1702461 (Refugee)

1702461 (Refugee) [2018] AATA 4962 (21 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1702461
COUNTRY OF REFERENCE:                  Bangladesh
MEMBER:Paul Windsor
DATE:21 September 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Protection (Class XD) (Subclass 785) visa.

Statement made on 21 September 2018 at 2:27pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – member of Jamaat-e-Islami and Islami Chhatra Shibir – particular social group – illegal maritime arrival – involuntary returnee – fear of harm by Awami League – threats of assassination – victim of physical attack – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 45AA, 91R, 91S, 499
Migration Regulations 1994 (Cth), r 2.08F
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Bangladesh, applied for the visa on 19 June 2013 and the delegate refused to grant the visa on 9 January 2017.
The applicant applied for a Protection (Class XA) visa. However, by operation of s.45AA of the Act and r.2.08F of the Migration Regulations 1994, from 16 December 2014 the application is taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) visa and is taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.
The delegate refused to grant the visa because he was not satisfied that the applicant possessed a political profile which would attract adverse or ongoing interest from the Awami League (AL), the Bangladeshi authorities and/or persons acting on their behalf. The delegate also found that the applicant would not be of interest to the Bangladeshi authorities as a failed asylum seeker or because he departed Bangladesh illegally.
The applicant sought review of this decision on 13 February 2017. The applicant did not provide the Tribunal with a copy of the delegate’s decision record.
The applicant appeared before the Tribunal on 19 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. While the applicant had been represented during consideration of the primary application he was not represented in relation to the application for review.
RELEVANT LAW
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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration and Border Protection (now the Department of Home Affairs) (the Department) - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and relevant 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
In his Protection visa application the applicant claims to be a citizen of Bangladesh who was born in [a] village in Jessore District in Bangladesh on [date]. He states that he belongs to the Bengali ethnic group, is a Muslim, and speaks, reads and writes Bengali and speaks a little Hindi. He indicated that he has never married or been in a de facto relationship. He indicates that he departed Bangladesh illegally [in] December 2012 via Dhaka airport and arrived in Australia as an Irregular Maritime Arrival [in] January 2013.[1]
[1] See folios 40-55 of the Departmental file.
Claims from the Protection visa application
The applicant’s claims from his Protection visa application were included in a statutory declaration of 16 May 2013 which was submitted with the application. His claims are summarised as follows:[2]
[2] See folios 17-19 of the Departmental file.
·In 2004 or 2005 he joined ‘Jamat-e-Islami’ in the ‘Shattra Shibir’ (Student Wing) (hereafter referred to as JI (Jamaat-e-Islami) and ICS (Islami Chhatra Shibir)). He wanted to do the right thing by the people and his God. He was told about the party through other people in the village who said it was the right way to live. He had friends who were members who vouched for him.
·He used to organise meetings in his village and invite people to attend. These would be about aspects of the Quran and how to bring about welfare to the people. For example, if people were affected by natural disasters and financial problems they would help them by collecting clothing or money for them.
·Sometimes they would discuss politics but he can’t recall the details. Sometimes he would go to meetings in other villages.
·When his party would do political demonstrations the AL would come and disrupt them violently. He was involved in two demonstrations in 2005/06 to demonstrate against the unjust behaviour of the AL in arresting members of their party.
·There were regularly clashes with the AL people in his village.
·Around the time the AL came to power in 2008 they tried to get him to join the AL, but he refused. The AL threatened them with swords and sticks and said he would be assassinated if he did not join them.
·Towards the end of 2009 he was punched/beaten by AL members when he went to intervene in an altercation between his cousins and some AL members in his village. They then came to find him to bash him up but he escaped to a different village for a few days.
·He began to be fearful as others were being taken and hurt. AL members broke one his cousin’s arms and legs and people from nearby villages have been arrested.
·Things got much worse in 2012 so he decided to leave. His father sold and leased some of his land to raise funds for his travel.
·He fears he will be assassinated by the AL if he returns as they oppose his party.
The applicant’s then representative provided a submission to the Department dated 14 October 2014, in response to certain issues arising from the record of the applicant’s entry interview dated 21 January 2013 and the Protection visa interview on 30 September 2014.[3] Relevant additional matters raised in this submission are summarised as follows:
·Country information supports oral submissions made by the representative at the end of the applicant’s interview that police corruption in Bangladesh is high. The applicant’s persecutors due to their political affiliations with the ruling party, act with impunity. They are implicitly supported by the Bangladesh authorities and therefore closely linked to the state.
·Relocation cannot be considered reasonable in the applicant’s case. As a newcomer he would be easily recognised and informed on to the AL. His fear of harm also is not localised as the AL are active in harming supporters of the JI in all areas of Bangladesh.
·The applicant’s tendency to respond affirmatively to questions put to him by people in positions of authority may distort his evidence and prejudice the assessment of his credibility. He answered yes to some questions during the interview when he was confused by the nature of the questioning. Because of this the applicant’s responses to questions regarding his involvement with ICS are in fact consistent with his role and activities with JI. Because he was predominantly involved with JI and merely ‘associated with the Student Wing’ he was not able to answer in detail questions specific to the Student wing.
·The applicant instructs he was a member and involved in activities with JI but was only associated with ICS because they used to see him and sometimes would sit with him and chat about religious matters and joining JI. It was JI that he donated money to and organised events for which he invited people to attend, advising them about JI and how to help people in danger or who were less fortunate.
