [Mr D] also lived in Dhaka and he knew him because he was friends with his brother.

12. The applicant’s representative submitted that the men could be contacted to confirm the contents of the letters. I observed that contacting witnesses outside Australia presented difficulties. I also noted that it was my understanding that it was relatively easy to obtain false documents or documents which supported claims which were untrue. The applicant agreed that this was correct but maintained that his documents were genuine and the information they contained was accurate.

13. At the hearing on 21 August 2020 I noted that [Mr D]’s letter said that he was [Office Bearer 1] of the BNP Youth Wing and claimed that the applicant had joined that group in 2006, which differed from his evidence that he had joined the student wing of the group in 2005, but had never belonged to the youth wing of the party. In response he said that there were many branches of the BNP including the student wing, which he had joined, and the youth wing. He said that [Mr D] might have been confused about which branch he belonged to.

14. I asked the applicant for information on his involvement with the BNP in Australia. He said that he had been involved with the group since he became aware of its existence in 2016. I noted that the articles he had provided all related to 2018. He said that he had been involved prior to 2018, but he had not kept any documents. I asked him to tell me about his activities prior to 2018. He said that he had submitted some pictures to the Department regarding his involvement in 2016. I advised him that I had not seen any photographs provided in 2016 but would try to locate them. I observed that he appeared to be having difficulty providing an account of his activities prior to 2018. He said that he had been involved in many meetings and discussions.

15. I asked the applicant about his involvement with the BNP in Australia following 2018. He said that he had been elected to the position of [Position 1] of the [State 1]branch of the party in 2018. He said that there was only one branch of the party in [State 1] and it has about [number] members and [number] office-bearers. He said that the group did not have a set schedule of meetings but met when the need arose. I asked about his recent activities as a member of the group. He said that activities had been on hold because of the pandemic. I asked him to tell me about the group’s activities in the second half of 2019. He said that he attended meetings, gatherings and protests, mostly in [Suburb 1] and [Suburb 2]. None of these events were held in public. Everything was done quietly indoors. He said that there were no public events because the BNP was a foreign party and they were not able to go out in public. I advised the applicant that there appeared to be no reason why BNP members could not conduct public activities in Australia. He maintained that public meetings were not possible or at least not appropriate but failed to explain why.

16. Following the hearing I located several photographs which were provided to the Department on 19 December 2016, about two and a half weeks after he was interviewed by the delegate. They appear to have been taken on the same day.

17. At the hearing on 21 August 2020 I advised the applicant that I had located the pictures and asked why he had made no mention of his involvement in politics in Australia during his interview with the delegate. He said that he had been attending BNP meetings before he was interviewed by the delegate, but he was a new member. He said that he thought that the pictures had been provided to the Department prior to his interview with the delegate, but he was not sure if this was the case.I advised him that the records showed that they were provided after the interview.

18. The applicant said that he wanted evidence taken from [Mr E] and [Mr A] who were members of the BNP in Australia. After some discussion at the July hearing it was agreed that the applicant’s representative would obtain written statements from these men and oral evidence would be taken later if required.

19. On 3 August 2020 the Tribunal received:

    ·Copies of the publications in which the articles listed above appeared.

    ·Several photographs of the applicant participating in BNP activities. All appear to have been held indoors apart from one which shows about 15 men walking through what appears to be a suburban park.

    ·A letter from [Mr E] who described himself as a long-term member and former convenor of the BNP. It states that he met the applicant in 2016. After that the applicant gradually became more active in the politics of the BNP and currently serves as [Position 1] for the BNP in [State 1]. It also states that he confidently believes that the applicant was involved with the Chatra Dal in Bangladesh and that his life would be at risk if he returned to his homeland.

    ·A letter dated 26 July 2020 on BNP letterhead from [Mr B], [Office Bearer 2] of the BNP in Australia. The letter states that [Mr B] has been involved with the BNP for a long time and can confirm that the applicant is involved with the group and has been selected as [Position 1] for the BNP [State 1] branch.

