1702621 (Refugee)

[2023] AATA 3355

1702621 (Refugee) [2023] AATA 3355 (31 July 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  1702621

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:  Member Nathan Goetz

DATE:  31 July 2023

PLACE OF DECISION:  Sydney

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

Statement made on 31 July 2023 at 10:24am

CATCHWORDS

REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh Nationalist Party official – arrest warrant – false legal proceedings – falsely identified as a terrorist – state protection – delay in applying for protection – passport renewal – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

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

In accordance with s 431 of the Migration Act 1958 (Cth), the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision made under s 65 of the Migration Act 1958

(Cth) (the Act) by a delegate of the Minister to refuse to grant the applicant a protection visa.

CRITERIA FOR A PROTECTION VISA

1. 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).

1. 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.

1. 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).

1. 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.

1. 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.

1. Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.

BACKGROUND

1. The applicant identifies as [an age]-year-old male citizen of Bangladesh. [In] October 2015 the applicant arrived in Australia holding a working holiday visa that had been granted on 1 October 2015. The working holiday visa was valid until [October] 2016.

1. On 27 September 2016 the applicant applied for the protection visa. On 9 January 2017 the delegate interviewed the applicant. On 30 January 2017 the delegate refused to grant the protection visa.

1. On 15 February 2017 applied to the Tribunal for merits review of the delegate decision.

1. [In] April 2019 the applicant departed Australia and returned to Australia [in] May 2019.

1. On 26 February 2022 the applicant was invited by another Tribunal Member to appear at a Tribunal hearing on 22 April 2020 to give evidence and present arguments relating to the issues arising in relation to the decision under review. By letter dated 23 March 2020, the Tribunal cancelled the Tribunal hearing due to the COVID-19 pandemic meaning that the Tribunal ceased holding in person hearings.

1. On 25 June 2020 the applicant was invited again by that Tribunal Member to appear at a Tribunal hearing on 10 July 2020 to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal hearing had been listed for a telephone hearing. By letter dated 20 June 2020 that Tribunal Member cancelled the Tribunal hearing because the applicant requested that the Tribunal hearing be postponed until he was able to appear in person.

1. On 3 August 2020 the applicant was invited again by that Tribunal Member to appear at a Tribunal hearing to appear at a Tribunal hearing on 20 August 2020 to give evidence and present arguments relating to the issues arising in relation to the decision under review. By letter dated 12 August 2020 that Tribunal Member cancelled the Tribunal hearing because the applicant requested that the Tribunal hearing be postponed due to illness. The applicant provided a medical certificate from the [named hospital], New South Wales which declared that the applicant was unfit for work until 31 August 2020.

1. On 4 September 2020 the applicant was invited again by that Tribunal Member to appear at a Tribunal hearing on 24 September 2020 to give evidence and present arguments relating to the issues arising in relation to the decision under review. By letter dated 23 September 2020 that Tribunal Member cancelled the Tribunal hearing because that Tribunal Member was no longer able to hear the review application.

1. The review application was later constituted to the present Tribunal Member.

1. On 11 March 2022 the applicant was invited to appear at a Tribunal hearing on 29 March 2022 to give evidence and present arguments relating to the issues arising in relation to the issues under review.

1. On 29 March 2022 the applicant appeared at the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Bengali languages.

CONSIDERATION OF CLAIMS AND FINDINGS

1. The issue in this case is whether the applicant is a refugee or a person who meets the requirements for complementary protection or a member of the same family unit as a person who is a refugee or meets the requirements for complementary protection.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Mandatory considerations

1. 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.

Personal particulars, identity, family and country of reference

1. The protection visa application form declares that the applicant did not receive assistance completing the form. At the Tribunal hearing, the applicant said that he received assistance from a person who is in Bangladesh. He sent this person the form but claimed that the answers in the form were in the applicant’s own handwriting. The applicant also said that the submissions sent to the Tribunal (which are discussed later) were also completed using the assistance of this person in Bangladesh.

1. The applicant claimed that he was a citizen of Bangladesh and had no right to enter and reside in any third country. He provided a copy of his Bangladesh passport issued [in] 2014 in support of his identity.

1. The Tribunal is satisfied on the basis of the applicant’s passport, and the absence of evidence to the contrary, that the applicant is a citizen of Bangladesh who has no right to enter and reside in a third country. The country of reference for the purpose of the protection visa application is Bangladesh.

1. In the protection visa application form, the applicant identified that he was born in Sirajganj, Bangladesh. He identified his ethnicity as Bengali, his religion as Muslim, and his occupation as [an Occupation 1]. He declared that he has never been married or in a de facto relationship. At the Tribunal hearing, the applicant confirmed that he continued to be unmarried, had not been in a de facto relationship, widowed or separated.

