1702034 (Refugee)

1702034 (Refugee) [2022] AATA 1866 (21 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1702034
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Tania Flood
DATE:21 April 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 21 April 2022 at 2:33pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – membership and activity in political party – attacks and threats by members of ruling party and inclusion on hitlist – members of particular social group – returnees perceived to be wealthy – credibility – inconsistent claims and evidence – short visit to third country and voluntary return for business – delay in applying for protection – joined Australian branch of party shortly after visa refused – limited evidence of activity, profile and attacks and knowledge of current political events and issues – members of family unit – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(6), 36(2)(a), (aa), 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 January 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Bangladesh, applied for the visas on 2 May 2016. The delegate refused to grant the visas on the basis that the delegate was not satisfied that there is a real chance or a real risk the applicants will suffer serious or significant harm if they return to Bangladesh for the reasons claimed.
The primary and second named applicants appeared before the Tribunal in a face-to-face hearing on 10 March 2022 to present arguments in support of their case. In consultation with their representative they agreed to attend a further hearing by MS Teams Video conference on 4 April 2022 to complete the proceedings. They were represented during both hearings by their nominated representative.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicants will suffer serious harm if they return to Bangladesh for reason of their race, religion, nationality, membership of a particular social group or political opinion or alternatively, whether there are substantial grounds for believing that as necessary and foreseeable consequence of the applicants being removed from Australia to Bangladesh there is a real risk that they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
In the Protection visa application applicant one states that he was the Assistant General Secretary of Bangladesh Nationalist Party (BNP) [Local branch] under [Location]. He fears that he and his family will be kidnapped, beaten and killed by the Awami League (AL). He also fears the AL could implicate him in false cases and have him jailed without any trial or having committed any offence.
Applicant one states that he joined the BNP in 2006 and was an active general member of the party in the run up to the 2008 elections. He states that the AL came to power in December 2008 and remain in power and use their power and control to brutalise BNP members.
Applicant one claims that just after the 2014 elections he became aware from other members of the AL that his name was on a hit list. He departed to [Country 1] and when things calmed down in Bangladesh he returned. Soon after returning he became the Assistant General Secretary and promoted policies of the BNP and also provided the party with funds. He also actively helped members of the BNP when they were targeted by the AL.
Applicant one claims that on 19 May 2015 six people entered his home and called his name. At the time he was in his office on the ground floor. When the people didn’t find him at home they threatened his family and said they would kill him because he is a BNP supporter. When the people were leaving his home they noticed him in his office. They then entered the office, pushed him and made him sit in a chair. They asked him to give them any BNP documents he had. They hit, slapped and punched him and ransacked his office looking for documents. During their search they found 2.29 lakh taka that he had received from fund raising from BNP party supporters. However, he told them the money was from his business and they left taking the money with them. They told him not to report anything to the police or they would return and attack him and his family. He was shaken and did not go out much and reported everything to the BNP.
Applicant one claims that on 10 September 2015 he was at his [business] and when travelling home for lunch in a rickshaw five members of the AL party stopped him in front of [another business] and beat him up and threatened to kill him if he didn’t stop supporting the BNP. He was hit on his leg and back with an iron pole. He was rendered unconscious and some people in the market took him to a hospital and he later found out he was hit with the iron weapon on his head. He sought assistance from the police but they did not help him as they are aligned with the government. The police did not make a report and told him they only write a record when someone dies.
On 9 November 2015 his wife was bringing their daughter home from school and two people on a motorbike approached her from behind on [Road] and tried to grab his daughter. His wife held onto their daughter and his daughter fell to the ground. His wife was screaming but she covered their daughter on the ground. People around started screaming and shouting and the men drove away on the motorbike. After some time, they returned and when driving past they threatened that they will come back and get his children. They said he should stop his activities with the BNP.
Applicant two claimed in her application for a Protection visa that she fears for the safety of herself and her family in Bangladesh. She fears that members of the AL will kidnap her children and kill her and her husband. She restated the claims made by applicant one in respect of the treatment her husband encountered from the AL and the police and the incident which occurred in November 2015 involving her and her daughter.
The applicants claim they could not move to another part of Bangladesh because the AL party is very strong and has links everywhere in the country.
Additional claims were later raised by the applicants including that the family will be viewed as returnees from overseas with wealth and thus be subjected to kidnapping and harm. In addition it is claimed that because the family has lived in Australia their children share different cultural and social norms to those in Bangladesh and consequently they may experience discrimination for this reason.
In support of the claims outlined above applicant one has provided a translated copy of a letter from the Bangladesh Nationalist Party, [Local branch], [Location], Chittagong dated 24 June 2014. The letter certifies that applicant one held the post of Assistant General Secretary of [Local branch] and attests to his contribution to the BNP and wishes him success in future life.
Evidence provided to the Tribunal
On 4 January 2022 the Tribunal received a submission made by the applicant’s representative on their behalf. It is claimed:
The applicant initially became involved with the BNP through his involvement in student politics with Bangladesh Jatiotabadi Chatra Dal (JCD) in 1999.
The applicant later joined the BNP in 2004.
The applicant later became the Assistant General Secretary of the BNP in his home area [Location].
The applicants fear they will face serious and significant harm if they return to Bangladesh due to the primary applicant’s political opinion and activities. These fears are corroborated by the current political and security environment in Bangladesh.
It is submitted that the primary applicant is a BNP activist and member and has a political profile as per supporting documentation.
The submission references country information reports and news articles regarding human rights abuses and violations and ongoing persecution of BNP members and activists in Bangladesh. Based on this information it is submitted that the human rights situation in Bangladesh is deteriorating; human rights violations continue; the AL backed Chhatra League and Jubo League leaders and activities continue to act with impunity; extra-judicial killings continue. It is submitted that anyone who is affiliated or seen to be affiliated with opposition parties will face arbitrary arrest and torture in Bangladesh or forced disappearance. It is further submitted that the AL cadres and activists use the state organs to target and severely harass their political opponents including by lodging false politically motivated cases against their opponents.
It is submitted that based on the primary applicant’s profile there is a real risk that he would be identified and targeted for his active involvement including his activities overseas against the Awami League leadership. It is submitted that based on the profile of the primary applicant the applicants are likely to be arrested on return to Bangladesh and will consequently suffer serious harm arising from the sustained or systemic violation of internationally recognised human rights. Specifically they would face a real chance of physical mistreatment in detention.
It is submitted that if the applicants return to Bangladesh the primary applicant would continue to wish to have a significant degree of involvement in the BNP.
It is submitted that the applicants will not be able to get effective protection and moving to other areas of the country is not an option because of his active political opinion and support for the BNP. Furthermore, it is submitted that the applicants are a small family with a recently born child and will face practical difficulties in moving to other areas of the country. Therefore, it is not reasonable for them to relocate to other areas of the country.