    ·A letter dated 28 July 2020 on BNP letterhead from [Mr A] which states that he is [Office Bearer 1] of the BNP Australia. It states that he has known the applicant since 2016 and that the applicant is [Position 1] of the [State 1] branch of the party.

20. At the hearing on 21 August 2020 I asked the applicant when in 2018 he had been elected to the position of [Position 1] of the BNP in [State 1]. His response was confused. He said that he had become a formal member of the BNP [State 1] in 2018, not been elected [Position 1]. He said that the party had not had a formal committee or office-bearers since June last year when a coordinating committee was formed which had not yet been approved. He said that someone called [Mr F] was the convenor of the group.

21. I asked if the applicant currently held the position of [Position 1] of the BNP [State 1]. He said that he had become [Position 1] of the group in about January 2020.

22. I observed that this appeared to be at odds with his earlier evidence. He maintained that he had become a formal member of the group in 2018 but had not become [Position 1] until 2020. He also said that he had not been elected the position of [Position 1] but he was performing the duties of that role until things were finalised.

23. I noted that the applicant had provided a document dated January 2020 which suggested that the BNP group he belonged to comprised [number] members about half of whom were co-convenors and half members and named him in the latter group. He said that the leadership had included him as a member on that list which had been compiled before he became [Position 1]. I asked why the group had [number] convenors. He said that they were a committee. He said that a new committee had been formed because the old one had expired, but it had not been elected or formalised.

24. [Mr E] gave evidence at the August hearing. He confirmed that there were currently [number] members of the NSW branch of the BNP. He said that [Mr F] was the convenor of the [State 1] branch and that there was a committee of some kind, but there were no office-bearers. He said that the group had not had a President of a full committee for a long time. I noted that the applicant had stated that he was the [Position 1] of the [State 1] branch of the party. [Mr E] said that he only knew him as a member, but he would have to check some documents to be sure. I asked if the BNP held public activities. He said that they had held public activities when he was involved, but he only went to some events now. I tried to establish exactly when [Mr E] had been involved with the local BNP branch without success. However, he did confirm that the group had held public activities after 2016 when the applicant became involved.

25. I asked [Mr E] about the applicant’s involvement with the BNP in Australia. He said that the applicant had been active for 3 or 4 years. He said that the applicant had collected a lot of members for the group and helped wherever there was a need. He said that he had seen the applicant at many programs including an occasion when he spoke at an event in [Suburb 1]. He added that he was not sure what position the applicant currently held in the party.

26. I asked the applicant to comment on [Mr E]’s evidence which suggested that he did not hold the position of [Position 1] in the BNP [State 1]. In response the applicant said that he had not claimed that the BNP [State 1] had a formal committee or that he had been elected to the position of [Position 1]. He said that the position he held was not a formal one, but the committee had asked him to play that role until the committee could be formalised.

27. I also asked him to comment on [Mr A]’s evidence that the BNP [State 1] held public activities which was at odds with his evidence at the July hearing. He said that when he gave evidence in July he had been explaining that the BNP in Australia did not hold activities which were comparable to the activities which the group held in Bangladesh. He said that there had been public events prior to the coronavirus pandemic and he had participated in those events.

28. [Mr A] also gave evidence at the hearing. He said that currently the BNP in [State 1] had a convening committee and [Mr F] was the Convenor, but there were no other office-bearers. He said that in 2019 there had been a full committee, but because of coronavirus the group is only in contact by telephone. I noted that the applicant had stated that he was the [Position 1] of the party. He said that the applicant had been a member of the committee in 2019 and was currently a member of the convening committee and that it had been agreed that he would be appointed to the position of [Position 1] when everything was finalised, but this could not be done until after the pandemic ended because it would require a meeting of about 100 people. I observed that the branch appeared to have a membership of [number]. [Mr A] said that members of the public could also attend.