1. The form also asked the applicant for for details of ‘other family members.’ The applicant identified a mother and father, with his father deceased. He identified that he had [specified family members]. His living relatives were identified as currently residing in Bangladesh, except for one brother who he identified as residing in Australia. At the Tribunal hearing, the applicant said that his brother who was identified as living in Australia in the protection visa application form, was still in Australia. He said that he did not speak to this brother due to a family dispute, but his mother spoke to him and would have told the applicant if his brother had left Australia.

1. The applicant told the Tribunal that this brother was already present in Australia when the applicant arrived in Australia. The Tribunal notes that this brother was declared as the applicant’s close personal contact in Australia in the protection visa application form.

1. Department records indicate that this particular brother applied for a protection visa on 1 July 2013, a delegate refused to grant the protection visa on 30 September 2014, and the brother applied to the Tribunal for review of that refusal decision. The Tribunal affirmed the decision to refuse to grant the protection visa, and the brother sought judicial review of the decision. The brother’s matter worked its way through the courts and ultimately was dismissed by the High Court [in] May 2017, and the brother departed Australia [in] November 2017.

2. In the protection visa application form, the applicant indicated that he was making his own claims for protection. He did not claim to be a member of the same family unit as a person who is a ‘refugee’ or who meets the requirements for ‘complementary protection.’

1. The Tribunal is satisfied on the basis of the applicant’s concession that he is not a member of the same family unit as a person who is a ‘refugee’ or who meets the requirements for ‘complementary protection’, and the absence of any evidence to the contrary, that he is not a member of the same family unit as a person who is a ‘refugee’ or who meets the requirements for ‘complementary protection.’

Departure from Bangladesh and passports held by the applicant

1. The protection visa application form also asked about the applicant’s departure from Bangladesh. The applicant declared that he left Bangladesh legally on a Bangladesh passport issued [in] 2014, with an expiration date [in] 2019. He obtained this document through the Bangladesh passport office. The applicant arrived in Australia in Sydney and had departed Bangladesh at [a named] Airport. The form asked whether the applicant had previously held a passport. The applicant declared he had not.

1. At the Tribunal hearing, the applicant provided the Tribunal with a Bangladesh passport issued [in] 2019 which is valid until [2024]. The Tribunal was also asked whether he held a passport prior to the passport that was issued [in] 2014. The applicant said he had but was unsure of the validity dates. The applicant confirmed that he been granted a total of three passports. The Tribunal asked the applicant why he obtained his first passport and he responded that he got a passport in case he wanted to travel. The Tribunal asked the applicant why he had not declared his earlier passport. The applicant said that he did not realise he needed to do this. Again, the form makes it quite clear that the applicant was required to do so.

1. The applicant declared in the protection visa application form that he had not departed and re-entered Australia since his first arrival. He declared no travel to any country other than Australia in the last 30 years. At the Tribunal hearing, he declared that he did leave Australia and returned in 2019. He said he travelled to India where he saw his mother. He told the Tribunal that his mother was sick and in India for medical treatment. He said he did not travel to Bangladesh during that trip.

The applicant’s residential address in Bangladesh

1. In the protection visa application form, the applicant provided one residential address for his entire time in Bangladesh, being [an address in] Sirajgonj, Bangladesh from [specified year] until October 2015. Interrelated with his protection claims, he did not claim to have relocated within Bangladesh to seek safety. The applicant told the delegate that he had Dhaka residence and police were looking for him there. The applicant also told the Tribunal that he lived at a Dhaka address, and it was from this address that he travelled to go to the airport to depart Bangladesh.

1. The Tribunal asked the applicant why he did not declare his Dhaka address in the protection visa application form and the applicant said he did not recall, but also said that the address provided in the form was his permanent address, which was his family home, whereas the address in Dhaka was a temporary address. The applicant claimed he did not know whether he needed to include temporary addresses on the form, despite the form making that requirement quite clear. He attributed the inconsistency to misunderstanding the form.

Applicant’s criminal history

1. The protection visa application form also asked the ‘character questions.’ The applicant declared that he had not been found guilty of a crime or any offence in any country and that he was not aware that he was the subject of a criminal investigation or had criminal charges pending against him. He had not committed a serious crime but not been charged. Whether the applicant has been charged with criminal offences is best discussed in his protection claims.

Protection claims

The claims initially raised in the protection visa application form and documents

1. The protection visa application form asked the applicant about his reasons for claiming protection. The applicant answered the questions as follows:

1. He was asked why he left Bangladesh. The applicant wrote that “I left my country after I received the visa granted letter for Australian work and holiday visa.”