Attached to the submission is a statement by the primary applicant in which he claims the following:
He has hearing issues in his [ear] and requests the Tribunal to consider this when conducting the hearing.
His sister [Ms A] died in 2019. Another of his sisters [Ms B] is in Australia.
He lived at two addresses in Chittagong: from [Birth] – 1993 at [Address 1] and from 1993 – December 2015 at [Address 2], Chittagong.
He started supporting the BNP from 1999 through his involvement with JCD and became a member of the BNP from 2006.
From 1999 to 2005 he was actively involved with the JCD attending their meetings and seminars. During that time he actively supported the BNP leader in his area, [Mr C].
In 2006 he became a general member of the BNP in [Location] when invited to join by the local leader, [Mr D]. He filled in a form and paid 5 taka as a membership fee. Generally, the membership fee is 10 taka but due to his active previous involvement with the BNP he was only asked to pay 5 taka. He later became the Assistant General Secretary of the BNP [Local branch] under [Location].
During that time he attended BNP meetings and gatherings and with the BNPs help a Madarasa was constructed and run by the local BNP. As BNP members they contributed to the smooth functioning of the Madarasa. They also engaged in fund collection for the Madarasa.
During the 2008 parliamentary election he was actively involved in campaigning for his local BNP candidate [Mr E] and participated in meetings of the Ward [Number] including in [Locations].
In the 2010 mayoral election he actively campaigned for [Mr F] who contested the election with BNP support. With their support he won the election. [Mr D] and another BNP leader contested as Ward Commissioner but he lost that election. Due to him winning the mayoral election local AL people developed further enmity for the local BNP members.
In May 2015 during the mayoral elections in Ward [Number] [Mr D] contested for the Ward Councillor and [Mr F] contested for the mayors post with the BNPs support in Chittagong City Corporation. Unfortunately they lost the election.
The applicant restates the circumstances surrounding the claimed attacks on himself and his wife and daughter.
Although they came to Australia on 25 December 2015 they did not apply for a Protection visa because he had a successful business and wanted to observe the period but when he heard from his brother that the local BNP member named [Mr G] was killed he then decided to seek assistance and applied for the Protection visa.
After coming to Australia he became involved with the BNP – Australia activities and participated in the meetings and events in Australia. He is a religious person and due to his beliefs he does not take photos and does not allow others to photograph him. As a result he has no evidence regarding his activities in Australia.
He restates his claimed fears of harm in Bangladesh for reason of his support, association and membership of the BNP; his support, involvement and activities with the BNP in Australia highlighting the inhuman activities of the AL and due to his status as a wealthy or perceived wealth Bangladeshi returnee.
He fears he will not be able to avail himself of state protection or relocate within Bangladesh as his fears exist throughout the country. Further he has a small family and small children and will face practical difficulties in moving to any other area of the country.
Attached to the submission is a translated copy of a letter dated 24 June 2014 from the BNP in Bangladesh attesting to him being an active worker of [Location] and Assistant General Secretary of [Local branch].
Also attached to the submission is a letter from the BNP Australia stating that the primary applicant joined the BNP in Sydney and participates in BNP activities and activities aiming to foster Bengali political and social culture in Sydney. It is stated that the applicant suffered violence from ruling party activists in Bangladesh and it is submitted that if he returns to Bangladesh his life could be in jeopardy like other members and activists of the BNP.
Copies of various country information reports and news articles regarding human rights practices and the political environment in Bangladesh are attached.
Tribunal hearing
The Tribunal heard oral evidence from the first and second named applicants over the course of two hearings. Their testimony is summarised as follows:
The first named applicant stated:
All four applicants were born in Bangladesh and are citizens of Bangladesh. They do not have the right to enter and reside in a third country.
Before departing Bangladesh the primary applicant and his family resided in Chittagong City from around 1994 until 2015. They remained living together in their last place of residence up until the day of their departure from Bangladesh.
The primary applicant’s parents are deceased. He has [brothers] and [sisters] residing in the same family residence in Chittagong City. [Another] sister passed away in 2019. The second named applicant’s parents, brother and sister also reside in Chittagong City.
The primary applicant finished his secondary school and was admitted to a Bachelor of [Subject] degree which he did not complete. His wife obtained a bachelor’s degree in Bangladesh.
The primary applicant was a businessman in Bangladesh. He operated two businesses. The first of these businesses was his own [business] which he commenced in 2007. He attracted business from [clients] and he employed about 14-15 staff. He said that business is no longer operational. The second business is a family-owned [type of business] called [Business name]. The club is still running and is managed by his three brothers. He retains an entitlement to a share of the profits. He said it is a successful and long running business venture.
The primary applicant stated that he usually worked four to five hours per day in the [first] business and another three to four hours per day in his family business. However, he noted that the family business was a [type of business] and they were not always fully booked.
The primary applicant stated that he travelled to [Country 2] about 7-8 times between 2006 and 2015; to [Country 3] 5 times in 2012 and 2013 (4 times for business and once with his family), [Country 1] once with his family in 2012 and [Country 4] once in 2014. He said that the business trips where to further a business idea he had to import goods from overseas, however, he said the idea did not take off.

The Tribunal put it to the applicant that the existence of these two businesses and his ability to undertake extensive international travel suggests he was financially secure in Bangladesh and he replied he was. He said he and his brothers also inherited the building where he lived in Chittagong City from his parents. The primary applicant also stated that his daughter, who was in year [Number] when they left Bangladesh, attended a private school.
The primary applicant stated that his children have been attending a public school in Australia although his daughter recently completed a year of Arabic school and his son is also preparing to do the same. He said the Arabic school is attended by other Bangladeshi children as well. The primary applicant stated that the family speak both Bengali and English at home.
As to his involvement with the BNP in Bangladesh the primary applicant stated that he supported the BNP from when he was a student and in 2006 he formally joined the party. He said that the purpose was not solely motivated by politics. He explained that he committed himself to charitable works in the community and he realised that to continue with his work on a broader scale he required some political backing and he therefore approached the BNP. He said he commenced attending meetings and seminars and canvassing for leaders during elections. He said at that time in 2006 the BNP was in power and he received a lot of support from BNP leaders to continue with his community work.
The primary applicant stated that when there were community charity events planned he would sometimes work for six to seven hours per day on those events. At other times, there were no events planned and he did no work at all.