29. I asked [Mr A] about the election procedures for the position of [Position 1]. He said that there was a vote but the party had to organise a meeting and propose people for positions such as [Position 1] so that people would accept them. I asked what would happen if most of the people at the meeting did not want the applicant to be the [Position 1]. He said that he would not get the position, but he was active in the group and he did not expect that there would be any disagreement.

30. I asked [Mr A] what he could tell me about the applicant’s involvement with the BNP. He said that the applicant joined in 2016 but had not become a formal member until 2018. [Mr A] could not recall when in 2018 the applicant had become a formal member but said that he had been active in the committee, organising people to come to events and sometimes gave speeches.

31. After taking evidence from [Mr A] I advised the applicant that I was unclear about the role he had played in the BNP in Australia. He said that he had become an activist/supporter in 2016 but had not become a formal member until 2018. He said that in order to become a formal member you had to be very active and then you would be offered formal membership. He repeated the evidence provided earlier about the current structure of the BNP and his role in the party.

32. I asked the applicant if he wanted to provide any further evidence. He said that he could arrange for me to speak to activists in Bangladesh about his activities. I observed that he had had ample opportunity to provide any evidence he wished in support of his case and had already provided statements from party members in Bangladesh, which I would consider when assessing his claims. I also observed that it was often difficult to establish the identity of witnesses located outside Australia. I advised him that I did not intend to contact witnesses in Bangladesh.

33. The applicant said that his uncle had been a local leader of the BNP who had returned to Bangladesh and had been harassed and imprisoned over the last four years. He said that he could provide evidence regarding his uncle’s situation. I observed that he had had ample opportunity to provide evidence regarding his uncle if he believed it was relevant and asked why he had not done so. He said that his uncle was not directly involved in his case, but he wanted to provide an example of what had happened to someone in a similar situation. I advised him that I was aware that leading members of the BNP in Bangladesh could face problems and accepted that his uncle might have experienced problems if he had been actively involved in politics during the last four years. However, as he himself had acknowledged, he was not directly involved in the applicant’s case and I was not prepared to delay finalisation of his application so that he could obtain evidence regarding his uncle’s situation.

34. The applicant’s representative made submissions at the end of the hearing. I had some difficulty understanding these submissions, but in essence he appeared to suggest that the confusion regarding the applicant’s role in the BNP [State 1] arose because the witnesses were from the BNP Australia, not the BNP [State 1]. I asked him why the applicant had not arranged for witnesses from the [State 1] branch, to which he responded that the witnesses who attended the hearing had the overall authority for the party in Australia.

    FINDINGS OF FACT

35. For the following reasons I did not find the applicant to be a truthful or a credible witness.

36. In the first place, I found his evidence to the Department and the Tribunal regarding his involvement with the BNP in Bangladesh vague, at times contradictory and significantly at odds with the country information on the situation in Bangladesh during the time of his involvement.

1. In his written submissions to the Department the applicant claimed that he was targeted by the Awami League after they came to power in 2008. However, when asked about his problems by the delegate he spoke about problems faced by BNP members in general. When pressed for details of the problems which he himself experienced he said that members of the Awami League had come to his home on four occasions and on two of those occasions he was beaten, causing him to flee to Dhaka. When asked about his problems at the hearing he said that members of the Awami League had beaten him many times. However, when asked for more information he said that members of the group often visited his family and made threats but only mentioned one beating in 2006. At the hearing he claimed for the first time that he had been beaten by the police on several occasions between 2009 and 2013 and that he had been in hiding for much of the period between 2008 and 2013 when he left for Dhaka. In my view the applicant’s inability to provide a broadly consistent and reasonably complete account of the problems he faced prior to leaving Bangladesh is a strong indication that he has not provided an accurate account of his experiences.

2. In reaching this conclusion I have considered the passage of time since these events occurred and he spoke to the delegate. In these circumstances it is not surprising that he would have problems accurately recalling in detail all the events which occurred between 2008 and 2013 when asked about them at the hearing. However, I do not accept that he would have failed to mention that he was beaten by the police on a number of occasions or that he was in hiding for much or most of the time between 2008 and 2013 in his written and oral submissions to the Department if these claims were true. Nor do I accept that he would have failed to recall the four specific incidents which he told the delegate caused him to flee to Dhaka when I asked him about his problems during the hearing. Furthermore, as discussed below these are not the only problems with his evidence.