·The applicant tried to state at the interview that the situation got worse in 2012, which is consistent with country information, but this was dismissed by the interviewer when the applicant agreed, due to his ‘compliant demeanour’ that these events occurred in 2009. The applicant instructs that after 2009, he was repeatedly threatened by AL members in his village. They would question him on his way to the markets or as he was coming home from meetings, regarding his involvement with JI and would seek to stop his involvement by threatening to kill him.
[3] See folios 109-115 of the Departmental file.
Findings and reasons
The issues in this review are whether there is a real chance that, if the applicant returns to Bangladesh, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country of Bangladesh, there is a real risk the applicant will suffer significant harm for the purpose of s.36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant does not have a Bangladeshi passport. Based on the copies of his Bangladeshi Birth Certificate and the statement from [a member] of the Hakimpur Union Parisad the applicant provided to the Department, and noting the delegate’s findings in this matter, the Tribunal finds that the applicant is a citizen of Bangladesh as claimed. Accordingly, the Tribunal finds that Bangladesh is the applicant’s country of nationality for convention purposes and is the applicant’s ‘receiving country’ for complementary protection purposes.[4]
Credibility
[4] See folios 81, 83 and 149-151 of the Departmental file.
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

In general, the Tribunal found the applicant’s evidence at the hearing to be vague, unfocussed, inconsistent with evidence in his written statement and as revealing a lack of knowledge of the political parties (JI and ICS) that he claims to have been a member of and to have actively supported while he was in Bangladesh. The Tribunal found that this gave rise to significant concerns regarding the applicant’s credibility. Relevant examples of this are discussed below. In making credibility findings the Tribunal has considered the submission of 14 October 2014 by the applicant’s previous representative, where comment was made that the applicant’s tendency to respond affirmatively to questions put to him by people in positions of authority may distort his evidence and prejudice the assessment of his credibility. The Tribunal has also considered the applicant’s comments that he has forgotten some of the details of what occurred while he was in Bangladesh. While the Tribunal bore the representative’s comment in mind, and accepts that recollections of past events may be affected by the passage of time, the Tribunal finds that these factors do not account for the poor quality of the applicant’s oral evidence. The Tribunal’s overall sense was that the applicant’s oral evidence lacked substance because it was contrived rather than reflecting a recounting of lived experiences.
Considering all the evidence cumulatively (as discussed below), the Tribunal concluded that the applicant is not a credible witness and that he has concocted the key elements of his claims.
Assessment of claims
In essence the applicant claims that he fears harm from the AL because of his having joined JI, in the ICS (JI’s student wing) in 2005 or 2005, and his activities on behalf of JI/ICS. In his statutory declaration of 16 May 2013 the applicant stated that after AL came to power in 2008 he was threatened that he would be assassinated; and that after an incident in late 2009 where he claims he was punched after he intervened in a dispute between AL members and his cousins, he went into hiding for a few days because AL people came to find him to bash him up. He stated that he began to be fearful because others were being taken and hurt, AL people had broken the arms and legs of one of his cousins, and people from nearby villages had been arrested. He said things got much worse in 2012 and that’s why he decided to leave Bangladesh. The applicant states that he fears that if he was returned to Bangladesh he would be assassinated by the AL.
Claim to have supported JI/ICS
In its most recent Country Information Report on Bangladesh DFAT provides the following background on JI and ICS:[5]
JI is the largest Islamist party in Bangladesh, with historical strongholds in Rajshahi (northern Bangladesh) and Chittagong, the country’s second largest city. The party is committed to the creation of an Islamic state adhering to sharia (Islamic law), and to the removal of ‘un-Islamic’ laws and practices. The ICS is the JI’s student wing. It is one of the largest Islamist student organisations in South Asia. International sources report that it is one of the strongest student fronts in the Universities of Chittagong, Rajshahi, and Jahangirnagar. Local academic sources describe the ICS as having a notorious reputation for violence.
Government practices under the AL have severely restricted the JI’s ability to conduct activities on a day-to-day basis. In August 2013, the High Court deregistered JI as a political party because it judged that provisions in JI’s charter preventing women and non-Muslims from holding political or bureaucratic posts were inconsistent with the Constitution.
Five JI leaders have been executed after being convicted of war crimes by the ICT (see International Crimes Tribunal (ICT) and Death Penalty). Unsurprisingly, JI has vehemently opposed the ICT, which it has characterised as an attack on Islam and on Bangladesh’s identity as a Muslim country. JI has periodically held major strikes and violent demonstrations across the country, particularly against the ICT, which have resulted in numerous deaths (mainly at the hands of security forces) and large-scale property damage. In response to these demonstrations, and in response to militant attacks, authorities have arrested thousands of JI members in counter-terrorism operations, including through enforced disappearances (see Enforced or Involuntary Disappearances).
Authorities have particularly targeted for arrest the JI’s senior leadership, few of whom remain free and active. Other targets include prominent leaders, ICS members and, in some cases, family members. Lower-level JI members have reportedly been able to avoid the attention of authorities either through the paying of bribes to AL leaders or by physically relocating. DFAT assesses as credible reports that the situation is better for JI members in villages than in cities.
DFAT assesses that senior JI leaders face a high risk of arrest and legal sanction. Active JI members and ICS members who continue to engage in political activities and demonstrations also face a high risk of arrest. Ordinary JI and ICS members who do not engage in political activities and demonstrations face a low risk of arrest, although this may vary according to location.
[5] DFAT Country Information Report, Bangladesh, 2 February 2018, sections 3.63-3.67.