Noting his reasons for joining the BNP the Tribunal asked the applicant why he became involved in the political activities of the party. He stated that he felt it was his moral obligation to support the party as they were providing support for his community work. The Tribunal put it to the applicant that it is not uncommon for people in Bangladesh to change their political allegiances for personal gain and asked him if he had ever considered lending support to the AL so as to have political backing for his community work. The applicant responded that he had never thought of doing that because in his opinion the AL are very cruel and engage in extortion and other immoral behaviour, including indiscriminately killing people.
The applicant stated that he was politically active in [Location]. He said he participated in meetings, seminars, protests and canvassing for local candidates during elections. He said that while he was supporting the BNP when he was in college, from 2006 onwards he never missed an important meeting or demonstration unless he was sick.
The primary applicant stated that a high-level unit of the BNP was formed in 2014 in his area and he became the Assistant General Secretary after his trip to [Country 1]. He said that in that role he helped to plan improvements, upheld the BNP’s philosophy towards others and strove to do better for the party and the people. When the Tribunal suggested his response was lacking in detail he said the party was restricted from organising gatherings after the AL came to power. He said that occasionally when they were able to they would talk about how to make plans for future election campaigns and how to develop their position in the local area.
The primary applicant stated that the high-level unit is no longer functioning. He said that one of the members was killed after he departed Bangladesh and other members were tortured.
The Tribunal asked the primary applicant whether he has any evidence of his political involvement with the BNP in Bangladesh other than the letter he has previously provided. He said he does not. He said that at that time he was an ordinary member and although he participated in events his photograph was not taken. He said that some photographs were kept in the office but when they left they could not get them. He added that since 2015 when he first started growing his beard he stopped allowing himself to be photographed.
The primary applicant was asked whether he was ever detained, arrested or questioned by the police or the Bangladesh authorities in connection with his long involvement with the BNP. He replied that he was not. He said that he was a good person and well known in his local area for his community work.
The primary applicant was asked whether in the early years of his membership of the BNP if he ever encountered any serious harm from AL members/supports. He replied that there are many silent BNP supporters who are not bothered by the AL. He said that in his case everything was alright until 2014 when the BNP boycotted the parliamentary election. He said that at that time he was participating in demonstrations and was always side by side with prominent local BNP leaders. He said the AL targeted him then for that reason. He added that he forgot to mention previously that he was once injured by the police in one of those demonstrations.
When asked what problems he encountered in 2014 he said that BNP people who participated in protests were put on a list. He said that when the AL won the election they started targeting and harassing BNP members who were very active at that time. He said that [Mr D], the President of his Ward advised him and others to hide somewhere and stay safe for some time. He said that most of the BNP members left their place of residence and went to their village homes or elsewhere but he went to [Country 1] with his family. He said he monitored the situation from there by keeping in touch with other members and after two weeks he and his family returned to Bangladesh. He said that whereas the AL members/supporters were initially angry and revengeful they gradually calmed down.
The primary applicant stated that in Bangladesh the political leaders are not targeted but rather the workers below them who support them. The Tribunal put it to the applicant that it does not consider this view is supported by country information which indicates that it is opposition leaders, members and activists with high political profiles who are more likely to be targeted and harmed by the AL. The primary applicant then stated that active workers are targeted.
The Tribunal asked the primary applicant what the AL was intending to do to those people whose names appeared on the list. He said their intention was to torture, kill or threaten them not to continue their support for the BNP. The Tribunal asked the applicant why he then returned to Bangladesh after only 2 weeks and soon after agreed to take a leadership position, which would likely expose him to further risk of harm. The Tribunal indicated that it seems unlikely his name would have been cleared after only a 2 week absence particularly as the period of time leading up to and after the 2014 elections was reportedly particularly volatile. The primary applicant agreed that the political environment gets very tense around election periods. He said that whichever party wins seeks revenge on their opponents and the police support that behaviour. He said that after the elections the ruling party supporters try to catch the opposition workers and when they cannot find them they move their attention to a different focus such as how to extort money for their activities.
The primary applicant was asked how he was able to exit and enter the country being a person named on an AL hitlist. He said that this kind of lit is prepared by AL workers in the various local areas. He confirmed he never experienced problems from airport officials on any of his trips in and out of the country.
The Tribunal put it to the primary applicant that his application form indicates that the trip to [Country 1] in 2014 was for tourism purposes and that it could form the view that trip with his family was a leisure trip and not because his name appeared on an AL hitlist. He responded that he could not have left his family behind because they most likely would have suffered if his pursuers were able to find him.
Given the concerns expressed for his family the Tribunal asked the applicant why he agreed to accept a leadership position on return from [Country 1] as this would likely have increased the risk of harm to him and his family. The applicant responded that his trip to [Country 1] was only temporary and he did not resign his membership of the BNP at that time. He said that when he returned to Bangladesh he gradually regrouped with the other members and it was then that the President advised them to form a local unit and he was offered the position of Assistant General Secretary.
The primary applicant said his wife supported him to take up the position in the BNP as she knew his intention was to help the poor people in the area. The Tribunal asked him how, with the BNP out of power, his ongoing political affiliation with the party was going to further his community work ambitions. He replied that even though they didn’t contest the election they still had a lot of support and received a lot of donations which they could allocate for local projects.
Referring to the 3 claimed incidents in which he and his family members were attacked the Tribunal asked the primary applicant whether he complained to the police on any of those occasions. He said that he informed the police after the second incident in which he was attacked on the street. He said that he sustained injuries and went to the hospital and he presented evidence of that to the police but they laughed at him. He said he had no evidence to support what happened on the first and third occasions and so he did not go to the police then.
The Tribunal put it to the applicant that in his written claims he states that the BNP advised him not to go to the police following the first incident which occurred at his home whereas in his latest statement he claims he went to the police on that occasion but they didn’t take his report. The applicant insisted that he never reported the first attack to the police.
The primary applicant produced into evidence an original hospital card detailing the treatment he received at the time of the claimed second attack.
The Tribunal put it to the primary applicant that during the first Tribunal hearing he produced a medical report supporting his claims and when he was informed the Tribunal had not seen it before he said that he previously produced the medical report. The Tribunal noted that the delegates decision says there was no evidence, either medical or police, to support his claims and that an examination of the Department file reveals the report is not present. The Tribunal suggested that one way of looking at this is that he has now produced a report after the unfavourable decision which notes a lack of evidence. The primary applicant reiterated that he previously provided the Department with the report.
The Tribunal also put it to the primary applicant that in any event the medical report sheds no light on the cause of his injuries. He responded that he required an x-ray and blood tests but he didn’t collect those reports.
Referring to the letter from the BNP and the medical report the Tribunal put it to the applicant that independent country information reports indicate the widespread prevalence of fraudulent documentation coming out of Bangladesh. The primary applicant responded that the Tribunal can contact the BNP in Chittagong and they will confirm his involvement.