3. Secondly, the applicant’s description of the problems which he and other members of the BNP faced prior to his departure for [Country 1 and Country 2] in 2013 is significantly at odds with the country information on the situation in Bangladesh at the time. As discussed above, while occasional political violence and intimidation have been a feature of Bangladeshi politics for many years, particularly at election time and during demonstrations, according to DFAT’s 2014 assessment supporters or members of political parties faced only a low risk of being detained during protests and did not live in fear of violence on a day-to-day basis due to their political affiliations. There is nothing in the country information provided by the applicant or any other evidence of which I am aware that suggests that low-level members of the BNP, including office-bearers of local groups in Noakhali, were at such risk of harm that they had to live in hiding or semi-hiding for prolonged periods between 2008 and 2013. Nor does the evidence suggest that an office-bearer in a local branch of BNP student wing in Noakhali would be of such interest to the Awami League that he would be watched or followed by members of the group after relocating to Dhaka.

4. I find the applicant’s claims regarding the treatment of BNP members in general and his situation in particular prior to 2013 implausible and lacking in credibility. I do not accept that he was forced to live mostly in hiding between 2008 and 2013 or that he was forced to flee to Dhaka or that members of the Awami League monitored his movements or sought to harm him in Dhaka.

5. Thirdly, I found the applicant’s decision to travel to Bangladesh to visit his family in Noakhali in 2016 despite being advised by friends and relatives that the situation had not improved since he allegedly fled in fear in 2013 and despite having visas which would have allowed him to travel to [Country 3] or Australia a strong indication that he was not fearful of harm in Bangladesh at that time and that he did not flee the country in 2013 because he feared that he was at risk of serious harm.

6. Fourthly, I found his evidence regarding the problems he faced while in Bangladesh in 2016 unpersuasive. According to his written submissions to the Department he escaped before the group arrived and the police responded to a call for assistance and the group left when they arrived. His evidence at the hearing suggested that he was present at his mother’s house when the group came to his home and left for his [sibling’s] house after the police came and the men left. In addition, according to his written submission to the Department the applicant said that his home had been raided by the police after he left Bangladesh while his evidence at the hearing indicated the police had come to his home before he left the country in 2016. I also have difficulty reconciling the applicant’s claim regarding the assistance he received from the police in 2016 with his claim that he was at risk of harm from the police because of his association with the BNP. While these are relatively minor issues I find them a further indication that he has not provided an honest or an accurate account of his reasons for leaving Bangladesh and seeking protection in Australia.

7. After considering all of the relevant evidence I do not accept that the applicant was a member of the BNP prior to leaving Bangladesh or that he experienced problems of any kind for reasons of political opinion. I do not accept that he was beaten by police or that he was threatened or harmed by members of the Awami League or that a false case was lodged against him at any time. I do not accept that he fled to [Country 2] in 2013 because he feared harm in Bangladesh for reasons of political opinion or any other reason. I find that these charges were all concocted to support his claim for protection in Australia.

8. In reaching this conclusion I have considered the letters of support from [Mr C] and [Mr D] provided by the applicant. However, I note that the authors of both letters are described as senior members of the BNP and both live in Dhaka. I find it highly unlikely that they would have personal knowledge of an office-bearer in one of many small branches of the BNP, the student wing in Noakhali, as the applicant claims to have been. I also note that [Mr D] was an official in the BNP Youth Wing and stated that the applicant had joined that group, while according to the applicant he belonged to the student wing, which was a different branch of the party. In these circumstances and in light of my findings regarding the applicant’s credibility and the DFAT advice regarding the availability of false documents in Bangladesh I have given little weight to these documents.

9. I have also considered the applicant’s claims regarding his involvement with the BNP in [State 1]. However, I found his evidence regarding his membership of the group confused and unpersuasive.