1. The applicant was asked what he thought would happen to him if he returned to Bangladesh. The applicant wrote that “but now it is impossible for me to return to my country. If I return to my country now the political opponents will kill me, or I will be subject to extortion followed by kidnap or extra-judicial murder.”

1. The applicant was asked whether he experienced harm in Bangladesh. He wrote that he had not. He had not sought help within Bangladesh after the harm (evidently, because the applicant did not claim to have experienced harm in Bangladesh). The applicant claimed he did not move or try to move to another part of Bangladesh to seek safety because “the reason for my not seeking refugee to the other parts of my country was not arising any situation so that I had to do that. I had *illegible* reasons behind. The cause of harm arose after I left the country, and my family is suffering now.”

1. The applicant wrote that he thought he would be harmed or mistreated if he returned to Bangladesh because “this is nowadays a very common practice by this present government to humiliate, and then assault, followed by kidnapping and kill if somebody is not following their instructions. I am not a person who will be directed. I have the ideology of Bangladesh Nationalist Party in my blood. I cannot cooperate with them and cannot take command from my opponents in which ideology have no believe in.”

1. The applicant did not think the authorities in Bangladesh could and would protect him if he went back to Bangladesh because “I do not think the authority of my country will and can protect me. First of all, the law enforcing agency in under the supervision. The administration is direct under the prime minister and other ministers. They have to follow the instructions from the government.”

1. The applicant did not think he could relocate within Bangladesh because “I will not be able to relocate in any part of Bangladesh because my political opponents have connections through their party network all over Bangladesh. They will haunt me down and kill me.”

1. The applicant provided several documents with his protection visa application, including his Bangladesh passport and various academic qualifications. The applicant foreshadowed that a “detailed statement of claim”, “membership certificate for the Bangladesh Nationalist Party”, and “other evidence” were not presently available but would be provided a later time.

Protection claims raised in the delegate interview

1. The applicant discussed his claims with the delegate. Relevant to the Tribunal’s assessment of the applicant as witness, the applicant provided the following relevant evidence.

1. He told the delegate that his intention applying for the working holiday visa to come to Australia was because he was not feeling secure in Bangladesh because he had political opponents.

1. The delegate raised that the applicant had entered Australia in October 2015 and applied for a protection visa in September 2016. The applicant said he inquired through a friend about whether the situation in Bangladesh was safe or unsafe from him. After that discussion, the applicant thought it would be wise to apply for protection in Australia because things were not congenial in Bangladesh. The applicant claimed that he had no intention of applying for a protection visa and did so once he was told that he did so when he spoke to his family and came to know that there was a case against him.

1. The applicant told the delegate that he held a position as [Position 1] with the Bangladesh Nationalist Party while in Bangladesh. He said he joined the party in 2010. He said he sometimes attended BNP meetings and functions in Australia and described himself as a general member here. In terms of his activities in Bangladesh, he referred to organising meetings and protests. He said he was fearful of his political opponents and named a particular person.

1. The applicant was asked by the delegate whether he could seek protection by the police in Bangladesh. He said he could not. The applicant said there was a warrant out for his arrest in Bangladesh and if he went to the police, they would arrest him. He told the delegate that the arrest warrant related to events in January 2015. The applicant and his group held a procession at his university campus. A petrol bomb was thrown at a car and the applicant and people associated with him, being between 10 or 15 people, were subject to a warrant. The applicant said that it was after he left Bangladesh that a letter was sent to his house about this, that was how he knew that he had a warrant. It was a letter from the police station. It said that the applicant had been accused of the petrol bomb throwing. The applicant said that he did not presently have a copy of this document, but it was coming in the post to Australia. The applicant showed the delegate what the Tribunal assumes to be a mail tracking application on his mobile phone which indicated that the applicant had a parcel from [the courier] arriving shortly.

1. At the time of the interview, the applicant indicated that the police had come to his house twice since he left Bangladesh. He indicated this occurred in the three months after his departure from Bangladesh. He also said that his political opponent, whom he named, and the opponent’s gang had spoken to his family in a threatening manner. He said he could not return to Bangladesh because there is a case out against him, and his named political opponent was looking for him.

1. Subsequent to the delegate interview, the applicant provided a document dated [in] June 2015 signed by two people who were identified as [positions specified] of the Bangladesh Jatiobadi Chatradal of [University 1]. The document certified that the applicant was involved in that group at [University 1] and held the position of [Position 1] from May 2014 to date. There were also copies of newspaper documents relating to clashes between Bangladesh Nationalist Party supporters and police. The articles were accommodated by an English translation from a person who was identified as a notary public in Bangladesh. The newspaper articles do not mention the applicant.