The Tribunal asked the applicant what other steps he took to protect himself after the second attack. He stated that he was advised by his local leaders who visited him in hospital to report the attack to the police. He said that when he was released from the hospital he was advised by the hospital staff to stay at home and rest. He said he didn’t leave home for 2 weeks but thereafter he went to the police station with two other BNP members to report the incident. He said that after that his leaders told him that in politics they have to put up with a lot of odd situations and to exercise patience.
The Tribunal asked the applicant whether he went back to work and he said he continued to run his businesses. He said that he and the other BNP members shifted their meeting place to a temporary office outside of the area. He confirmed to the Tribunal that he remained living at the same address he reported earlier in the proceedings.
The Tribunal put it to the primary applicant that his oral evidence to the delegate is that he did not return to stay in his own house after he was released from hospital. He replied that he previously said that he went to the police after being released from hospital but he never went to try to hide in any other location.
As to the attack on his wife and daughter and the attempted abduction of his daughter the primary applicant stated that the police refused to help him when he presented them with medical evidence of the previous attack and so he did not attempt to make further report to the police on that occasion.
The Tribunal asked the primary applicant the reason why he obtained the letter from the BNP which he previously provided in support of his claims, noting that it is dated prior to the alleged incidents which occurred in 2015 and makes no mention of him experiencing problems with the AL. He said he obtained the letter for no other reason than to have some evidence of his involvement in local area politics. He said he regarded it as a reference letter and thought it might be useful for a variety of purposes.
The Tribunal asked the applicant why he did not consider leaving his local area and relocating to other parts of Bangladesh to avoid harm from the AL. He said that during the 2015 election he was a very big supporter of [Mr D] who unfortunately lost that election. He said that at that time he was a very active member of the BNP and was canvassing support for [Mr D] day and night. He said he was also giving money to the campaign from his own pocket and his activity made him a very big target of the AL. He said he never thought he would become such a target as he was involved with the BNP since 2006 and never experienced such problems before.
The primary applicant confirmed to the Tribunal that no other of his family members are actively involved in the BNP and in fact his brothers encouraged him not to be involved.
The Tribunal asked the primary applicant if he has been involved with the BNP in Australia and he said he is. He said there is a committee in [Suburb 1] which is convened by [Mr H] and he is a member of that committee. He said that when he applied for the Protection visa he came to know about this group and since then he attends meetings and seminars. He said he commenced this activity in 2017.
The Tribunal asked the primary applicant why he chose that timing to become involved with the BNP in Australia. He said that when he came to Australia he was first staying with a sister in [Suburb 2] and that family are not involved in politics. He said he sometimes asked other people and enquired about a BNP presence here but didn’t manage to find anything. On another occasion he met a [Mr I] in around February 2017 and he asked him to go and join in some BNP activity. He said that since then he has been attending those activities. He said that between 2015 and 2017 he did not have a work permit and he mostly stayed at home making it difficult to find out whether there was a BNP group here.
The Tribunal put it to the primary applicant that when he was asked by the delegate about his involvement with the BNP in Australia he replied he has no involvement at all. The Tribunal indicated that it is concerning that very shortly after receiving the delegates decision he initiated his involvement with the BNP in Australia. The Tribunal pointed out that if it concludes he has taken that action for the sole purpose of strengthening his claims for protection this action would be disregarded in the decision-making process. The applicant responded that his evidence to the delegate was honest and frank and he said he didn’t know anybody at that time. The Tribunal expressed its view that his current testimony about the struggles he faced in locating a local chapter of the BNP appears quite different to simply saying he was not involved at all with the BNP in Australia. The applicant then stated that the discussion with the delegate alerted him to the possibility that there might be a BNP branch in Australia and he started to research this after his interview.
The primary applicant stated that he attends different conferences, meetings and national day celebrations organised by the BNP in Australia and recently he attended a demonstration in [Suburb 1] over the treatment of the leader of the BNP in Bangladesh. The Tribunal asked the applicant whether he fears harm in Bangladesh on account of his activities in Australia. The applicant responded that the AL supporters are still causing lots of chaos in his local area. He said that since he departed Bangladesh one of his co-workers was killed. He said his branch secretary and president have both left the local area. That said he conceded he has been in Australia for quite some time now and he said he is not sure whether he will be seriously targeted and harmed on return. He said his main concern is for the safety of his children.
When asked if he would resume any involvement with the BNP if he returns to Bangladesh he said that even though his local unit no longer exists, [Mr D] is still there and he cannot just forget about his connections there and he will keep in touch and involve himself again.
The Tribunal asked the primary applicant which other of the leaders from his unit have remained in the local area. He responded that there were 26 members in the [Local branch] under [Location] of which [Mr D] is the BNP President. He said that when he arrived in Australia that unit ceased to exist as the members were all persecuted. He said he came to know that at least one of the members was killed and the others moved to different areas. When asked if all 26 members had relocated he said he didn’t know about all of them. He said he knows that their President and General Secretary left the area and the Organising Secretary is dead. When asked where the President and General Secretary are residing now he claimed not to know. He then said that after coming to Australia he came to know that none of the 26 members remain visible in the area. When the Tribunal pointed out that he earlier stated he does not know where all 26 members are he referred to the fact that there are thousands of members in the ward.
The Tribunal asked the primary applicant how [Mr D] is able to remain living in the area whereas he cannot and he said it is because he is the President of the Ward. He said that despite this he has different problems from time to time such as having cases brought against him and sometimes being imprisoned. He said that if the high level leaders leave there will be no BNP presence left.
The primary applicant was asked for his opinion about the state of the BNP as a political force in Bangladesh now. He replied that the past elections have been completely unfair and given the way the opposition is treated he does not know when the BNP will participate in elections again. However, he said that they remain optimistic that one day the party will be successful again.
The primary applicant was asked whether the BNP is facing any other challenges as a political party apart from those created by the AL. He replied that as a valued citizen he believes he has a responsibility for the people around me. He said the common people are exhausted and feel cornered by the AL. He said he would continue to try to help people in need.

100. As to what he thinks will happen to him on return to Bangladesh the primary applicant stated that even though he was not a big leader he was targeted by local AL supporters and they threatened to kidnap his daughter. He said he and his family were subjected to three attacks in quick succession. He said he has to protect his family and until the BNP is back in power he cannot return safely to Bangladesh.
101. The Tribunal put it to the primary applicant that his problems in Bangladesh appear to be restricted to his local area. He replied that it will be difficult to relocate to another area. He said nobody could guarantee his safety. He said that if he returns to Bangladesh he will also need to be involved in the running of his business. The Tribunal pointed out to him that he has stepped away from an active role in the business by coming to Australia where he is prepared to stay if granted a visa. He stated that in Bangladesh he would not be able to get another job.   The Tribunal stated it might not accept that as he is an experienced businessman. He reiterated that his business is in the same area he fears returning to. He said that even if he goes to live in Dhaka he cannot hide forever and sooner or later his presence will be exposed.