10. In the first place, he made no mention of any involvement with the BNP when he was interviewed by the delegate in November 2016. Two and a half weeks later he sent a number of photographs to the Department which appear to have been taken on the same day. At the hearing he claimed that he had been attending meetings before his interview with the delegate but had not mentioned this because he was new to the group. I find this explanation unconvincing. If the applicant had any association with the group prior to the interview I believe he would have mentioned it to the delegate.

11. Secondly, he has provided differing accounts of the composition of the BNP [State 1] and his role in the group. Prior to the hearing he provided several articles published between July and November 2018 which report on meetings of the BNP in [State 1] and name a number of office-bearers in the group. At the hearing on 22 July 2020 he said that there were about [number] members of the BNP [State 1], including [number] office-bearers and claimed that he had been elected to the position of [Position 1] in 2018. Prior to the 21 August 2020 hearing he provided a document which appeared to suggest that at least since January 2020 the BNP [State 1] had no office-bearers, that about half the [members] were co-convenors and that the applicant and the remainder of the group were honourable members. On 21 August 2020 he said that he had become a formal member of the BNP [State 1] in 2018 but was not elected to the position of [Position 1] at that time. He said that the group had office-bearers at the current time, but also said that he had become [Position 1] in about January 2020, or at least had been performing the duties of the position since that time.

12. At the hearing on 22 July 2020 he said that the BNP [State 1] did not hold public activities. After being advised on 21 August 2020 that his witness [Mr E] had stated that the group did hold public events, he said that this was correct. He said that he had previously stated that the BNP in Australia did not hold events like those held in Bangladesh, but his evidence had been misunderstood.

13. I acknowledge that apparent inconsistences can be the result of misunderstanding or lack of clarity on the part of the applicant when providing evidence. However, I do not accept that this explains the applicant’s failure to provide a reasonably accurate account of the BNP’s current structure and activities and his position in the party when these matters were discussed in July. I find these inconsistencies a strong indication that he has not provided an honest or accurate account of his involvement with the BNP in [State 1].

14. Thirdly, rather than assisting the applicant’s case, the witnesses who claim to be involved with the BNP in Australia and to have knowledge of its activities provided evidence which was inconsistent and at odds with the evidence provided by the applicant himself. I have given little weight to their evidence.

15. [Mr E] and [Mr A] who provided written and oral evidence and [Mr B] who provided written evidence all stated that the applicant held the position of [Position 1] in BNP [State 1].

16. At the hearing in August [Mr E] said that as far as he was aware the applicant was only a member of the BNP [State 1] and there had not been any office-bearers in the group for some time. He also contradicted the applicant’s evidence that the group did not hold public events.

17. At the hearing [Mr A] said that the BNP [State 1] had a convening committee, but apart from the main convenor there were no office-bearers. When I noted that the applicant had stated that he was the [Position 1] he said that the applicant was a member of the convening committee and that he would be appointed [Position 1] when an appropriate meeting could be held. I note that the applicant himself did not claim to be part of the convening committee and the list of [co-convenors] who were apparently selected or elected in January 2020 does not include him.

18. At the hearing the applicant’s representative appeared to suggest that the witnesses who spoke at the hearing may have been confused in some way about the applicant’s role in the BNP as they belonged to the BNP Australia not the BNP [State 1]. However, if this is the case it suggests that they were providing evidence on matters about which they lacked proper knowledge and which therefore should be given little weight.

19. I accept that the applicant has had some association with a BNP group in Australia. However, in light of his willingness to concoct claims in support of his application and the problems with his evidence regarding his involvement with the group, I do not accept that he has been an active member of any BNP group in Australia since 2016 or that he participated in public activities or that he currently holds the position of [Position 1] of the BNP [State 1].  I believe that he participated in some BNP activities mainly to bolster his claim for protection in Australia.  I do not accept that he is a committed follower of the BNP and I am not satisfied that he would participate in political activities of any kind if he returned to Bangladesh.