The DFAT Country Information Report also includes the following comment regarding politically motivated violence in Bangladesh:[6]
Bangladesh is prone to high levels of politically motivated violence (PMV). PMV manifests regularly in the form of violent clashes between supporters of different factions of the same party (intra-party violence), supporters of rival parties (inter-party violence), and between party supporters and law enforcement agencies. Fatalities and serious injuries resulting from these clashes are common. PMV tends to peak during periods of heightened political unrest, including during elections, strikes, and blockades. It tends to be most prevalent outside Dhaka, particularly in northwest and southeast Bangladesh. According to Ain o Salish Kendra (ASK- a local NGO), 177 people died and more than 11,462 people were injured in 907 separate incidents of PMV in 2016, while 52 people died and 4816 people were injured in 364 incidents of PMV in 2017. In addition to those killed and injured in inter- and intra-party violence, these figures include those killed and injured in election-related violence, strikes, blockades, and clashes with law enforcement agencies.
The January 2014 national elections were the most violent in Bangladesh’s history, with months of PMV (including all of the forms listed above) leaving hundreds dead and thousands injured across the country. The violence resurfaced in January 2015 after the government decided to confine BNP leader Khaleda Zia to her party office in Dhaka on the anniversary of the 2014 polls. Local government and council elections in April 2015, December 2015, and March 2016 were also marred by violence. DFAT assesses that violence is also highly likely to accompany the next national elections in late 2018 or early 2019.
In recent years, the frequency and level of intra-party violence has far outweighed that of inter-party violence, particularly between competing AL factions. In 2015, ASK documented 226 instances of AL intra-party violence (resulting in 33 deaths) and nine instances of intra-party violence involving all other parties (no deaths), as opposed to 30 instances in total of inter-party violence (25 of which were between the AL and BNP) resulting in seven deaths. In 2016, ASK documented 88 instances of AL intra-party violence (resulting in 17 deaths) and 44 instances of intra-party violence for all other parties (resulting in five deaths), compared with 18 instances of inter-party violence (13 of which were between the AL and BNP), resulting in four deaths. Similarly, in 2017 ASK documented 150 instances of AL intra-party violence (resulting in 29 deaths) and 92 instances of intra-party violence for all other parties (resulting in nine deaths), compared with 29 instances of inter-party violence (resulting in 11 deaths).
DFAT understands that intra-party violence between AL factions has been the most common form of PMV largely due to the party’s complete control over state institutions in recent times. Competition between rival factions and candidates (including so-called ‘rebels’, who have contested local elections as independents) for lucrative contracts, tenders and appointments to senior party positions, has superseded ideological differences. This trend may shift in the lead-up to the next national elections should the BNP confirm its participation.
[6] DFAT Country Information Report, Bangladesh, 2 February 2018, sections 3.59-3.62.
At the hearing the Tribunal asked the applicant when and how he started to become involved in politics. He said that in 2005 he got involved with JI and it started from there. When asked how he got involved with JI, the applicant said it was because it is a good party, is a religious party and as a Muslim country he thought it would be good, so he joined with them. The Tribunal asked the applicant how he came to find out about JI. He replied that it is a national party and the council people said it is a good party, so he joined them.
The Tribunal asked the applicant what he had to do to join JI. He said he joined by simply telling them that he wanted to join them because they are good. When asked who he told that to he said he communicated to the people who are the big leaders for the party. When asked how he did that he said they used to visit his village and would go to the council so he approached them. When asked who these leaders were he said one was Delwar and another was Hossain (country information indicates that Delwar Hossain Sayeedi was a JI leader subsequently convicted by the ICT and sentenced to death, later commuted to life imprisonment).[7] When asked if he signed a form and paid a membership fee he said he did not need to do that, he just went where they were, told them he wanted to join and they said okay, you are with us. He confirmed that he never had to pay any membership fees.
[7] ‘BD court rejects call to hang JI Delwar Hossain Sayeedi’, Pakistan Observer, 16 May 2017, >
Noting that in his statutory declaration of 16 May 2013 the applicant stated that he joined JI in the ICS (Student Wing), the Tribunal asked the applicant whether he joined JI or ICS. He replied that ICS is also part of JI but he joined IC. The Tribunal put to the applicant that at paragraph 7 of his statutory declaration he said he joined in the ICS/Student Wing. The applicant replied that he did ICS and JI. The Tribunal asked the applicant whether the people who came to his village were ICS or JI. He replied that ICS is the student wing of JI. When pressed regarding which he joined, the applicant indicated that first it was ICS and then JI, commenting that the main one is JI. The Tribunal sought to clarify its understanding of what the applicant was saying by asking is it correct that he joined in the student wing. He indicated that was correct.
The Tribunal queried the applicant that he had indicated that he only completed to Year [grade] ([number] years of high schooling) and completed that in 2000, so asked why he joined the student wing when he joined in 2005 if he had not been studying for 4-5 years. He said it is like steps and when you want to start you have to start with ICS and then progress to JI. The Tribunal commented that this seems strange from what the Tribunal has read about ICS. The applicant said in Bangladesh it is not a problem and anyone can join ICS. The Tribunal commented that country information indicates that ICS was established at the Dhaka University central mosque; is a major organisation at many colleges and universities in Bangladesh; and that its members are students[8]. The applicant said he did join and saw many others who had joined as well. The Tribunal also commented that the country information indicated that members were expected to donate monthly to the party fund yet he had indicated that he had not paid any fees. The applicant replied that he did not pay any fee to join, but after a while he had to donate when the party had functions, seminars or other occasions.