1. Also provided were documents accompanied by an English translation from a notary public in Bangladesh. Those documents appeared to be:

   ·     An arrest warrant for the applicant and other people dated [in] September 2015.

·     A first information report related to the applicant and other people dated [in] January 2015 related to a complaint made in respect of the applicant burning petrol on a bus.

·     An order sheet for magistrate record related to the arrest of [Mr A] and those warrants were issued for other accused.

·     A charge sheet related to the applicant and other people related to the strike at the university where there was a fire related to the vehicle.

Discussion at Tribunal hearing, and documents submitted to the Tribunal

1. The applicant provided written submissions to the Tribunal prior to the Tribunal hearing. The relevant parts of the written submissions are summarised as follows:

1. In a submission dated 29 June 2020 the applicant wrote that he disagreed with the delegate decision and wanted to give the Tribunal vital and relevant information which he was reluctant to give the delegate. He claimed to fear doing this because he feared he would be rejected and deported back to Bangladesh where he had a high chance of imprisonment based on false or concocted evidence. He wrote that he was an innocent person who was falsely charged by police and the opposing Awami League. He was not involved in the bombing.

1. He claimed to have bribed corrupt officials to obtain the working visa to depart Australia because he was unable to directly apply for the visa through government channels.

1. He had friends and colleagues at the university who were members of Jammat-e-Islami who encouraged him to join their group. He identified they were Islamic State supporters and were involved in various criminal activities and had been detained in the past.

1. The applicant and his friends were targeted by a senior member of the Awami League whom he named. This was the name he provided to the delegate at interview.

1. As a result of the bombing, his friends asked him to go along with them because Jammat-e- Islami and Islamic State would protect him from police. He feared going with them but had to leave Bangladesh. Police had been visiting his house asking for him as the senior Awami League member asked police to arrest the applicant and imprison him. The applicant was lucky to escape from arrest and from being branded as a Jamaat-e-Islami member associated with his friends in criminal activities. The applicant did not provide this information to the department for fears of rejection. He has since found out that proving the information would not be detrimental to his claims.

1. The applicant identified what he wrote were his ‘change of circumstances since 2017.’The applicant said that his friends had been arrested on drug charges and were imprisoned. The authorities visited the applicant’s family and accused the applicant of drug trafficking for Jammat-e-Islami and for involvement with Islamic State. The applicant wrote that he was ordered to be surrendered but the applicant was in hiding. Despite his family’s attempts to persuade the authorities that the applicant was not involved in the things he was being accused of, they were unsuccessful. The applicant’s family members instructed him to not return back to Bangladesh.

1. His brother-in-law was arrested by police and questioned. When the brother-in-law was released, the named senior Awami League member abducted the applicant’s brother-in-law to get information from him. His brother-in-law was released after he convinced that person that the brother-in-law would surrender the applicant upon his return to Bangladesh. His brother-in-law told the applicant this and advised him not to return to Bangladesh.

1. The applicant repeated his reasons for delaying applying for protection. He said police never stopped searching for him and his brother-in-law convinced the applicant to not return to Bangladesh. He also wrote that he delayed applying for protection because the authorities had found out that his friends were Islamic State fighters and had been involved with war in foreign countries.

1. The applicant criticised the delegate’s questioning process and tone, among other things. The applicant claimed that he was experiencing stress while talking to family members in Bangladesh and he had a mental condition during the delegate interview. The applicant claimed that he did not have the means or financial capacity to appoint a migration agent to assist him to lodge the protection visa. The delegate’s pressure made the applicant fearful to tell the applicant the valid information he had. For the sake of completeness, having listened to the recording, there is no merit in the applicant’s criticism of the delegates tone or questioning. The delegate’s approach was completely orthodox and his questioning not particularly robust.

1. A further written submission dated 24 March 2022 detailed that the applicant had been speaking to his family members in Bangladesh frequently and they provided the applicant with following information. He wrote that:

1. His grandfather was well known in the applicant’s district in Bangladesh and was a war veteran. The applicant’s extended family members became involved in politics due to the grandfather’s popularity and contribution to society after the Bangladesh-Pakistani war. The family were respected and promoted into politics. The applicant’s father supported the Bangladesh Nationalist Party from its inception. This was the reason why the applicant was urged to enter politics was to serve the people.