    CONSIDERATION OF THE APPLICANT’S CLAIMS

20. There is no credible evidence before me which suggests that the applicant was a an active BNP member or supporter in Bangladesh or that he faced problems with the authorities or members of the AL prior to his departure in 2013 or during his visit in 2016. I am therefore not satisfied that there is a real chance that he would suffer serious or significant harm  from AL or the authorities if he returned to Bangladesh because of his political activities prior to leaving Bangladesh.

21. I accept that the applicant has had some limited involvement with a BNP group in Australia. I also acknowledge that it is possible that the Bangladeshi authorities could monitor Bangladeshi publications in Australia or that members of the local Bangladeshi community inform their government of political activities carried out in Australia, although I find it unlikely that the applicant would be known to the authorities due to his limited involvement with the BNP. In any event, it is clear from the DFAT advice set out above that the authorities are primarily concerned about high profile or active members of BNP who participate in political activities in Bangladesh. While lower level members or supporters in Bangladesh also face some degree of risk particularly if they participate in demonstrations or other activities, in my view the available evidence does not suggest that the applicant would be of any real or continuing interest to the authorities or the AL in Bangladesh merely because he has participated in some BNP activities in Australia.

22. In these circumstances and in light of my finding that the applicant would not participate in political activities of any kind if he returned to Bangladesh, I am not satisfied that there is a real chance that he would experienced serious harm amounting to persecution or that he would suffer significant harm as defined in Australia law for reasons of political opinion if he returned to Bangladesh now or in the reasonably foreseeable future.

    OTHER CONSIDERATIONS

23. In reaching this conclusion, I have considered the applicant’s request that I contact [Mr D], [Mr C] and other unnamed activists in Bangladesh to confirm his political activities in his homeland.

24. As discussed above, I have considered the written statements from [Mr D] and [Mr C] and the applicant’s explanation of his association with these men and on the basis of this information I have accorded them little weight and I am of the view that this it is not necessary and would not be useful to contact these witnesses.

25. With regard to the  request that I contact unnamed activists in Bangladesh, the applicant had ample time prior to the hearing to provide any evidence he wished including additional statements from witnesses in Bangladesh but made no mention of these potential witnesses. In these circumstances and given the problems with the oral and written statements from other witnesses, the availability of fraudulent documents in Bangladesh and the difficulty establishing the identity of witnesses outside Australia it is my view that it is not necessary and would not be useful to contact additional witnesses in Bangladesh at this time.

26. I have also noted the applicant’s evidence regarding an uncle who had been involved with the BNP who returned to Bangladesh several years ago after a number of years abroad significant . The applicant’s lack of credibility and failure to mention his uncle prior to the hearing in August cast significant doubt on these claims. In any event, while it is plausible that the applicant’s uncle would face problems if he was an active member of the BNP, as discussed above I do not accept that the applicant is or ever has been an active BNP member or that he would participate in political activities if he returned to Bangladesh. In these circumstances the problems allegedly faced by the applicant’s uncle have no relevance to his claim for protection.

27. Finally, I have considered the country information provided by the applicant’s representative. However, none of it is directly relevant to the applicant’s case. It provides nothing more than background information which is broadly in keeping with DFAT’s assessment of the situation in Bangladesh.

    DOES THE APPLICANT MEET THE REFUGEE CRITERION?

28. After considering the applicant’s claims individually and cumulatively, I am not satisfied that he faces a real chance of suffering serious harm for reasons of political opinion or any other reason if he returns to Bangladesh now or in the reasonably foreseeable future. Therefore, I am not satisfied that he has a well-founded fear of persecution in Bangladesh for any of the reasons set out in s.5J(1).

    DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERION?

100.   After considering the applicant’s claims individually and cumulatively, I am not satisfied that he faces a real risk of suffering significant harm on return to Bangladesh for any reason. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm.

CONCLUSIONS

101.   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).

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

103.   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

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

Roslyn Smidt
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.

…

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.

…

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.

…

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 of 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 of persecution would not exist if it were assumed that the fear of 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.

…