102. The Tribunal took evidence separately from the second named applicant. She testified as follows:
103. She married the primary applicant in 2005 and they lived together in [Location], Chittagong until they departed for Australia.
104. Prior to departing Bangladesh for Australia they visited [Country 3] in 2012 for tourism purposes and they went to [Country 1] in 2014 for approximately two weeks because her husband was having political problems.   After about two weeks the situation calmed down and they returned to Bangladesh. When asked how they determined it was safe to return home she said that after the election the situation went back to normal. The Tribunal asked her how she felt about returning to Bangladesh at that time and she said that at the time she did not interfere in her husband’s political activities and simply accepted what he said.
105. When asked why she and her husband came to Australia the second named applicant stated that in 2006 her husband got involved in politics and community activities. At first she had not objection to that. Gradually he became more active and people began noticing his activities helping others through his community activities. During that time he was busy with work and his activities. One day some people came to their home. They were shouting out her husband’s name. She spoke to them and they said some bad words and said to tell him not to do his activities. His office was on the ground floor and the people then went there and tortured him and took money and documents from him.    Another day when coming back home from work some people attacked him on the street.   After that a lot of incidents happened one after another. Her husband was hospitalised after the second attack and when he to the police station they refused to accept his complaint. Another time she was coming back from school with her daughter and two persons on a motorbike rode close to them and one of the riders grabbed her daughter’s hand. They stopped the bike in front of them. The man threatened them and wanted to take her daughter. She and her daughter were crying and screaming for help and people came to their rescue.   The men then rode off but as they were walking home they returned and the same person said that even though they couldn’t get her daughter today next time they would. Then they left and they went home. She said that after all those events she was not happy and she and her husband had problems. She wanted to leave Bangladesh.
106. When asked if she and her husband went to report the attempted kidnapping to the police she said they did not as the attackers were wearing helmets and she could not recognise them.
107. When asked if her husband reported the attack which occurred in his office to the police she said he did not. She said her husband told her that he talked to higher level people in the community about that incident.
108. When asked if her husband continued to live at home after the second attack she said he was resting at home and as his office was in the same building that they lived in he could easily operate his business by phone.
109. The second named applicant was asked to describe her husband’s political profile in Bangladesh and she responded that his political activity was restricted to the local area. She said she has not been personally involved in any political activity.
110. As to her husband’s political activities in Australia she said that he sometimes has phone conversations and sometimes attends video meetings and conferences.
111. The Tribunal again discussed with the primary applicant the possibility of relocation within Bangladesh as his political activities appear to have been restricted to his local area. He replied that he can not be certain that his former adversaries will not find him elsewhere in Bangladesh. He said that if a person is popular in their local area they will become popular in the whole country.   The Tribunal put it to the applicant that this would only happen if the person remained politically active. The applicant responded that members of political parties have backing and if he leaves the BNP he will have no support for his activities.   When asked if there were any other reasons why he could not reasonably relocate to another part of the country he said there were no other problems apart from his political profile.
112. The Tribunal discussed with the primary applicant the claim that his family will be targeted on return to Bangladesh because they will be viewed as wealthy returnees. The Tribunal put it to him that his evidence indicates he was a wealthy person in Bangladesh and yet was not targeted for this reason. The applicant responded that prior to 2014 he experienced no problems in Bangladesh but after the election in 2014 he became a target. When questioned further about this claim he stated that he never provided a statement claiming that he will be targeted in Bangladesh for this reason.   The Tribunal asked the applicant to confirm whether he fears harm in Bangladesh for reason of being a wealthy returnee and he responded “no”.
113. The Tribunal discussed with the primary applicant whether he fears his children will be discriminated against in Bangladesh as claimed. The applicant responded that he fears the people who tried to kidnap his daughter in the past will do so again. He stated that his fears for his children are in connection with his past political involvement. When questioned further the applicant stated that his children have been growing up in a different culture and if they return to Bangladesh they will experience the difference. However he said that it will be his responsibility to smooth their transition. He said that his children can speak Bengali but they cannot read and write the language and this will set them back academically. He stated however, that he does not want to include such issues in his bid for protection as this is a situation he can manage. He said he is fearful for their physical safety for the reasons claimed.
114. At the conclusion of the second Tribunal hearing the applicant stated that he was fasting and experiencing some dizziness and requested further time to respond to some of the issues raised by the Tribunal. In particular, he requested additional time to respond to questions asked about his representations to the police and the claims made in respect of them being wealthy returnees. In respect of the latter the applicant said that his wife reminded him during a break that the AL might think that they will be returning from Australia with extreme wealth.
115. The Tribunal put it to him that independent country information reports indicate that tens of thousands of Bangladeshi’s exit and enter the country each year safely after spending years abroad for various reasons. He responded that some of these people are killed on return and such occurrences are regularly reported in the media.
Post-hearing submissions
116. On 8 April 2022 the applicants’ representative requested that the Tribunal approve an extension of time to provide further submissions until 13 April 2022 and to advise if this presented a problem. The Tribunal did not object to the request.
117. On 8 April 2022 the primary applicant submitted a written statement which submits the following:
118. On the occasion of the first attack upon himself he did not go to the police. In his statement to the AAT he mistakenly said he did. He claims his family contracted COVID and he was under stress when he made the statement.
119. During the second hearing he was fasting and his daughter was crying and he could not fully concentrate. As to whether he returned home after the second attack he states that he did not go home from the hospital and his BNP committee members took him to the police station after he was released from hospital. After returning from the police station he stayed at his own house.
120. As to why he returned from [Country 1] after two weeks he states he thought the situation would calm down and due to his growing business he wanted to go home. When he contacted his BNP colleagues they advised that he could go back as the situation was getting better due to the international community warning the Bangladeshi government.
121. He maintains the claim that he fears returning to Bangladesh as a perceived wealthy returnee. During the hearing he was under stress but after his wife explained he realised the significance.
122. Noting the abovementioned request for an extension of time to provide additional submissions by 13 April 2022 and the absence of such, the Tribunal wrote to the applicants’ representative on 19 April 2022 advising that any further submissions should be made by close of business that day. No further submissions were received.
FINDINGS AND REASONS
Country of reference
123. Based on the identity documentation submitted to the Department, which is before the Tribunal, it is accepted that the applicants are citizens of Bangladesh.