1. The applicant claimed that Awami League members targeted the applicant’s family members for a long time because they were aware that people would support the applicant’s family entering politics. The applicant claimed that Awami League members sabotaged the family efforts in entering politics. The senior member the applicant identified by name was determined to ruin the applicant’s political career and convinced the police that the applicant was involving in the bombing referred to previously, together with the friends he previously alluded to. The applicant repeated the claimed profile of his friends and the actions taken by police and the named senior member of the Awami League. The applicant claimed that a few months ago, his brother-in-law was once again taken in for questioning and that his brother-in-law was forced to admit that the applicant was smuggling drugs and was involved in the war with Islamic State fighters in foreign countries. The applicant detailed what his brother-in-law told police and detailed that his brother-in-law was again taken for questioning and was asked how the applicant was able to depart Bangladesh. He detailed the response.

1. The applicant wrote that the police officers were convinced that the applicant earned large money through drug smuggling for Islamic State and had bribed politicians. The applicant said that police told would be sentenced to prison for drug involvement and for partaking the in war with Islamic State fighters. The applicant also wrote that he had been informed by his mother that two youths from their next-door neighbours had been taking into custody for joining groups taking control of Afghanistan and were arrested at the border. The neighbours warned the applicant’s mother that the youths had said they were shown photographs of foreign fighters which included the applicant and his friends. The police tortured the youths and got them to agree that the applicant and his friends had fought with them in foreign countries for the Islamic State.

2. The applicant wrote the corrupt conduct paved the way for him to escape Bangladesh. He would not have left if he was not wrongly accused of criminal conduct. He claimed that he would have entered politics in Bangladesh and fought against corruption if he had not had to leave. The applicant provided a Human Rights Watch report on Bangladesh and asked the Tribunal to consider it, referring the Tribunal to ‘disappearance and extrajudicial killings’ and ‘torture.’

1. At the Tribunal hearing, the Tribunal asked the applicant various questions and, relevant to the Tribunal’s findings, the following questions and responses were relevant.

1. The Tribunal asked the applicant why he applied for the work visa to come to Australia. The applicant said that he had provided a written submission and all the details should be there. It was at that time that the applicant disclosed to the Tribunal that he had assistance completing the protection visa application form and the written submissions. The Tribunal asked the applicant to tell the Tribunal himself. The applicant said that he was falsely identified as a terrorist and that is why he applied for the visa to come to Australia. The Tribunal asked the applicant how he knew he had been identified as a terrorist. The applicant said that the named senior Awami League member had put his name forward to police identifying him as a terrorist. This Awami League member harassed him.

1. The Tribunal said that the police came to his family home to look for his whereabouts. The applicant said that he was in the village at the time but at a friend’s house. He knew police attended because members of his family told him that police came. He said this caused him to apply for the working visa to come to Australia. The applicant repeated that police again attended the family home in February 2022. Returning to the applicant being told by his family that police were looking for him when he was at a friend’s house in the village, the Tribunal asked when his family told him this. The applicant said it happened a long time ago and he lived in different places. His family told him to be careful.

1. The Tribunal asked the applicant whether he had ever been beaten or assaulted or suffered harm in Bangladesh. He said he was victimised when he was in a procession and the named senior Awami League member and his people threw a stone at the applicant which struck him below his left eye. The applicant said that this occurred in 2010 but this was not a reason why he left Bangladesh.

1. The applicant was asked whether the reason why he left Bangladesh was because he had been falsely accused of being a terrorist. The applicant said that was one of the reasons, but that he had written all the reasons in the submission. The applicant said he had trouble discussing all his reasons because his presentation was not good. The Tribunal asked the applicant why he could not explain his reasons to the Tribunal. The Tribunal found it odd that the applicant would not be able to recount his own lived experiences and reasons for seeking protection. The applicant said that the named senior Awami League member got the applicant falsely accused to get the applicant out of politics and would go to any extend to harm the applicant, including killing him.

1. The Tribunal noted the applicant had provided documents which appeared to be related to his criminal charges. The applicant said he gave the document to the delegate. He said he had not brought those documents with him when he departed Bangladesh because he had no idea that he would need them.

1. The Tribunal asked the applicant whether upon his arrival in Australia in 2015 he planned to remain permanently in Australia. The applicant said he did not. He planned to stay in Australia for some time and observe things back in Bangladesh. The Tribunal asked what it was that caused the applicant to apply for a protection visa towards the end of his working holiday visa. The applicant said that he came to know that the situation in Bangladesh was very dangerous. When he arrived in Australia on the 12-month visa he thought that things would improve and then he would decide what to do next. He knew about protection visas approximately 6 months after his arrival in Australia. The Tribunal asked the applicant how the situation in Bangladesh at the time of his arrival in Australia was any different to the time he lodged his protection visa application. The applicant again told the Tribunal to refer to his written statement but did say that his name had been included with his friends who have been identified as connected with Islamic State. The applicant said things were very dangerous for him and noted that the police and law enforcement were influenced by the named senior Awami League member.