[8] DFAT Country Information Report, Bangladesh, 2 February 2018, sections 3.63-3.67.
The Tribunal asked the applicant to tell it what the goals of ICS/JI are – what they want for Bangladesh. He said they are to increase the well-being of the people; to improve the country; do the nursing of the people; and to develop the country by all means. When asked how the party thought it could best do those things the applicant said by convincing and motivating people to join them so they can extend their network and with the help of the human resources they will develop the country. The Tribunal asked for an example of how they wanted to develop the country. The applicant said when they have the Prime Minister they will rule the country properly and correctly. When pressed, he added that they will build more roads and infrastructure, create more employment opportunities and provide more care. The Tribunal asked the applicant if they have policies in relation to the Hindu and Christian communities. He replied that whoever practiced whatever religion that does not matter and they will not interrupt that or force them to do something else. The Tribunal asked the applicant if JI/ICS wished to create an Islamic state in Bangladesh and asked if that was their policy. The applicant replied ‘yes’ and commented that everyone wants to enlarge their own religion. When asked if JI/ICS ever used violence the applicant replied ‘no’, commenting that they always talk about good things and good acts, such as the welfare of people, and don’t do any bad things.
The Tribunal asked the applicant if he could tell the Tribunal about the five guiding principles, or some of the guiding principles, of ICS (detailed below):[9]
1.     Dawah (Call to Allah) - Conveying the message of Islam to the students and inspiring them to acquire knowledge and to arouse in them the sense of responsibility to practice Islam in full.
2.     Organization - To organize the students who are ready to partake in the struggle for establishing the Islamic way of life within the fold of this organization.
3.     Training - To take appropriate steps to impart Islamic knowledge among the students integrated under the organization to make them men of character, capable of braving the challenges of Jahilyah and, thus, to prove the superiority of Islam.
4.     Islamic Education Movement and Student-oriented Problems - To struggle for changing the existing system of education on the basis of Islamic values to build up ideal citizens and enhance leadership to solve real problems of the students.
5.    Establishing Islamic Social Order - To strive tooth-and-nail to establish Islamic social order for freeing humanity from all forms of economic exploitation, political oppression and cultural servitude.
The applicant commented that they are that no bad work could be done; that they should not fight with anyone; and that they should do development and think about the wellbeing of the country. He said that was all. The Tribunal read the five points commenting that there is an emphasis on Islamism and students. The Tribunal also commented that the South Asia Terrorism Portal (SATP) had commented that an aim of the organization was to establish an Afghanistan-Taliban type Islamist regime in Bangladesh and therefore it is opposed to forces of modernisation, secularism and democracy, and had reportedly helped recruit and send youths to Pakistan and Afghanistan during the reign of the Taliban regime.[10] The Tribunal also commented that ICS is reported to be extremely militant, involved in clashes with other student groups and linked to numerous acts of violence, with activists known to attack rival political party members by cutting their tendons.[11] The applicant replied that his aim is not to harm people or fight with others and the goal is to help people and to do development if he could. The Tribunal asked the applicant if he had ever come across people promoting the things the Tribunal just mentioned. He replied that he never knew about, came across or did these things.
[9] Bangladesh Islami Chhatrashibir, Organisization, Islami Chhatra Shibir (ICS), South Asia Terrorism Portal, Terrorism Research and Analysis Consortium (TRAC), Islami Chhatra Shibir, >
Noting the advice in the DFAT Country report that five JI leaders have been executed after being convicted of war crimes by the ICT, the Tribunal asked the applicant if he was aware of the ICT decisions.[12] The applicant indicated that he was aware that former JI leaders had been hanged. The Tribunal asked the applicant whether JI/ICS protested in response to those actions. The applicant indicated that he did not know. The Tribunal asked the applicant if he knew why those people had been hanged. He said it was because they were very elder and senior within JI. He commented that he did not know personally what they had done and only knew what he had read in the media. He said they were hanged due to supporting JI. When asked what reason the government gave, the applicant said he really doesn’t know the history, only that they were in JI and that they used to do good things for the people. The Tribunal put to the applicant that country information indicates that they were accused of being involved in the killing of Bengali academics and intellectuals in 1971 during the Bangladesh liberation war.[13] The Tribunal commented that JI/ICS supporters have been accused of using violence to retain their political power, murdering opponents, instigating riots by spreading false news and being involved in country-wide violence following the verdict of the ICT in February 2013, including attacks on minorities and setting fire to Hindu temples and businesses.[14] The Tribunal put to the applicant that given the available country information the Tribunal is surprised that he is maintaining that ICS/JI are peaceful organisations focused on the well-being of the people. The Tribunal also put to the applicant that credibility is an issue in this case and the Tribunal would expect that, given his claimed involvement with JI/ICS, he would have quite a good understanding of the principles, objectives and activities of JI/ICS. The applicant indicated that he did not have any comments that he wished to make in response to these observations.
[12] DFAT Country Information Report, Bangladesh, 2 February 2018, sections 3.65 and 5.12-5.13.