Findings regarding the primary applicant’s political profile
124. Having carefully considered the available evidence the Tribunal is prepared to accept the primary applicant is a supporter and former member of the BNP. That said, based on his oral evidence, the Tribunal finds that the primary applicant’s motivation for joining the BNP was principally to garner support for his charitable community works and was not strongly driven by political ideology. While not without some doubts, based on the supporting evidence provided by the applicant, the Tribunal is also prepared to accept that he held the position of Assistant General Secretary of a very small local BNP branch in [Location] for a brief time in 2014/2015.
125. For the following reasons, the Tribunal does not accept the primary applicant was highly involved or actively engaged in BNP political activities or that he held a high political profile in his local area prior to his departure from the country despite that he might have held the position of Assistant General Secretary of a small branch for a short while.
126. Firstly, the primary applicant claims a long history of involvement in the BNP which commenced during his student years, well before he formally joined the party in 2006. Other than a short statement in the letter from the BNP dated 24 June 2014, the applicant has produced no other verifiable evidence of his claimed political activities in Bangladesh despite claiming to have been at the forefront of numerous election campaigns and protest actions and to have been regarded as a person of considerable reputation in his local area. Whilst it is acknowledged a letter from the BNP Australia provides limited support for his claimed political involvement in Bangladesh there is no evidence to support that the author of the letter knew the applicant or had knowledge of his activities in Bangladesh. The Tribunal considers the references to the applicant’s political activities in Bangladesh are based purely on information provided to the author by the applicant himself. The Tribunal has given this evidence little weight in determining the applicant’s level of political involvement in Bangladesh.
127. Secondly, despite his claimed membership of the BNP for some 16 years; his high level of claimed political involvement and a claimed ongoing commitment to furthering the aims of the BNP, the primary applicant displayed little to no knowledge of current affairs within his own party. For instance, independent country information reports and media articles indicate a range of significant political developments within the party including that the BNP quit its 20-party alliance in 2019; that its historical alliance with Jamaat-e-Islami is under strain and that internal conflict arose within the BNP when some elected candidates joined the parliament in 2019.[1] The Tribunal considers these issues significant and finds it equally significant that the primary applicant made no mention of any of these internal party challenges during the hearing. As noted above, when the primary applicant was asked whether the BNP is facing any other challenges as a political party apart from those caused by the AL he replied only that as a valued citizen he believes he has a responsibility for the people around him and that the common people are exhausted and feel cornered by the AL. The Tribunal does not consider the primary applicant’s responses demonstrate a level of knowledge commensurate with that which could be expected from a long-standing, active member and office bearer of the BNP.
[1] NF Antara, ‘2019 for BNP: One step forward, two steps back’, Dhaka Tribune, 30 December 2019; 2019 Country Reports on Human Rights Practices: Bangladesh, USDOS, 11 March 2020; AI Shaon and NF Antara, ‘BNP joins parliament after all’, Dhaka Tribune 30 April 2019; S. Zahid, ‘BNP mired in unrest and confusion’, Prothom Alo, 18 May 2019; A Riaz, ‘Bangladesh’s authoritarian shift’, East Asia Forum, 18 January 2020; MA Molla, ‘BNP needs to move forward without allies’, The Daily Star, 5 September 2020; SMM Rahman, ‘Frustration grips BNP-led 20-party alliance’, Bangladesh Post, 7 May 2019; ‘BJP Partho quits BNP-led 20-party alliance’, The Daily Star, 6 May 2019
128. Thirdly, the primary applicant claims a high level of political involvement, particularly from 2014 onwards when he said he repeatedly campaigned day and night for his local BNP leadership. However, based on his evidence he was engaged on a near full-time basis running two separate businesses, was heavily engaged in community charitable works while at the same time responsible for a young family. The Tribunal finds it implausible that the primary applicant had the amount of time available he claims to have devoted to political activities and considers he has exaggerated his level of involvement in BNP affairs.
129. Fourthly, the primary applicant arrived in Australia on 25 December 2015 but only made contact with the BNP Australia in 2017, quite soon after receiving the unfavourable primary decision of the delegate. In the Tribunal’s view if the applicant was a committed and highly involved member of the BNP in Bangladesh as is claimed, he would not have waited some two years to make contact with the party in Australia. As noted above, when this was discussed with the applicant during the hearing he put the delay down to his lack of knowledge of the existence of a BNP presence in Australia prior to the interview with the delegate and his inability for financial reasons to move around in search of such. The Tribunal has considered his responses but considers a quick internet search is all that is required to reveal the presence of a BNP network in Australia. As discussed with the primary applicant during the hearing the Tribunal is of the view, given the timing of his actions, that the sole purpose for him initiating involvement with the BNP in Australia, is to strengthen his claims for protection. The Tribunal considers his actions call into question the primary applicant’s credibility as it demonstrates a willingness to invent evidence for the purpose of securing a migration outcome. The Tribunal has disregarded this behaviour for the purpose of deciding the matter pursuant to s.5J(6) of the Act.
130. The Tribunal acknowledges the primary applicant’s oral invitation to the Tribunal to seek evidence from the BNP in Chittagong but as discussed with him during the hearing it is difficult to afford much weight to oral evidence obtained over the telephone with unidentified persons in another country. In any event, the Tribunal has considered the request but for the reasons outlined herein, including numerous credibility concerns, it has not deemed it worthwhile to do so.
131. In light of the above concerns, the Tribunal is satisfied the applicant was not actively involved in BNP activities for a prolonged period in Bangladesh and did not develop a high political profile in his local area or anywhere else in Bangladesh despite that he might have briefly held the position of Assistant General Secretary of a small branch.
Findings regarding the claimed past Harm
132. The Tribunal acknowledges that the primary and second named applicant’s have presented a largely consistent account of the incidents they claim occurred prior to their departure from Bangladesh. However, the Tribunal is of the view, for the following reasons, that these claims lack credibility.
133. Firstly, the Tribunal has difficulty accepting that a person with only a low political profile, as found above, was placed on a hitlist of persons designated for revenge attacks by the AL. Notwithstanding this, when asked how he came to know that his name appeared on an AL hitlist the primary applicant claimed he received this information from the BNP President in his area. However, he was unable to convincingly explain how the President came to be in possession of this information. He claims he was not informed about this and merely said the President must have had access to information and might have learnt about it from a source. He then speculated that persons pretending to be AL supporters might have passed on the information. In the Tribunal’s view, the primary applicant’s responses were vague and unconvincing and his account of the events contributes to the Tribunal’s doubts about the veracity of his claims.