1. The Tribunal asked the applicant whether he was involved with the Bangladesh Nationalist Party in Bangladesh. He said he was involved with the student wing at university and noted that his family were either involved or supported the party. The Tribunal asked the applicant whether he held any leadership positions with the party and the applicant said he did not. He was just a general member. He was asked whether he was a member of that political party in Australia and he said he was not. He attended meetings once or twice. He confirmed to the Tribunal that he did not claim to fear harm in Bangladesh because he had attended past meetings of the Bangladesh Nationalist Party in Australia.

1. The Tribunal asked the applicant whether the case against him was still outstanding. He said it was. He said he knew this because in February 2022 police came and arrested two neighbours looking for him. His mother told him this.

1. The applicant confirmed that he had raised all his claims in the various material provided.

1. Considering all the material, the Tribunal raised the following concerns with the applicant for his comment, because it appeared to the Tribunal that the applicant was not a witness of truth.

1. First, the Tribunal noted in the applicant’s protection visa application form, he did not claim that he left Bangladesh to seek safety, did not claim to have experienced harm in Bangladesh, and did not claim to move or try to move to another part of Bangladesh to seek safety. The Tribunal noted to the applicant that in response to the question about whether he moved or tried to move to another part of the country to seek safety, the applicant said that was that he did not need to do that because the cause of harm arose after he left Bangladesh, and that he did not claim in the protection visa application form that he had a ‘false case’ against him. (In fact, the applicant specifically claimed that he did not have any outstanding criminal cases against him). On a fair reading of the protection visa application form, the applicant’s claims clearly relate to fear of harm arising since the applicant departed Bangladesh and, given the applicant did not claim in the form to be a member of the Bangladesh Nationalist Party during his time in Bangladesh, this was suggestive that the applicant must have been involved with that organisation after he departed that country, leading to him fearing harm in Bangladesh upon return.

1. The Tribunal put its concern to the applicant about the inconsistency in his evidence and invited his comment about the Tribunal’s concerns. The applicant said that filling in the protection visa application form involved sensitive issues and he had doubt about what to write and what not to write. He claimed he was unable to explain things properly.

1. Second, the Tribunal noted to the applicant that he had delayed applying for a protection visa until approximately 12 months after his arrival in Australia. Given the applicant’s evidence at the Tribunal hearing about his reason for leaving Bangladesh, the Tribunal struggled to accept that the applicant would not lodge a protection visa application shortly after his arrival in Australia if his protection claims were true. The delay and timing of the protection visa application suggested to the Tribunal that the applicant fabricated his protection claims when he got to the end of his visa as a means to remain in Australia. The applicant attributed the delay to the fact that he had no intention to remain in Australia when he arrived in Australia. He noted that apart from what could be described as his political issues, everything was fine for him in Bangladesh, and he had employment there.

1. Included in the Tribunal’s concerns about the delay in applying for the protection visa was the fact that the applicant’s brother, who he identified as being in Australia, had himself applied for a protection visa on 1 July 2013. The Tribunal noted that the applicant had identified that this brother was his contact in Australia in the protection visa application form, and the form also noted that the applicant and his brother at some point resided at the same address in [Suburb 1], New South Wales. To the Tribunal’s way of thinking, if the applicant was genuine in his claimed fear of harm in Bangladesh, he would have lodged the protection visa application shortly after his arrival in Australia, because it is reasonable to suspect that the applicant was aware of protection visas given his brother, who was a close contact in Australia, had applied for that visa previously.

1. In response to this concern, the applicant disputed that he and his brother ever lived at the same address in [Suburb 1] and suggested that when the applicant disclosed his close personal contact in Australia as his ‘brother,’ the person he detailed was not a biological brother but someone who was a ‘brother’ in a ‘cultural’ way. The Tribunal noted to the applicant that was inconsistent with what the applicant put on the protection visa application form.

1. Third, the Tribunal raised with the applicant the fact that the letter he provided from the Bangladesh Jatiobadi Chatradal of [University 1] claimed that he was a [Position 1] and that he also claimed that he was a [Position 1] with that group to the delegate, yet at the Tribunal hearing the applicant claimed to have never held any leadership positions with the Bangladesh Nationalist Party. The inconsistency suggested to the Tribunal that there was no truth to the applicant’s claims about his involvement with that political party. In response to the Tribunal’s raising of the inconsistency in the evidence, the applicant said that at his university, he was just a member of the party, but in his home village, he was the [Position 1] of the party, and said that was the reason why the evidence was inconsistent.