[13] ‘Bangladesh party leader accused of war crimes in 1971 conflict’, The Guardian, 3 October 2011, ‘Lie worked well. Photoshopped pic of Sayadee used to instigate Bogra violence’, The Daily Star, 4 March 2013, >
The Tribunal asked the applicant if he could describe the ICS and JI logos or symbols for the Tribunal. The applicant sought clarification regarding what the Tribunal meant. The Tribunal referred to the Bangladesh national flag being a symbol of Bangladesh and asked the applicant what the symbols of ICS and JI were that they might display on banners and posters. The applicant was not able to offer any comment on what the symbols were of either party, commenting that he has forgotten. The Tribunal also commented that the reference he had provided to the Department dated [January] 2013 from [a member] of his Village Union Parisad indicated that he did not take part in any ‘political party of subversive activity of the state’, and noted that the DFAT Country Report indicates that JI subsequently was deregistered as a political party in August 2013 because the High Court found that provisions in its charter preventing women and non-Muslims from holding political or bureaucratic posts were inconsistent with the Bangladesh Constitution. The Tribunal asked the applicant if the author of the reference was aware he was involved with ICS/JI. The applicant replied that maybe he made a mistake but he can’t remember. He added that the [author] was an AL member.

The applicant indicated that there are about 700-800 people in his village. He said there were not many ICS/JI members in his village, estimating the number at 10-20. When asked what activities he undertook he said he used to call people to gather and would preach to them how to do good things for society. He said they also helped people who are disadvantaged by giving them clothes or food. The Tribunal queried the applicant why he was responsible for organising such meetings given he indicated that he had not signed any formal membership, commenting that it would expect that others who were more senior and had been members for longer would have that responsibility. The applicant said he was the senior member in his village because he was the first to join. The Tribunal queried the applicant that when it read paragraph 8 of his statutory declaration, where he stated he was told about the party through other people in the village who said it was the right way to live and he had friends who were members of the party and they vouched for him, it did not sound like he was the first person in his village to join. The applicant replied that maybe he cannot remember everything as it has been a long time. The Tribunal put to the applicant that it accepts it has been a long time and that he may not remember everything, but both accounts can’t be true and his oral evidence is that he was the first person in his village to join JI/ICS, but his written statement suggests otherwise. The applicant reiterated that he can’t remember.
The Tribunal asked the applicant if they discussed politics at their meetings. He said they discussed how to behave and proceed in life, how to bring people in, how to improve the well-being of others and how to convey the message. When asked for more specific examples the applicant said they explained how they should work for the people, society and the country to develop and to stay well.
The Tribunal asked the applicant if they held rallies or public meetings. He said they did not just meet they had public rallies or if there was some occasion in the village they would go there to convey their message. He said sometimes higher ranking leaders would organise seminars and sometimes parliamentarians would visit and talk.
The Tribunal asked the applicant if he had a title. He said he was like a leader. The Tribunal queried the applicant that in his statutory declaration and in the submission by his former representative there was no reference to him having a title or being a leader, and that he had indicated in the hearing that he never even formally signed up as a member. The applicant responded that they used to call him leader. The Tribunal quoted paragraphs 3.5 of the former representative’s submission which states that the applicant instructs ‘he was a member’ and involved in activities with JI but was only associated with the student wing because they used to see him and would sit and chat with him about religious matters. The applicant again commented that there are many things he should say but can’t remember.
The Tribunal asked the applicant whether he attended any demonstrations. He said he did and that they would go from one village to another to talk about and discuss how to do things in a certain way. The Tribunal asked whether they protested. He replied that they rallied for awareness of the party and that ‘they’ cannot harm JI people. He said these rallies were held in the council or another village or sometimes at the sub-district level. He said 200-300 people might attend. The Tribunal asked the applicant what sort of issues might bring 300 people from different villages together, and how this was arranged given he had indicated that there were only 10-20 members in his village. He indicated that it would be for matters similar to those he had raised previously – to talk about many good things about the life, what we should be doing, and inviting people to please come and join us and discuss. He said it was not difficult to assemble people through making announcements over a microphone, as the sound goes very far.
Referring to paragraph 11 of his statutory declaration, the Tribunal asked the applicant what the political demonstrations were about. He commented that the welfare of the people, development and developing lives was part of the political demonstrations. The Tribunal put to the applicant that when it thinks about political demonstrations it thinks about demonstrations that are critical of another party and point out why people should support their party. The applicant replied ‘correct’ and indicated that they did that as well, commenting that is what he said. The Tribunal put to him that was not what he had said – that he had not mentioned any other party including AL, or said that AL had come and disrupted JI political demonstrations violently, as he had stated in his statutory declaration. The applicant replied that it is the same thing, he cannot remember.
The Tribunal asked the applicant whether AL did come and disrupt their demonstrations violently. He replied ‘yes’ and commented that when they held a rally or seminar AL would do vandalism or whatever they wanted to do. When asked what AL did, he replied they would say JI can’t do a rally there and that they would stop them and they would push in to disrupt the rally and would tell the people that they should not allow JI to do these things. When asked if they did anything else he replied ‘that’s all’.
The Tribunal asked the applicant to tell it about the demonstrations he had indicated he was involved in in 2005/06. He said they were all about those things – not to fight with people or harm people but to do things for the welfare of the people. The Tribunal queried the applicant that at paragraph 12 of his statutory declaration he indicated the demonstrations were to protest against the unjust behaviour of the AL in arresting members of his party. He replied that was what he meant to say. The Tribunal put to the applicant that it would expect that he would remember that and not have said what he said about the demonstrations being about the well-being of the people if that was the case.