134. Secondly, as discussed with the applicants during the hearings, the Tribunal finds it implausible that they would flee to [Country 1] to avoid serious harm only to return to Bangladesh after an absence of just two weeks. As discussed with the primary applicant the period prior to and after the 2014 general election was reportedly very volatile with a high degree of politically motivated violence recorded.[2] The Tribunal does not accept that a situation so serious as to warrant the applicant removing his entire family to [Country 1] to avoid him being tortured or killed as claimed would have calmed down to the point that he could return home after just two weeks. In the circumstances, the Tribunal does not accept the primary applicant’s response that the persons charged with exacting revenge on the BNP persons named on the list ceased this action when after two weeks they became absorbed in day-to-day political affairs. The Tribunal considers the claim that his BNP colleagues advised him that he could go back as the situation was getting better due to the international community warning the Bangladeshi government unpersuasive given this was never previously put forward in the reasoning behind his decision to return home so soon after learning he was a target of the AL. Furthermore, when discussing this issue with the primary applicant he indicated that a contributing factor to the decision to return home so soon was his need to attend to his new business. While that might have been the case as discussed with the applicant he claims to have fled to [Country 1] to ensure his and his family’s physical safety and the Tribunal is not persuaded that he would have prioritised his business over his and his family’s personal safety if indeed his life was in serious danger. Relevantly, and as discussed with the applicants’ the Tribunal also notes that the reason given for the trip to [Country 1] in 2014 on the application form for the Protection visa was “tourism”.

[2] DFAT Country Information Report, Bangladesh, 20 October 2014
135. In light of these concerns, the Tribunal does not accept that the primary applicant and his family travelled to [Country 1] for two weeks in 2014 because they feared for their safety after learning the primary applicant’s name was on an AL hitlist.
136. The Tribunal also has other concerns about the veracity of the evidence in respect of the claimed physical attacks on the applicants in 2015.
137. During the hearing the Tribunal put it to the primary applicant that he stated in his written statement of claims that he did not report the attack on 19 May 2015 to the police whereas his written statement dated 4 January 2022, included in a submission to the Tribunal on that date, states that the BNP asked him to report the attack to the police, which he did, albeit that they refused to take his complaint. On further review of the evidence after the conclusion of the second hearing the Tribunal notes that the primary applicant’s written statement of claims does not expressly state that he did not report the matter to the police although the Tribunal considers it is implied. Nevertheless, the applicant’s oral evidence to the Department (outlined in the decision record before the Tribunal) and the Tribunal, is that he did not report this attack to the police. The Tribunal has considered the primary applicant’s post-hearing statement which indicates that he mistakenly said he reported the matter to police in his statement to the AAT because his family had contracted COVID and he was under stress when he made the statement. However, the Tribunal is not persuaded that this adequately accounts for the differing claims in this respect. The primary applicant has consistently and clearly stated in his oral evidence that he never reported the attack on 19 May 2015 to the police citing a number of reasons for this including a lack of evidence and lack of confidence in the authorities. The Tribunal finds it difficult to accept that he was moved to say otherwise in his written statement of 4 January 2022 despite that he might have been under some stress at the time. The Tribunal considers the matter of whether and when he reported physical attacks from AL supporters to be significant and his inability to satisfactorily account for his differing evidence in this respect is of concern to the Tribunal.
138. During the hearing the Tribunal put it to the primary applicant that it also appears he has provided inconsistent evidence about his movements after the second claimed attack on 10 September 2015. The Tribunal noted that his oral evidence to the delegate is that he never returned home after release from hospital whereas his oral evidence to the Tribunal has consistently been that he continued living at home and made no attempts to hide. In attempting to explain this difference during the hearing the primary applicant emphasised the timing of his visit to the police station noting that this occurred sometime after he returned home from hospital and not immediately after his discharge. However, in his post-hearing statement dated 8 April 2022 the primary applicant states that his BNP colleagues took him to the police station upon his discharge from the hospital. The Tribunal has considered his responses but does not consider they adequately explain why he informed the delegate that he never returned to live in his home after being released from the hospital. Further, the Tribunal considers the primary applicant’s post-hearing submission is also inconsistent with his earlier oral evidence which is that he remained at home for two weeks rest before reporting the attack to the police.
139. The Tribunal has considered the submissions made during and post hearing that the applicants were fasting at the time of the second hearing and distracted by their crying daughter. However, the primary applicant gave evidence about his movements after discharge from the hospital during the first Tribunal hearing and no submissions were made that he was fasting or otherwise distracted during that hearing. The Tribunal acknowledges that the applicant’s young daughter did cry in the earlier part of the second hearing but the applicant’s requested and were granted a short break at that stage to enable the second named applicant to remove the child from the room and attend to her needs. Again, the Tribunal considers the primary applicant has not adequately explained his differing evidence in respect of his movements after discharge from the hospital and this is of further concern to the Tribunal.
140. Additionally, as noted by the delegate there is little to no evidence, other than the applicant’s testimony, to support that any of the three claimed incidents occurred. The Tribunal notes the primary applicant produced a medical report during the first hearing which he claims is evidence of the attack on 10 September 2015. As can be seen above the Tribunal was initially concerned that this evidence appeared to have been produced late in the proceedings but is prepared to accept the omission of this document from the Department file could have been the result of a filing error. Notwithstanding this, as discussed with the primary applicant during the second hearing the medical report does not assist the Tribunal in determining the cause of the injuries for which he sought medical treatment. For this reason, and in light of the credibility concerns expressed herein, the Tribunal has afforded this evidence no weight.
141. While the abovementioned concerns might not appear fatal to the applicants’ case when considered individually, when taken together and alongside the other credibility concerns expressed herein, they cause the Tribunal to doubt that the past harm which is claimed to have been experienced by the applicants in Bangladesh can be believed.
142. For all the above reasons and given its earlier finding on the primary applicant’s political profile, the Tribunal does not accept that the primary applicant was attacked on account of his BNP involvement on either 19 May or 10 September 2015 or that his attempt to report an attack to the police following the incident on 10 September 2015 was rebuffed on account of his political support for the BNP. The Tribunal is prepared to accept that the primary applicant attended a hospital for medical treatment around the time of the claimed attack on 10 September 2015 but is not satisfied that any injuries he sustained at that time were the result of a physical assault inflicted on him for reason of his political activities. The Tribunal also does not accept that the primary applicant’s wife and daughter were accosted on the street on 9 November 2015 or that an attempt was made to kidnap his daughter on that date by the primary applicant’s political opponents. The Tribunal is not satisfied that the applicant’s departed Bangladesh for the reasons claimed.
Is there a real chance the applicants will suffer serious harm if they return to Bangladesh now or in the reasonably foreseeable future?