1. Fourth, the Tribunal was concerned about the timing of the production of the documents submitted by the applicant which purported to corroborate his claims, namely the document from the Bangladesh Jatiobadi Chatradal of [University 1] and the various documents that related to what can be described as the applicant’s court case. The fact that those documents were not provided with the applicant’s protection visa application despite the political letter being signed in June 2015 and the court documents relating to events in 2015, suggested to the Tribunal that the documents had been manufactured in order to corroborate the claims. The applicant responded to the Tribunal’s concerns that those documents were not genuine by repeating that he asked for those documents to be sent to him and he submitted them when he got them. The Tribunal asked the applicant why he did not get those documents and submit them with the protection visa application form. The applicant said that he did not know he needed to submit them. This was a curious response, given the applicant foreshadowed in the protection visa application form that he would provide a Bangladesh Nationalist Party member letter. It was also strange to the Tribunal that the applicant would submit academic qualifications instead of relevant material that would corroborate his protection claims. The applicant said he submitted his academic qualifications because he had them available.

1. Fifth, the Tribunal raised with the applicant that he had told the delegate that the ‘false case’ against him occurred after he left Bangladesh (which the Tribunal understands to be an explanation for the delay in applying for the protection visa and the absence of any reference to the case in the protection visa application form), yet to the Tribunal the applicant said that the ‘false case’ was the reason he left Bangladesh. The inconsistency suggested there was no truth to the claim. In response, the applicant said that he perhaps misunderstood the question.

1. Sixth, the Tribunal suggested that the reason the applicant did not disclose the assistance of the person in Bangladesh who helped the applicant complete his protection visa application, and the fact that the applicant on a couple of occasions suggested the Tribunal read the written material in response to the Tribunal’s questions, was due to the fact that the person who assisted the applicant had fed the applicant his protection claims and there was no truth to them. The applicant disputed that this was the case and said that he had difficulty explaining things and that is why his friend helped him.

1. Seventh, the Tribunal put to the applicant its difficulty accepting that the Bangladesh Government would issue the applicant with a new passport [in] 2019 if his claims about his political profile and criminal charges were true. This was due to the fact that the 22 August 2019 Department of Foreign Affairs and Trade Country Report on Bangladesh detailed the following at 5.24:

1. “The Department of Immigration and Passports conducts immigration checks and maintains a list of convicted criminals and persons wanted by security forces and intelligence agencies. The department mostly uses the list to determine whether to issue passports but may also use it to prevent people from leaving the country. Authorities can refuse to issue passports to people who have been convicted of war crimes, moral turpitude or smuggling, where they are suspected of leaving to avoid criminal proceedings, where they are likely to engage in activities outside Bangladesh prejudicial to the sovereignty, integrity, or security of Bangladesh.”

1. The applicant’s response to that information, and his ability to depart Bangladesh on his own passport, was that at the time he departed Bangladesh, he did not have an official case against him. Noting that the applicant was now in possession of a Bangladesh passport that was issued in 2019, and that the country information may suggest that he would not have been issued that passport in 2019 if he had a criminal case against him, the applicant again repeated that he was not officially incriminated in a case at that time. The Tribunal asked the applicant when the case against him commenced, and the applicant responded that there was no ‘formal’ case against him.

1. The Tribunal raised its concern that the applicant had not been truthful in the protection visa application form, because he did not declare that he had previous Bangladesh passports and asked why he did not declare that he had previously held those passports. The applicant suggested that he did not deliberately try to hide the fact that he previously held Bangladesh passports, and that if the delegate had requested copies of previous passports, he would have provided them. The Tribunal wonders how the delegate would be able to know to request copies of previous passports, when the applicant declared in the protection visa application form that he had never had any passport that was expired.

1. Having reflected on the totality of the evidence, and the applicant’s response to the Tribunal’s concerns raised at the Tribunal hearing, the Tribunal has determined that the applicant is not a witness of truth and has manufactured his protection claims in order to be granted a protection visa.

1. The Tribunal does not accept that the applicant or his family were involved in any political activity in Bangladesh, that the applicant left Bangladesh because he had experienced harm in that country, or that the reason the applicant refuses to return to Bangladesh is because he fears future harm in that country. The Tribunal comes to these conclusions for the following reasons.

1. The evidence about the applicant’s claimed lived experiences in Bangladesh as suggested in his protection visa application form and that subsequently raised in his oral evidence to both the delegate and the Tribunal was significantly different, as was the oral evidence between what the applicant told the delegate and the Tribunal. The Tribunal is not satisfied that any ‘difficulty’ the applicant had expressing himself could lead to such a fundamental difference between evidence. The Tribunal also struggles to accept that if it were to believe that the applicant did not put forward all his evidence at the delegate interview because he did not think that it would help him, the Tribunal could find anything other than the applicant was a person who was willing to not tell the truth if he believed it would assist him.

1. Differences between the applicant’s evidence was as basic as something about where he lived in Bangladesh, whether he relocated, and whether he held any leadership positions connected with his claimed political activity demonstrate to the Tribunal that the applicant’s claims were manufacture.

1. When combined with the fact that the protection visa form declares that the applicant received no assistance completing the form (despite telling the Tribunal that a person in Bangladesh had assisted him to complete the form) the Tribunal concludes that someone has feed the applicant protection claims and that the inconsistency is a result of the applicant not understanding what was raised on his behalf. The fact that the applicant on several occasions directed the Tribunal to his written statement because he had ‘already answered the question’ is further evidence that the applicant did not really understand the nature of the claims that had been raised on his behalf because they were not his own.

1. The evidence about the applicant’s ability to depart Bangladesh was also inconsistent and confused. First, it was suggested that the applicant had no difficulty in departing Bangladesh, before the evidence changed to suggest that he needed to bribe officials to secure a visa to leave that country. Next, when the issue was raised about how the applicant would be able to depart Bangladesh given, he had a criminal case against him (and somehow be issued a new Bangladesh passport in Australia despite having a criminal case against him) the applicant’s evidence was that he was not actually been charged. The evidence was confused and changing in what the Tribunal assesses to be the applicant’s running attempt to tailor evidence to address any deficiency in his protection claims.

1. The applicant’s delay in applying for a protection visa was telling. The Tribunal is satisfied that if there was any truth to the applicant’s claims about what he claimed to experience in Bangladesh, he would not have delayed applying for a protection visa until around the time his working holiday visa was to expire. The Tribunal is satisfied that the applicant decided to apply for a protection visa to remain in Australia for reasons not connected with Australia’s protection obligations.

1. The Tribunal is satisfied that the applicant’s protection claims were manufactured in their entirety. The Tribunal is not satisfied that the applicant or his family have ever been involved in political activity in Bangladesh, or that the applicant or his family have ever been harmed in Bangladesh in connection with their political opinion. The Tribunal is not satisfied that any document which suggests otherwise is truthful. The Tribunal is not satisfied that the applicant departed Bangladesh because he experienced past harm or feared future harm for his political opinion or any other reason. The Tribunal is not satisfied that the applicant had to bribe an official in order to leave Bangladesh. The Tribunal is satisfied that the applicant was able to depart Bangladesh because he was of no adverse interest to any person, authority or group in Bangladesh.

2. The Tribunal is not satisfied that the applicant has been charged with any criminal offence in Bangladesh, or that he has been identified as supporting any political party whatsoever. The Tribunal is not satisfied that the applicant’s family are being targeted, harassed or harmed by any person, group or authority in Bangladesh. The Tribunal is not satisfied that any document that suggests otherwise is truthful. The Tribunal is satisfied that the applicant’s narrative about his family in Bangladesh was invented in order to lend credibility to his claims. The Tribunal is not satisfied that there is any truth in that narrative.

1. The applicant did not claim to fear harm in Bangladesh because of any activity he engaged in Australia. He said specifically the opposite.

CONCLUSION

1. The Tribunal is not satisfied that the applicant is a witness of truth. The applicant’s claims for protection are manufactured in their entirety. The documents that the applicant has provided which appear to corroborate some of the claims are not truthful. The applicant has lodged a protection visa for reasons not connected with Australia’s protection obligations.

Refugee

1. For the reasons given above, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm in Bangladesh due to his race, religion, nationality, membership of a particular social group or political opinion.

1. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).

Complementary protection

1. For the reasons give above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal to Bangladesh from Australia, there is a real risk the applicant will suffer significant harm.

1. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).

Member of the same family unit

1. The applicant did not claim to be a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. There is no evidence that the applicant is such a person. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c).

DECISION

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

Nathan Goetz Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)   pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)    that is not inconsistent with Article 7 of the Covenant; or

(b)   that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)    for the purpose of obtaining from the person or from a third person information or a confession; or

(b)   for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)    for the purpose of intimidating or coercing the person or a third person; or

(d)   for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country, in relation to a non-citizen, means:

(a)    a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)   if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H  Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a

well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)   conceal an innate or immutable characteristic of the person; or

(c)    without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)   the persecution must involve serious harm to the person; and

(c)    the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of

serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)   significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)   significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K  Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)   disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)   any other member or former member (whether alive or dead) of the family has ever experienced; where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L  Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)    a characteristic is shared by each member of the group; and

(b)   the person shares, or is perceived as sharing, the characteristic; and

(c)    any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)   the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)    protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)    the person can access the protection; and

(b)   the protection is durable; and

(c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)   holds a protection visa of the same class as that applied for by the applicant. (2A) A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)   the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)   the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b)   the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

…