The Tribunal asked the applicant what happened after the AL came to power in 2008. He replied that they started to attack JI, saying the party had to be removed. Noting that the applicant stated at paragraph 14 of his statutory declaration that at this time AL tried to get him to join their party and when he refused he was threatened with sticks and swords and told he would be assassinated, the Tribunal asked the applicant if anything happened to him personally. He replied that they said JI cannot survive and should leave the village and he had a fight with them and they were attacking people. The Tribunal asked why they would want him to join AL. He said it was to increase their numbers. When queried why they would want someone who supported a party with completely different policies to their own, he said they want there to be only their party and to remove JI, and wanted him to join to strengthen their numbers.
The Tribunal asked the applicant if he agreed to join AL. He said he did not. When asked what happened after that he replied that all the problems started. He commented that they came one day to fight and do harm. The Tribunal queried that in his statutory declaration he stated that he was told if he did not join AL he would be assassinated. He replied that is what they said and they attacked him and came looking for him. The Tribunal queried the applicant that his statement indicated this threat was made after the AL came to power in 2008 but then jumps to an incident at the end of 2009. The Tribunal asked the applicant to tell it what happened at the end of 2009. He said his cousin was not a supporter of any political party but was attacked by AL supporters one day and told he had to join them. He said his cousin was slapped. He said when he came to the scene they did the same to him. The Tribunal sought to clarify with the applicant that he was slapped and he replied ‘yes’. The Tribunal commented that his statutory declaration states his cousins were involved in an altercation and he stated he was punched. He replied that a few of his cousins were there and said ‘yes’ when asked whether he was punched. Noting the statement also indicates he was beaten the Tribunal asked the applicant whether he was just punched once. He replied ‘yes, once’. The Tribunal queried the applicant why these people would subsequently have come looking for him to bash him up (as indicated in his statement), when they had already punched him and presumably could have bashed him up then. He replied that others came to the scene. The Tribunal also queried the applicant why these people had not taken any action against him from 2008 until late 2009, given he claims they said he would be assassinated if he did not join the AL. He indicated he tried to keep safe by restricting his activities and that he knew if he did rallies they would come to attack him again. The Tribunal put to the applicant that his application indicates that he lived in his family home in the same small village all his life and it would seem that if AL members wanted to assassinate him he would be easy to find. He replied that people’s minds work differently and sometimes they are good and other times bad and sometimes they focus on him and other times not. He speculated that they may have been in a good mood because they were in power.
The Tribunal queried the applicant regarding the claim at paragraph 16 of his statutory declaration that these people came to find him to bash him up but he escaped to a different village for a few days. He said he went to stay with a far relative in Hasunatti village for almost a month. When queried that his statement said it was for a few days he replied maybe it was a few days or a month.
The Tribunal queried the applicant regarding the comment at paragraph 17 of his statutory declaration that he was fearful because others were being taken and hurt. He said some people were going to the market to do some grocery shopping and were attacked by AL members with wooden sticks and some had their hands broken when they put their arms up to protect themselves. He said they were attacked because they were JI members. When queried if his cousin was there he said some of the people present were his cousins and others were just villagers. Noting that his statement indicated that one of his cousin’s arms and legs were broken and that people from nearby villages had been arrested, the Tribunal asked the applicant if it was their hands that were broken. He said it was their wrists. When asked if anything else was broken he said ‘no’. When it was put to the applicant that his statement indicated that his cousin’s arms and legs were broken he replied that maybe it was the leg as well. When asked about the reference to people from nearby villages being arrested the applicant did not reply. When again asked if that was the case he replied that there were no arrest issues, only the beating.
The Tribunal asked the applicant what happened in 2012 that made him decide to leave Bangladesh. He replied that in 2012 he went somewhere and was coming home and AL people caught him and threatened him, saying they were going to kill him and he should be careful. He said they were very forceful and he got scared and so decided to flee Bangladesh. The Tribunal asked the applicant why they would just make that threat rather than carry it out if they really wanted to kill him. He said it was to convince him to join their group. The Tribunal asked the applicant if he had been continuing activities with JI. He said he was not at that time. He indicated that JI activities had already slowed down after AL came to power and while they would occasionally do something it was not like before. The Tribunal put to the applicant the information from the DFAT County Report indicating that DFAT assesses that that senior JI leaders face a high risk of arrest and legal sanction and that active JI members and ICS members who continue to engage in political activities and demonstrations also face a high risk of arrest, but that ordinary JI and ICS members who do not engage in political activities and demonstrations face a low risk of arrest, although this may vary according to location and credible reports indicate that the situation is better for JI members in villages than in cities. The applicant indicated that he had no comments he wished to make in response to this information.
Considering the DFAT country information cited above indicating that Bangladesh is prone to high levels of politically motivated violence which manifest regularly in the form of violent clashes between supporters of rival parties, between party supporters and law enforcement agencies, and between supporters of different factions of the same party, the Tribunal accepts that the applicant may have witnessed or been aware of incidents of politically motivated violence. Having carefully considered all of the applicant’s evidence individually and cumulatively, however, the Tribunal concludes that the applicant was not a member of JI/ICS within his village, let alone a leader, and finds that he was not politically active. The Tribunal does not accept that the applicant was threatened or slapped/punched by AL members or supporters, or that he was threatened that he would be assassinated by AL members or supporters, or that he went into hiding because AL members or supporters came looking for him to bash him up.