Fear of harm for political reasons
143. As noted in the above findings the Tribunal accepts the primary applicant supports the BNP over the ruling party and considers he will continue to do so if he returns to Bangladesh. The Tribunal rejects the primary applicant’s claimed level of political involvement and considers this finding is supported by the lack of convincing evidence to support that he was a person of adverse interest to the authorities or AL members and supporters or suffered any past harm in Bangladesh on account of his political opinions and/or activities despite him being a member of the party since 2006. Whatever involvement the primary applicant has had with the BNP in Australia has been found by the Tribunal to be for the sole purpose of strengthening his claims for protection and hence has been disregarded in considering the likelihood of him being harmed on return to Bangladesh for political reasons.
144. The Tribunal has considered the country information provided in submissions and accepts that despite its continued political dominance the ruling AL government and its supporters have continued to suppress critics and BNP leaders and activists. In its most recent 2019 report on Bangladesh, DFAT assessed that under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges, and travel bans. Active members of opposition political parties and auxiliary organisations who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. This risk is elevated around times of heightened political tension, including elections. Those who are members of opposition political parties and auxiliary organisations but who do not engage in political activities and demonstrations face a lower risk of arrest, although this may vary according to location and timing. 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.[3]
[3] DFAT, Country Information Report, Bangladesh, 22 August 2019
145. During the hearings the primary applicant stated that he would resume active support for the BNP if he is required to return to Bangladesh but the Tribunal is not persuaded that he will. He has in the Tribunal’s view made no genuine attempts to remain involved with the BNP in all the years he has been outside of Bangladesh. Further, based on the primary applicant’s evidence the local unit to which he was previously attached and in which he held an elected position, ceased to exist when he came to Australia. While he may continue to support the BNP and even renew his membership of the BNP the Tribunal is not persuaded that he will seek a leadership position or engage in a level of political activity different to that which he engaged in prior to departing Bangladesh and which in the Tribunal’s view caused him no past harm. The Tribunal is satisfied the primary applicant will at best be no more than a low-level member of the BNP on return to Bangladesh who is unlikely to engage in political activities and demonstrations. In forming this opinion, the Tribunal has also had regard to the primary applicant’s declared motivations for joining the BNP in the first place, namely, to obtain political backing for his charitable works rather than due to any strong ideological commitment.
146. In the circumstances, and based on the country advice outlined above, the Tribunal is satisfied there is not a real chance the primary applicant will suffer serious harm, including being kidnapped, beaten, killed, implicated in false cases and jailed or arrested on arrival if he returns to Bangladesh for reason of his political opinion and/or activity. Nor does the Tribunal accept the applicants’ wife and/or children will be arrested on arrival, kidnapped or harmed in connection with the primary applicant’s political activities.
Fear of harm on account of being perceived to be wealthy returnees from abroad
147. The applicants claim that the family will be viewed as returnees from overseas with wealth and thus will be subjected to kidnapping and harm if they return to Bangladesh. When this claim was first discussed with the primary applicant during the second hearing he initially stated that he had never raised this claim and confirmed to the Tribunal that he did not fear returning to Bangladesh for this reason. After a break in the proceedings the primary applicant withdrew his claim to not fear harm in Bangladesh for this reason stating that his wife had reminded him that the AL might think that they will be returning from Australia with extreme wealth. In his post-hearing statement he similarly maintained that he continues to fear returning to Bangladesh for this reason and put his earlier response down to stress.
148. The Tribunal put it to the primary applicant during the second hearing that his evidence indicates he was a wealthy person in Bangladesh prior to the family’s departure and yet was not targeted for this reason. The Tribunal also put it to him that DFAT’s 2019 country information report for Bangladesh[4] indicates that tens of thousands of Bangladesh citizens exit and enter the country each year safely after spending years abroad for various reasons. He responded that some of these people are killed on return and such occurrences are regularly reported in the media.
149. The Tribunal has considered the primary applicant’s submissions in respect of his changing evidence in this respect. Regardless, it is of the view that he clearly and unequivocally stated to the Tribunal in the first instance that he did not fear returning to Bangladesh on account of being perceived to be a wealthy returnee. It appeared to the Tribunal that he was subsequently persuaded by others during a break in the proceedings to re-raise the claim. The Tribunal remains concerned about the veracity of his evidence in this respect.
150. Notwithstanding the above, the Tribunal finds it difficult to accept that after just six years in Australia the primary applicant’s political opponents, or anybody else for that matter, would assume that the family has amassed “extreme” wealth. The Tribunal remains unpersuaded that the applicants will be viewed any differently to how they were viewed prior to their departure from Bangladesh and there is no evidence before the Tribunal to support that their relatively wealthy status prior to departing the country led to them being subjected to kidnapping threats or other forms of serious harm in the past. The Tribunal notes the primary applicant’s submission that media reports support that people returning from overseas have been killed but the Tribunal has placed weight on DFAT’s advice regarding the ease of transition in and out of the country for the majority of travelling Bangladeshi’s.
151. Having considered the available evidence the Tribunal is not satisfied that there is a real chance the applicants will suffer serious harm if they return to Bangladesh for reason of them being perceived to be wealthy returnees from abroad.
Fear that children will be discriminated against
152. It is claimed that because the family has lived in Australia their children share different cultural and social norms to those in Bangladesh and consequently they may experience discrimination for this reason. The primary applicant also stated during the hearing that while his children can speak Bengali but they cannot read and write the language and this will set them back academically.
153. The Tribunal discussed these issues with the primary applicant during the hearing and he responded that his main fear is that the people who tried to kidnap his daughter in the past will do so again. He stated that his fears for his children are in connection with his past political involvement.
154. For the reasons outlined above, the Tribunal is not satisfied that there is a real chance that the applicants’ children will be harmed on return to Bangladesh for this reason.
155. As to whether the children will suffer discrimination or be disadvantaged academically, the primary applicant stated that he does not want to include such issues in his bid for protection as these are situations he can manage. He said that if the family are required to return to Bangladesh it would be his responsibility to ensure the children transition smoothly back into Bangladesh society.
156. In light of the primary applicant’s testimony the Tribunal is satisfied he does not genuinely fear that his children will suffer serious harm if they return to Bangladesh for reason of them growing up in a different culture or not being fully proficient in the Bengali language. Accordingly, the Tribunal is not satisfied that the applicants’ children have a well-founded fear of persecution in Bangladesh.
[4] ibid
CONCLUSIONS
157. For the reasons given above the Tribunal is not satisfied that any of the applicants satisfy the criterion set out in s 36(2)(a) of the Act.

Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. For the same reasons already articulated, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Bangladesh there is a real risk that they will suffer significant harm for the reasons claimed or for any other reason. Accordingly the Tribunal is not satisfied that any of the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) of the Act for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) of the Act and cannot be granted the visa.
DECISION

160. The Tribunal affirms the decision not to grant the applicants protection visas.
Tania Flood
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.
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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.
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[2022] AATA 1866

21 April 2022

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Immigration

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