In reaching this conclusion that Tribunal has considered that the applicant has a poor understanding of the philosophy, principles, objectives and activities of the JI/ICS, the parties he claimed to support and to have joined. Considered cumulatively, the Tribunal found the applicants comments regarding the principles, goals and activities of JI/ICS to be vague, generalized and superficial. He could not articulate these beyond broad motherhood statements regarding doing good things, nurturing the people, not harming people, helping the less fortunate and improving the country for the benefit of the people. His comments contradicted or neglected JI/ICS’s goals of turning Bangladesh into an Islamic state and imposing Sharia law, their opposition to secularism, modernity and democratic principles, and their more recent positions that Bangladesh should reunify with Pakistan and should expel minorities including Hindus and Christians. The applicant maintained that JI/ICS do not practice or condone violence in the face of overwhelming evidence to the contrary. He was ignorant of the reasons for the ICT trials and the violence instigated by JI/ICS in the aftermath of the ICT convictions of JI leaders, including that the minority Hindu community was targeted. His comments in his statutory declaration regarding having joined JI in the student wing (ICS) are contradicted both by the country information indicating that ICS is a campus based organisation for students, and his own evidence at hearing that he joined JI by approaching JI leaders who were attending a meeting at his local council. His evidence regarding being the leader of JI in his village is implausible and is contradicted by other evidence he provided; that is, while he indicated at hearing that he became leader because he was the first in his village to join JI, his written evidence is that he was told about the party by other people in the village and that he had friends who were members of the party who vouched for him. He also commented at hearing that he did join ICS and saw many other people who had joined as well. His description of how rallies and demonstrations involving hundreds of people were organised across multiple villages in his district was simplistic (by making announcements over a microphone near the mosque in his village, which could be heard far away) and revealed a seeming lack of understanding of political organisation through distribution of flyers and coordination of local organisers via telephone. His inability to describe any political (as opposed to social welfare matters) that were discussed, or why and how they opposed and demonstrated against AL, during a period of political upheaval in Bangladesh, also indicates a lack of genuine political activism. His comment at hearing that there were not arrests of JI/ICS members contradicted the statement in his statutory declaration that one of the reasons he became fearful was that people from nearly villages had been arrested. His inability to recall any details of the symbols of JI or ICS supports the conclusion that he was not an active supporter of these organisations.
The Tribunal also found unconvincing the applicant’s oral evidence regarding the incidents he claimed impacted on him personally. In his statutory declaration he claimed that after the AL came to power in late 2008 he was threatened with sticks and swords and told that if he did not join them he would be assassinated. He did not raise this claim spontaneously at the hearing and when it was put to him that he did not join AL yet his statement indicates that the next incident was in late 2009 when he was slapped or punched when he sought to intervene in an altercation he happened upon between his cousins and some AL members, the applicant claimed that he had limited his activities. As put to the applicant, however, the Tribunal considers that if AL members really wanted to harm him they could have readily found him at any time over that period, given he had indicated that he continued to reside with his parents in the same village. In his statement the applicant had indicated that in this incident in late 2009 he was beaten and punched. At the hearing, however, he indicated that he was slapped. When queried regarding this inconsistency he said he was punched once. In his statement he said he went into hiding for a few days because ‘these people’ subsequently came looking for him to bash him up. At the hearing he said this was for about a month, then changed his account to a few days or a month when the inconsistency in his evidence was put to him. Whatever the claimed period, as discussed with the applicant, he returned to his family home and has not indicated there were any further incidents, involving him personally, until 2012. The applicant claimed in his statement that he began to become fearful because people were being taken and hurt, commenting that AL people had broken one of his cousin’s arms and legs. At the hearing, however, the applicant provided a quite different account where he said a group of JI people, including some of his cousins, were attacked with sticks by AL supporters while they were going to the market to shop, and some people had their hands or wrists broken when they put their hands up to shield themselves. The applicant also contradicted his written statement that people from nearby villages had been arrested, commenting when asked about this that there were no arrest issues, only beatings. These inconsistencies and contradictions reinforced the Tribunal’s view that the applicant was not recounting lived experiences but had concocted his claims.
In his statutory declaration the applicant simply stated that things ‘got much worse in 2012 and that’s why I decided to leave’, without providing any detail. The applicant’s former representative commented in the submission of 14 October 2014 that the applicant was repeatedly threatened by AL members in his village, who questioned him regarding his involvement with JI on his way to the market or as he was coming from meetings. As noted above, however, when asked about what happened in 2012, the applicant related a single incident where he claimed he encountered AL people when he was coming home after going ‘somewhere’ who threatened very forcefully that they were going to kill him and he should be careful. When asked why they would just make that threat rather than simply attack him, the applicant said they wanted to convince him to join AL. As noted above, the Tribunal considers that if AL members really wanted to kill or otherwise seriously harm the applicant because he had declined to join AL, or for any other reasons, they had many opportunities to do so, from the time the applicant claims he was first threatened that he would be killed after refusing to join the AL after they came to power in 2008 until he departed Bangladesh in December 2012. The Tribunal also notes that the applicant claimed at the hearing that, contrary to the representative’s implication that he was attending JI meetings in 2012, he had slowed down or ceased his JI/ICS activities by 2012 because the AI was in power.

Notwithstanding the comment above, the Tribunal does not accept the applicant’s claim that he had slowed down or ceased his JI/ICS activities because the Tribunal does not accept that the applicant was ever a local leader or member or active supporter of JI/ICS and therefore does not accept that he was actively involved in JI/ICS matters. This conclusion is further supported by the country information put to the applicant that active JI and ICS members faced a high risk of arrest and legal sanction. The applicant did not indicate at the hearing that he was ever threatened with arrest or was fearful of being arrested after the AL came to power in 2008, and when queried regarding arrests in his home area said there were not arrests, only beatings. His comment that his local Union Parasad [member], who provided a reference for him in January 2013 (during the time of the ICT trials) indicating that the applicant ‘did not take part in any political party of subversive activity of the state’, is an AL member, also supports the conclusion that the applicant has never been politically active and never been considered to be an opponent or enemy of the AL.
As the Tribunal finds that the applicant has never been politically active for JI/ICS and has never been threatened or beaten by AL members or supporters as a consequence, the Tribunal finds that the applicant would not be politically active as a JI/ICS member or supporter should he return to Bangladesh. The Tribunal finds, therefore, that there is not a real chance that the applicant would suffer persecution amounting to serious harm due to his political opinion, or for any other Convention reason, should he return to Bangladesh now or in the foreseeable future.
Risk of harm as a returnee to Bangladesh.
The Tribunal also discussed with the applicant the following information drawn from the DFAT Country Report regarding the risk of harm to returnees to Bangladesh, including those who departed illegally, involuntary returnees, and asylum seekers:[15]
The Emigration Ordinance Act (1982) makes it an offence to depart from Bangladesh other than in accordance with the procedures laid down in the Act. Bangladeshis require a valid passport and visas (depending on the destination country) to depart from Bangladesh.
Bangladesh accepts both voluntary and involuntary returnees. Bangladeshi authorities have generally insisted on a case-by-case, community level police check to verify the identity and Bangladeshi citizenship of returnees before authorising their return and issuing travel documents. This process has caused delays in returning Bangladeshis in some cases, particularly given the large numbers of people awaiting return. The International Organisation for Migration’s Assisted Voluntary Returns and Repatriation program assists Bangladeshi returnees in cooperation with the returning country and the Government of Bangladesh. DFAT has no evidence to suggest that recent returnees from likeminded countries have received adverse attention from authorities or others.
DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. Authorities may take an interest in high-profile individuals who have engaged in political activities outside Bangladesh, including people convicted of war crimes in absentia.
[15] DFAT Country Information Report, Bangladesh, sections 5.21-5.23.
The applicant commented that all places are not the same and all are not safe and that while the situation may be better in some areas that may not be the case in his area. He added that if he had not had issues in his country he would not have left his country and family and come to Australia. He said he fears if he returns to Bangladesh he will be killed.
Considering all the evidence individually and cumulatively, the Tribunal finds that the applicant was not a politically active member or supporter of JI/ICS and was not targeted for serious harm by AL members and/or supporters because he supported JI/ICS and refused to change his political affiliation from JI/ICS to support AL. The Tribunal does not accept that AL members threatened to kill or beat the applicant or that he had to go into hiding for a few days or a month to avoid AL members and/or supporters who wished to bash him.
Accordingly, and having considered the applicant’s claims individually and cumulatively as well as relevant country information, the Tribunal finds there is not a real chance that the applicant will suffer persecution amounting to serious harm from AL members and/or supporters, on the basis of his political opinion, or for any other Convention reason, should he return to Bangladesh, now or in the foreseeable future. The Tribunal also finds there is not a real chance that the applicant will suffer persecution amounting to serious harm due to him being a person who departed Bangladesh illegally, an involuntary returnee or a failed asylum seeker, from any individual, group or authority, should he return to Bangladesh, now or in the foreseeable future.
While the Tribunal accepts the submission by the applicant’s former representative that country information supports submissions made at the Protection visa interview that police corruption is high in Bangladesh, as the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm from AL members and/or supporters or anyone else should he return to Bangladesh, the Tribunal finds that the applicant does not require the protection of the Bangladeshi authorities.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in in s.36(2)(a) of the Act, the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa) of the Act.
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of his being removed from Australia to Bangladesh, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[16]
[16] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
The applicant has not advanced any arguments indicating that he considers he would face a real risk of significant harm if returned to Bangladesh. Given the Tribunal does not accept that AL members and/or supporters have harmed the applicant in the past or have an interest in harming him in the future, or that the Bangladeshi authorities or any other organisations or individuals will have an adverse interest in the applicant because he departed Bangladesh illegally, is an involuntary returnee or a failed asylum seeker, the Tribunal, having regard to the findings of fact set out above, and the applicant’s claims individually and cumulatively, also finds that there are not 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 the applicant would suffer significant harm in the form of being arbitrarily deprived of his life; having the death penalty carried out on him; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment, from AL members and/or their agents or associates, the Bangladeshi authorities or anyone else, should he be returned to Bangladesh.
Conclusions
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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
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).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Temporary Protection (Class XD) visa.
Paul Windsor

Member

Bangladesh Islami Chhatrashibir, Organisization, Documentation Centre (Ireland), Bangladesh – Information on the Islami Chhatra Shibir, 14 August 2013, protests attack on its leaders at RU’, Dhaka Tribune, 29 April 2014, Abdul Kader Mullah gets life sentence for war crimes, BBC News, 5 February 20-13, devil’s design – Fanatics used fake facebook page to run rampage in Ramu’, The Daily News, 14 October 2012, under attack’, The Daily Star, 1 March 2013, Party wants to expel minorities, reunify with Pakistan’, 7 March 2013,

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Citations

1702461 (Refugee) [2018] AATA 4962

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

MIMA v Rajalingam [1999] FCA 179

[2018] AATA 4962

21 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction