1702638 (Refugee)

1702638 (Refugee) [2022] AATA 3732 (16 August 2022)
Corrigendum
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mahalingam Sutharshan (MARN: 0961664)
CASE NUMBER:  1702638
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Mr S Norman
DATE OF DECISION:  16 August 2022
DATE CORRIGENDUM
SIGNED:4 November 2022
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

In paragraph 70, it should state ‘… the Tribunal is not satisfied this would cause his identify to be known to the Bangladesh government.’
Mr S Norman
Member
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1702638
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Mr S Norman
DATE:16 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 16 August 2022 at 10:44am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – membership and activity in political party – meetings, protests and positions as local official – attacked and house raided – failed asylum seeker and returnee perceived as wealthy – credibility – continued residence and work within same area – multiple travel to third countries and returns – low profile before departure, elapse of time and limited political activity in Australia – members of family unit – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1), 5J, 36(2), 65
Migration Regulations 1994 (Cth), r 1.12(4), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 February 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act). The applicants who claim to be citizens of Bangladesh, applied for the visas on 8 October 2015.
The Department delegate’s decision was lodged with the Tribunal.
The applicant attended the Tribunal hearing on 9 August 2022. The Tribunal was assisted by an interpreter at hearing. The applicants were assisted by their migration agent, including at hearing. At the commencement of the hearing, the Tribunal was also advised there were no longer any proposed witnesses from which to take evidence.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
For the following reasons, the Tribunal has concluded the decision under review should be affirmed.
The applicants’ membership of the same family unit:
The first named applicant is [the applicant] (DOB: [Date] – the applicant husband and hereafter ‘the applicant’); the second named applicant is [his wife] (DOB: [Date] - hereafter the ‘applicant wife’); and their dependent is [the applicant son] (DOB: [Date] – hereafter the ‘applicant son’). One of the applicant’s children (an adult daughter) continued to reside in Bangladesh with her husband and her own children.
Neither the applicant wife nor the applicant son lodged claims to be owed protection, relying on their claimed membership of the applicant’s family. Neither did the applicant wife nor applicant son attend the Tribunal hearing.
The applicants provided a birth certificate for the applicant, the applicant wife and the applicant son.[1] They also provided evidence of the marriage between the applicant and the applicant wife.[2]
[1] Department file (hereafter ‘Department’) – from folio 197.
[2] Department – from folio 194.
Regarding ‘secondary applicants’, s.36(2)(b) & (c) of the Act 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 to include a spouse of the family head (r.1.12(4)(a)); and a dependent child of the family head (r.1.12(4)(b)).
Dependent child is defined in regulation 1.03, as follows:
“dependent child" , of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:
(a) …
(b) has turned 18 and:
(i) is dependent on that person …
The evidence at hearing indicated inter alia the applicant supported his wife and his son in Australia. For the purposes of this decision, the Tribunal proposes to accept the applicant wife and applicant son are members of the same family unit as the applicant.
The applicant’s receiving country / s.36(3)-(5A) of the Act:
As noted in the delegate’s decision, the applicant had lodged:[3]
[Passport details of applicants deleted].
[3] Department – from folio 44; and from 14.
The Tribunal referred to country information which indicated that Bangladesh passports or travel documents, may be renewed in Australia.[4] When discussed the applicant said he was aware of this, but he had not renewed his passport as the applicant son had done so in Australia, and his passport was not returned for almost 6 months. When asked why, the applicant said he believed it was due to the incompetence or negligence of the Bangladesh Consulate staff. Be that as it may, the Tribunal is satisfied the applicants’ can renew their passports in Australia.
[4] Renewal of MRP, Bangladesh High Commission, Canberra Australia, Renewal of MRP | Bangladesh High Commission Canberra (bhcanberra.com) , accessed 19 November 2021.
Further, and based on the evidence, the Tribunal accepts the applicants are citizens of Bangladesh and that Bangladesh is their receiving country.
The applicant’s (recent) migration history:
At hearing the applicant confirmed he arrived in Australia [in] August 2015 and he had departed Bangladesh lawfully, within 24 hours of his arrival. As then recorded in the delegate’s decision, the applicant’s more recent migration history follows:
[Australian visa application and arrival information redacted].
Prior to his final departure from Bangladesh (in late August 2015), the applicant had also engaged in the following travel for the purpose of business and/or holidays:
[Tourist travel to Countries 1-3 redacted].
The applicant’s residence in Bangladesh:
[Residential addresses 1-4, birth to 2015 redacted].
The Tribunal’s assessment of the applicant’s claims:
With his Protection visa application, and in summary, the applicant claimed:
·     He had owned/operated [a Product 1] (since 1990) as well as a ‘[Product 2] industry’ business (since 2007) in Bangladesh – though he eventually ceased working in these businesses in 2015
·     the applicant had been a member of the Freedom Party[5] - after joining in August 1987 as the coordinator of [an] Area of the Greater Dhaka City[6]
·     he later became a member and supporter of the Bangladesh National Party since 1997.[7] The applicant also claimed his family had long been known as supporters of the BNP (at hearing he said his family support for the BNP commenced in the late 1990s)
· in writing, the applicant claimed to have held ‘various positions for the BNP in Dhaka’. His most recent position was as [Official position 1] of [Ward] in Dakar City,[8] and he commenced in this role in 2014. There was no indication this ‘role’ had been shared
·     the applicant also claimed to hold the profile of a political activist arising from his political opinion (due to his claimed political activity in Bangladesh and Australia), and that as a consequence, he would be targeted for revenge by his opponents in Bangladesh
·     the applicant did not believe he could relocate within Bangladesh
1987 to 1997 and the applicant’s father:
[5] Department – folio 184.
[6] Department – folio 182.
[7] See Department – folio 180.
[8] Department – folio 48.
In his Protection visa application, the applicant continued:
· His father was a successful businessman with a [Work sector] business and he had also been a supporter of the Muslim League – and it was due to that he had lost his business reputation during the 1971 liberation or Bangladesh[9]
[9] Department – folio 185.
When discussed at hearing, the applicant said his father passed away in 1978. He did not claim this was for any reason other than natural causes. However, his father had supported the Muslim League, which the applicant said was more focussed on the politics in Pakistan. The Tribunal does not understand any claim was made that any harm arising from the applicant’s father’s political or other activities, impacted the applicant or his family. The Tribunal will therefore accept this to be correct.
Next, in an undated statement, the applicant said:
·     He joined the Freedom Party. In 1990 the Freedom Party was celebrating in the street when they were attacked by a group of Awami League activists led by a [Mr A].[10] As a result of the attack, the applicant was injured and required medical assistance in hospital (at hearing he said he was released on the same day)
·     the delegate noted that a [Mr A] was the then ‘current Awami League Parliament member in Bangladesh’
·     during the 1991 general election in Bangladesh, the applicant assisted with the electioneering of the Freedom Party. The applicant was given an award and promoted to the position of [Official position 2] of Dhaka city in 1992. The applicant said he worked under a [Mr B]
·     in the 1996 general election in Bangladesh, the Awami League won the election ‘after 21 years’. [Mr B] and others were arrested and accused of assassinating the then Prime Minister. Furthermore, ‘countrywide Freedom party leaders and activists were seriously harmed’
·     the applicant said the police and detectives raided his home ‘on a few occasions and insulted his wife in his absence’[11]
·     at hearing, the applicant said he was still working full time in his usual work at the time of the raid/s but he was moving around Bangladesh for work (buying and selling [Product 1]) so he was not able to be readily located. Be that as it may, both he and his family continued to reside at the same address (or very near the same address) for many years both before and after the claimed raids – and he continued to work in the same business for many years both before and after the raids. Therefore, whatever the ‘raids’ were about, they were not sufficient to cause the applicant or his family any serious or significant concern at that time (being in and around 1996)
·     as the Freedom Party had subsequently ‘lost its ground in Bangladesh politics with so many of them killed, executed by death sentence, detention while many were absconding to many overseas countries for fear of their lives’(sic) – the applicant decided to join the Bangladesh National Party (BNP) in 1997[12]
[10] Department – folio 182.
[11] Department – folio 181.
[12] See Department – folio 180.
During this period (1987 to 1997), the Tribunal noted the applicant’s work and residence in Bangladesh was relatively stable (even when he moved residence in January 1998 and November 2001, it was to areas within a few kilometres of his prior residence in Dhaka - and he said at hearing it was not possible to hide in Bangladesh due to the strong networks his enemies allegedly had). The Tribunal believes that if the adverse interest in the applicant was as serious as he claimed, he and his family would have taken far more substantial steps to protect themselves.
The applicant had referred to having moved to his family home in [District] for some months in 1996 (around 35kms from his own home and on the outskirts of Dhaka); and he then travelled to and resided in [Country 4] for approximately one year. He said he returned to Bangladesh at the end of 1997 as he had negotiated with the Awami League to do so, and he was not then subject to ongoing harassment (though other claimed instances of harassment due to his claimed political activities for the BNP, are discussed below). The Tribunal will accept this to be correct. The Tribunal will also accept the applicant’s family did not move from their usual residence/s in Dhaka during this period.
In the circumstances, the Tribunal is not satisfied the now [Age]-year-old applicant, who also conceded at hearing that his activities for the BNP in Australia had been very limited in the last few years (see below discussion), would now have a real chance of suffering serious or significant harm in Bangladesh, for reason of his, or his family’s, activities for the Freedom Party between 1987 and 1997. The Tribunal will also accept the Freedom Party no longer exists in Bangladesh (as claimed by the applicant), though some supporters of that party continue to support the Freedom Party in Australia.
1997 to 2014:
As noted above, the applicant said he was a member and supporter of the Bangladesh National Party (BNP) since 1997.[13] He claimed, in writing, to hold the profile of a political activist principally arising from his political opinion (though he said his family also supported the BNP from the late 1990s). He feared that as a consequence, he would be targeted by his opponents.
[13] See Department – folio 180.
In the Department decision, the delegate stated:
·     In the 2001 general election in Bangladesh, the BNP won an absolute majority and ‘ruled the country peacefully’. However, the ‘security situation’ deteriorated in 2006 for BNP aligned persons
·     Around this time, the applicant started a [Product 2] business in Dhaka (in March 2007) – though he also continued as the proprietor of his [Product 1] business (inter alia buying and selling [Product 1])
·     In 2007, the army came to power in Bangladesh and ‘we were losing confidence in the international market and customers and as a result the [Product 2] business slowed dramatically’
·     Power was returned to the Awami League in Bangladesh in 2008, and the BNP and other groups started to be persecuted, arrested, kidnapped, killed and placed on trial
·     the applicant said that he and his family had been attacked in November 2009.[14] At the time he wished to report the attack to the police, however he believed they would not respond effectively as the attackers were from the Awami League and he believed the police would not prosecute Awami League supporters
[14] Department – folio 185.
As recorded in the Department interview of 13 April 2016, and as the Tribunal confirmed at the hearing, the applicant’s family were not attacked in November 2009. It was only he that was allegedly attacked while at a demonstration. Therefore:
·     in November 2009 the applicant was engaged in a demonstration organised by the BNP against the Awami Government, protesting the countrywide kidnapping and killing of BNP leaders and activists. Police and Awami League activists attacked the protest and some of the protesters were injured and beaten – some were beaten with ‘hockey sticks’ and the applicant was subsequently hospitalised and released after primary treatment
·     at hearing, the applicant explained he was released from hospital on the same day as the attack
·     on the following day the Rapid Action Battalion (RAB) raided the applicant’s house and his wife was ‘massively questioned’ about the applicant’s whereabouts. The applicant feared the intention was to lay a false charge against him (though none were ever laid)
·at hearing, the applicant also said his maid was slapped during the raid. He was unsure, but he speculated it may have been due to her not being (words to the effect) helpful to the attending officers. The maid did not require medical attention
·     the applicant then again fled to his ‘country home’ (his parent’s home) at [District] (some 35kms from his own home in Dhaka) and then he briefly resided elsewhere with relatives and friends for a few months, while remaining ‘in hiding’. The applicant then ‘negotiated with the local [District] Awami League Parliament member … to stop harassing him and his family so that he could [return to] his business’. However, other persons in the BNP were arrested – though the applicant and his family were able to continue to reside in their usual residence in Dhaka s

The country information stated:
3.63 Politics in Bangladesh generally centres on political personalities, and social, political and workplace connections, alongside or instead of broader party policies. Political patronage to particular figures is a motivating factor in voting, campaigning and party membership. Similarly, family alliances tend to be very important. Both of the major parties are organised into auxiliary organisations, for example student leagues or women’s leagues, sometimes based around particular professions, such as lawyers or doctors …
3.64 Being a member of a political party or one of its auxiliary organisations may assist in getting a job … [though] such membership is unlikely to be the sole determinant of whether or not someone is able to gain employment. Social networks and personality-driven politics are important in Bangladesh.[15]
[15] DFAT COUNTRY INFORMATION REPORT, BANGLADESH, 22 August 2019.
At hearing, the applicant sought to draw a distinction between BNP supporters and BNP activists. For most of his time in Bangladesh, the applicant had worked full time (at least up until early 2015). He said that ‘BNP activists’ did not work full time, as they focussed on working for the BNP - though ‘BNP supporters’, who may attend meetings/rallies etc, and who may provide donations, commonly worked full time and did not engage with the BNP to the extent that activists did. The Tribunal then confirmed with the applicant that he was at this time (1997-2014) an ordinary supporter of the BNP, as were many other people. The applicant also said he knew that to pursue his business in Bangladesh, he had to be associated with one of the political parties and the Tribunal also accepts this to be a common view – though at hearing the applicant conceded his son-in-law engaged in business in Bangladesh without having any political connections.
That said, given his concession of being an ordinary BNP supporter during this period, the Tribunal accepts this to be correct. The Tribunal will also finding that during 1997 to 2014 the applicant may have been subject to some harm, along with others, ie. when he attended a demonstration in 2009. The Tribunal will also accept the applicant, or his family, were questioned by the authorities, but that nothing further came of this.
Regarding kidnap, the applicant claimed there was a threat to kidnap his wife and son while he was in Bangladesh, but he was the ‘most wanted person’. At hearing, he also said he may spend time residing (hiding) in his parent’s home in [District] in 2012-2013 – usually two or three days at a time. The applicant did say his wife and son were randomly questioned to obtain his whereabouts – when he was ‘in hiding’. However, and again, the Tribunal notes that though allegedly at risk of harm, he continued with his usual work (though based in Dhaka he was able to travel around), and he at times, and his family consistently, continued to reside in their usual Dhaka residence (without apparently suffering serious or significant harm – or taking steps to protect themselves). The Tribunal accepts this to be correct.
Further, since arriving in Australia (on [in] August 2015) the applicant has had very regular contact with his family in Dhaka (his married daughter, grandchildren, brother etc), and when asked what they discussed, there was no evidence of any adverse interest in the applicant, or any other family member, since his arrival. The Tribunal also accepts this to be correct.
Next, and regarding the claimed November 2009 raid on the applicant’s home, and which caused him to go into hiding for some time, the Tribunal again notes that while the applicant was ‘in hiding’ his own family took no steps to protect or otherwise hide themselves. He had claimed that he was the one of adverse interest to his political/other opponents. However, the likelihood of close family members being targeted for harm in Bangladesh and for a range of reasons,[16] indicated to the Tribunal that if the applicant was of any material adverse interest, his family would have been at risk, and he and they would have taken serious steps to hide or otherwise protect themselves. The fact they did not, has satisfied the Tribunal the applicant was not of any ongoing adverse interest to anyone in Bangladesh at this time, for reason of his claimed political activities.
[16] See [3.85] DFAT COUNTRY INFORMATION REPORT, BANGLADESH, 22 August 2019; and see UK Home Office, 2021 Country Reports on Human Rights Practices: Bangladesh.
In the circumstances, and even if the applicant’s home in Dhaka was attended by the authorities in November 2009, I do not accept this caused the applicant any ongoing concern, or that it would now give rise to a real chance he would suffer serious or significant harm in Bangladesh. Neither do I accept the applicant was in hiding in 2012-2013 as claimed above.
Next, the applicant had advised that he had travelled to [Countries 1, 2 and 3] in 2015, to visit business acquaintances for his [Product 1] business and on holiday. The Tribunal notes the applicant also claimed to have been subject to extortion attempts between 2010 and 2015. At hearing, the applicant said he knew the local Awami League person in Dhaka, and he was able to negotiate with him so that extortion attempts were ‘not regular’. When discussed at hearing, the Tribunal understood the applicant to have claimed that small amounts of money were requested by members of the Awami League and or others but again, this was ‘not regular’.
The Tribunal referred to his 2015 travels (on holiday and or business), and confirmed the applicant did not even enquire about obtaining protection in countries like [Country 3] or [Country 2], and neither did he claim to have been (ie) forced to hide for reason of any alleged extortion request. He also did not cease his [Product 1] business (though he commenced a [Product 2] business in 2007), and again, he and his family’s residence in Dhaka remained stable. Therefore, whatever the extortion attempts were, or might continue to be on return, the Tribunal is not satisfied they constituted or would constitute, serious or significant harm for the applicant in Bangladesh.
Accordingly, and given the above findings, the Tribunal does not accept the applicant has a real chance of suffering serious or significant harm in Bangladesh, for reason of his political activities in the period 1997 to 2014. Be that as it may, the Tribunal will accept that during that time, the applicant became known to some local persons near his home/work in Dhaka, as someone who supported the BNP.
2014 – 2015:
Regarding the applicant’s political activities for the BNP in 2014-2015, it was claimed:
·     The applicant held various positions for the party in Dhaka. His most recent position in 2014 was as [Official position 1] of [Ward] in Dakar City[17]
[17] Department – folio 48.
·     when discussed at hearing, the applicant said he only held one formal position with the BNP in Bangladesh – and which position he shared with another named person. He said that was the abovementioned [Official position 1] role and he started in this position in 2012. For the purposes of the following discussion, the Tribunal will accept this is correct
·     The applicant said the other person with whom he shared the position of [Official position 1] of [Ward], was a ‘[Mr C]’ (in writing, the applicant had referred to having obtained this position earlier, but at hearing he said it was in approximately 2012) - evidence of the role lodged
·     He said he was in charge of organising meetings and ‘collecting people for peaceful protests’. He said that around 50 to 60 people would attend the ‘protests for peace’. He also provided financial donations to the BNP
·     on 5 January 2014 there was a national election in Bangladesh and the applicant ‘in conjunction with other local leaders and activists openly participated in meetings and demonstrations against the ruling party’ – being the Awami League
·     At hearing, and when asked about his activities for the BNP (as [Official position 1]), the applicant said organising meetings. When it was put to him his explanation/s were not particularly detailed, he said he would instruct other party workers to ask other people to attend the BNP meetings. It was also commonly the case the BNP (through donations paid by people like the applicant) would have to pay people to attend BNP meetings/rallies. He also said the meetings/rallies may occur 5-10 per year, but in 2013-2014, this may have been reduced to little more than five per year before such meetings/rallies ceased to take place. The applicant may also attend meetings and or demonstrations – though he did not claim to speak at such events. The Tribunal accepts this to be correct
·     However, the applicant’s evidence did not indicate he had more than very little engagement in BNP activities, including while he shared the role of [Official position 1] of [Ward], since around 2012 (or 2014)
·     In writing, the applicant then said he ‘became an eyesore to the Awami leaders and activists … and he feared he would again be arrested’
·The applicant had also said his house at [Suburb 1] was repeatedly attacked and vandalised (though he later conceded it was his elder brother who had in fact lived in the [Suburb 1] house for many years). Further his ([Product 1] workshop) business at [Suburb 2] was burnt down [in] April 2015 (though at hearing, the applicant appeared to indicate nothing was actually burnt down, and it was only the case that fire/s had been started in the street, sometimes in front of certain premises he or his brother owned). The applicant also said that loud shouting and/or swearing took place in the street outside his home, but he conceded this would affect all persons in his neighbourhood equally, and that some of his neighbourhood would support the Awami League and others would support the BNP. The Tribunal accepts this is correct – but this did not indicate the applicant was specifically targeted by such incidents
When discussed at hearing, and as noted above, the applicant conceded he had not lived in the house in [Suburb 1] (in Dhaka) since 1998, and that at the time of the claimed attacks, his brother had resided at that home for many years. At hearing, the Tribunal said it may appear that his brother was the target of that attack (in April 2015). Furthermore, and as the applicant said at the commencement of the hearing, the brother was still living and working in Dhaka – and without any claim of any harm to him at least since 2015. The applicant said the brother had to subsequently sell this home, but he then said this was due to the brother’s business failing so he had to sell the home in order to fund his business. The Tribunal accepts this to be correct.
The applicant had initially said the brother continued to work in the business, then the brother had a guiding role while his son ran the business and/or the business had ceased. Be that as it may, and irrespective of what the position is, the Tribunal accepts the house belonging to or resided in the by the brother was not burnt down, though a fire was set alight in the street. The Tribunal will accept the gate of the house was damaged. However, the Tribunal is not satisfied the April 2015 incident is in any way related to the applicant; or that it may now give rise to the applicant suffering serious or significant harm in Bangladesh. That is because that April 2015 incident was either a random attack or directed at the applicant’s brother – and the brother, who remained in Dhaka, had not been harmed for any reason since that incident.
Next, the applicant said his ‘political enemies in Dhaka’ are still there and he would be harmed on return. The country information stated:
5.3.4 The BTI[18] 2020 report noted that:
[18] Bertelsmann Stiftung, ‘BTI 2020 Country Report – Bangladesh’, 2020. Last accessed: 29 May 2020.
Over the years, the BNP’s support base has declined, since it has been out of power for the last 12 years. There is a strong culture of clientelism that connects the parties to its cadres, who work tireless to support the party organization at the grass root level. In turn, they expect to benefit once their party comes to power. … The BNP support base has eroded, as the party has been in the political wilderness for so long. The party has experienced a leadership vacuum and lacked a visionary political narrative to fight the ruling party. Its political narrative was confined to the release of its leader [imprisoned on corruption charges…]…
…..
10.2.1 The BTI 2020 Report noted ‘There is complete intolerance for any point of view that is seen as being in opposition to the government.’ According to the Freedom House report, Freedom on the Net 2019, covering the period 1 June 2018 to 31 May 2019, ‘The ruling Awami League (AL) has consolidated political power through sustained harassment of the opposition and those perceived to be allied with it …’
…..
10.2.2 The DFAT report noted that, since the AL came into power in 2008, it had considerably restricted the activities of opposition parties, particularly the BNP and JI, by ‘… using police and other security forces to arrest thousands of opposition political party members and supporters, often in conjunction with political demonstrations; …’
…..
10.2.4 The HRW report also noted ‘While the police promptly launched investigations and made arrests in attacks on the ruling party, it ignored complaints from the opposition.’
…..
11.2.4 Odhikar reported that during the first three months of 2020, ‘there have been various allegations against Awami League, Chhatra League and Jubo League leaders and activists for attacks on opposition party leaders-activists, abduction, beatings of university teachers, brutality on students and ordinary citizens and violence against women across the country.’[19]
[19] UK Home Office, Country Policy and Information Note Bangladesh: Political parties and affiliation Version 3.0 September 2020.
In the 2019 country information report on Bangladesh, DFAT stated the January 2014 national elections were the most violent in Bangladesh history, and the period leading to the December 2018 national elections were also marked with some violence, primarily of an inter-party nature.[20] On 11 September 2021 Prothom Alo reported, the ‘Awami League is in power for 12 years. BNP and other opposition parties have remained somewhat inactive. As a result, most of the political conflicts are taking place within the ruling party,’[21] and, ‘More than one senior party leader…told Prothom Alo that the party leadership did not have to think much about opposition parties.’[22]
[20] DFAT COUNTRY INFORMATION REPORT, BANGLADESH, 22 August 2019, [4.18].
[21] viewed 9 November 2021.
[22] viewed 9 November 2021.
Also, the BNP had contested the 2018 national elections as the lead member of the four-party Jatiya Oikya Front; and its alliance members are: Gono Forum; Jatiya Samajtantrik Dal-JSD; Nagorik Oikya.[23] Gono Forum has two seats in parliament. On 6 December 2021, Prothom Alo reported that, ‘Oikya Front now inactive’’.[24]
[23] Political+structure, viewed 3 November 2021.
[24] viewed 3 November 2021.
A Bangladesh newspaper reported in January 2022, that ‘108 thousand cases have been filed against 3.5 millions leaders and activists from 2009 to July last year. Most of the cases were filed in 2013 and 2015 before and after the parliamentary elections.’[25] Country information on whether the majority of lawsuits against the BNP leaders and activists would be dismissed by the Bangladeshi courts if they are without substantial basis, or whether there is a high conviction/imprisonment rate, was not located. However, various sources indicated there were instances where Bangladesh courts have dismissed cases if they are without substantial grounds. Sources also indicated that a large number of lawsuits against the media and individuals, particularly in relation to the Digital Security Act (DSA), have been dismissed by Bangladesh courts.
[25] BNP Leaders In Double Terror, 24 January 2022, BNP Leaders In Double Terror - Wellnews24 - A Trusted Bangladesh News Source , accessed 9 August 2022.
After putting the gist of the country information to the applicant for comment, and given the Tribunal was not (now) satisfied he held more than a low profile with the BNP in Dhaka, and given he had not (ie) been subject to any false charges prior to or after departing Bangladesh, and given the Tribunal is not (now) satisfied there would be any reason for such charges to be levelled against the applicant in future (due to his lack of any political activity in Australia for at least the last four years - discussed below), the Tribunal said it may not accept he would be of any further adverse interest to anyone on return to Bangladesh, for reason of his accepted political activities.
The applicant did say his political enemies were still in Dhaka and Bangladesh, and he may be subject to further extortion attempts. However, the claimed extortion attempts did not motivate the applicant to depart Bangladesh from 2010 until 2015; and as stated above, even should they occur, the Tribunal was not satisfied they constituted or will constitute, serious or significant harm for the applicant on return to Bangladesh. After then considering the accepted evidence, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Bangladesh, for reason of his BNP activities in Bangladesh in 2014-2015.
Further, though the applicant claimed both he and his family supported the BNP, and they were known to support the BNP, the Tribunal notes the applicant has family members (including brothers, sisters and his daughter and grandchildren) in Dhaka, and except for the claimed raid on the brother’s home in April 2015 (discussed herein), there did not appear to be any other evidence of any real adverse interest in any family member at any other time. In the circumstances, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Bangladesh, for reason of the political activities of him or his family in Bangladesh.
Delay in departing Bangladesh:
As it was discussed by the Department delegate, the Tribunal has referred to the following. The Tribunal notes the applicant claimed to have ceased most if not all work in Bangladesh from early 2015 (though he did travel during 2015), and he was allegedly in hiding for some time immediately prior to departing Bangladesh in late August 2015. The delegate noted the applicant had been granted his visa to Australia on 6 August 2015, but he had not actually departed Bangladesh for around three weeks. The applicant said it took him a ‘few weeks to settle his account with his [Product 2] business’ before coming to Australia as he needed extra money to cover the expenses of travelling to Australia.
At hearing, the Tribunal understood the applicant claimed to have commenced a second [Product 2] business in mid-2014, but he ceased working in that business in early 2015. The Tribunal understands the applicant was in the process of settling his financial interests in the second [Product 2] business prior to his late August 2015, final departure from Bangladesh. Be that as it may, the Tribunal accepts that in some circumstances, a person may ‘settle their accounts’ prior to ‘fleeing’ to a country where refuge is sought. In the circumstances, the Tribunal has decided not to draw any adverse inference about this. The Tribunal will therefore continue to consider the case based on all other findings.
Since arriving in Australia – the claimed September 2015 raid on the applicant’s Dhaka home:

After arriving in Australia on [in] August 2015, the applicant’s daughter advised him his house in [Suburb 3], Dhaka (where he and his family had resided between January 2001 and August 2015) was raided [in] September 2015 by Awami Chatra League and Jubo League extremists – though he later thought it may have been raided by members of the police or Rapid Action Battalion (RAB). The raid on his house had made the news and was recorded in the daily paper (evidence lodged). In the Department decision, and referring to evidence lodged, the delegate stated:
· A Bangladesh newspaper article/s lodged with the Department did not identify page numbers – the date was [a different date in] September 2015 (a translation was lodged[26])
[26] Department – folio 50.
In response to the Tribunal s.424(2) letter, the applicant also lodged:
·     Photograph titled ‘To attend the birthday program for [a named person] in 2018’
·     A second untitled photograph
·     Two photographs titled ‘to participate in protest for Sheikh Hasina in April 2018’
·     A photograph titled ‘to speech (sic) the Seminar for Democracy organised by Australia BNP in 2018’
A 5 January 2015 BBC article reported the escalation of violence between the Bangladesh National Party (BNP) supporters and the ruling party Awami League (AL) supporters.[27] It said that ‘Dozens of BNP workers have disappeared since last year's [2014] election, with human rights groups blaming the government - although it denies this.’[28] Further, and as stated above, in its 2019 country information report on Bangladesh, DFAT stated the January 2014 national elections were the most violent in Bangladesh history, and the period leading to the December 2018 national elections were also marked with some violence, though primarily of an inter-party nature.[29]
[27] 'Bangladesh opposition leader Zia calls for blockade', BBC New s, 05 January 2015, 20211105135127.
[28] 'Bangladesh opposition leader Zia calls for blockade', BBC News, 05 January 2015, 20211105135127.
[29] DFAT COUNTRY INFORMATION REPORT, BANGLADESH, 22 August 2019, [4.18].
When discussed at hearing, the Tribunal said it may find the applicant had a low political profile in Bangladesh, that the RAB/police would have access to information that he had already lawfully departed Bangladesh, that there were high levels of document fraud in and from Bangladesh,[30] and irrespective of the aforementioned new article, the Tribunal may not therefore accept the raid on his home in Dhaka took place as claimed in 2015. In response, the applicant said it may have been members of the Awami Chatra League or Jubo League, who had told the RAB/police to raid his home. The Tribunal accepts it is possible the applicant’s support of the BNP was known to some local persons near to his Dhaka home. The Tribunal also accepts the RAB/police may act on the instigation of local persons connected to the Awami League, particularly at a time when the BNP was being targeted by the Awami League.
[30] See DFAT COUNTRY INFORMATION REPORT, BANGLADESH, 22 August 2019, from [5.39].
However, and as would be apparent by some of the findings herein, the Tribunal was not satisfied the applicant was a generally credible witness. Therefore, and given the Tribunal is satisfied the applicant’s BNP political support in Bangladesh was low profile, and given his home in Dhaka had not been targeted prior to that (though I will accept that a fire may have been set alight in the street outside or near his property/s and shouting may have occurred which would have disturbed the neighbourhood generally – and I accept he or his family may have been subject to some questioning), the Tribunal is not satisfied the applicant’s house in Dhaka was raided in September 2015, for any reason claimed by the applicant, or for any reason at all. Arising from the accumulation of adverse credibility findings in this decision, the Tribunal will also reject the translated media article as false.
Since arriving in Australia [in] August 2015 – political activities:
By letter dated 19 July 2021, the ‘Bangladesh Nationalist Party (B.N.P. Jatiotabadi Dal)’, and signed by the ‘[Official] of BNP [Australia]’, after claiming to have met the applicant in 2015, and stating the applicant engaged in BNP activities in Australia, it was stated:
Unfortunately, the politics in Bangladesh is experiencing a dark stage, where BNP leaders and activists are subjected to torture, abduction and killings by the dictatorial schemes of current political leaders. This is endangering many BNP members, as they are receiving death threats and many false cases are being made against our people by the ruling government. For this regrettable reason, [the applicant’s] return to Bangladesh will face him with persecution.
I am fully supporting [the applicant] to reside permanently in Australia. For further information regarding [the applicant], please do not hesitate to contact me on [phone number provided]
In extensive migration agent submissions dated 18 November 2021, amongst other things, country information was referred to, the applicant’s claims were largely repeated, the applicant’s profile was said to likely cause him to be harmed in Bangladesh, that the Awami League use organs of the state to target opposition activists, there is ongoing political violence in Bangladesh, that the applicant’s evidence should be presumed to be true, and various other articles and other evidence (as Attachments) were lodged in support. The country information considered by the Tribunal also stated:
3.69 …most political blogs about Bangladesh are now written outside the country … Major political parties have a strong presence abroad, including in Australia. It is unclear whether local party activists based abroad actively monitor social media and/or report back to party headquarters in Bangladesh, but DFAT assesses that this is possible.[31]
[31] DFAT COUNTRY INFORMATION REPORT BANGLADESH 22 August 2019.
In his written statement dated 18 November 2021, the applicant said he continued to engage in BNP political activities in Australia. He attended events and functions organised by the BNP in Australia, including the Deputy chairperson’s birthday party, the death anniversary of the founding president, protests against the visit to Australia of the Awami League leader in 2018, and seminars and meetings organised by the BNP in Australia. Due to his attendance at the Awami League leader protests in Australia, it was said he ‘became well-known within the media in Bangladesh’.
Also, in his written statement dated 18 November 2021, the applicant referred to an incident in 2020 when a friend was arrested by the police in Bangladesh. He was later released on bail but continued to face a court case and intimidation and harassment. At hearing, the applicant said this person had also attended the 2018 Sydney protest. The applicant went on to explain that around 150-200 persons attended the protest and he was one of the attendees. The applicant feared he too would be arrested due to his involvement in defaming the Awami League leader at the Sydney protest in 2018. The applicant also said there is a very strong Awami League support group in Sydney and they monitor the BNP activities and activists in Australia. He fears he is now known to the Awami League leaders and authorities in Bangladesh.
In the Department decision, and referring to evidence lodged, the delegate stated:
· at the Department interview (and with the Tribunal) the applicant presented colour photos of himself with other members of the BNP. The delegate believed the photographs appeared to have been doctored or photoshopped in a ‘very obvious and clumsy attempt’ to place the applicant at ie, a BNP conference. When discussed at the interview, the applicant was said to be ‘adamant the photo was genuine’
· the delegate continued that the photograph/s ‘clearly show the applicant’s image appearing in crisp definition when compared to other people present in the image’. The delegate was satisfied the image was cropped (ie) in Adobe Photoshop and the applicant had been placed amongst men speaking into microphones. The head of the applicant was markedly smaller, even accounting for perspective, and this had resulted in a very poorly edited photographic edit. In relation to finding that he had provided a fraudulent photograph, the delegate was satisfied this cast doubt on the applicant’s claims to be a political activist.
The Tribunal considered these photos (or at least electronic copies), which had also been lodged with it – being of the applicant’s claimed political activities in Bangladesh and/or Australia. These photographs, all showed the applicant looking directly at the camera, where virtually all other participants were looking elsewhere. Though there appeared to be a fair degree of activity in many of these photos, the applicant was looking quite calm and straight at the camera in all photos. Two of the photographs appeared to show the applicant at a ‘protest for Sheikh Hasian in (Sydney in] April 2018’. One was said to be taken at a speech for Democracy organised by the BNP in Australia in 2018.
When discussed at hearing, the applicant said (words to the effect) he did not ‘fight to the front’ of the photo group which was ‘why he looked calm’. Also, while he could not confirm the photos of his political activities that a friend had sent from Bangladesh were genuine, it was not his intention to lodge fraudulent documents with the Tribunal. However, the photos were of events the applicant allegedly attended (both in Bangladesh and/or Australia), and the Tribunal does not accept it plausible the applicant would not have more of an idea as to whether the photos (from Bangladesh) were a genuine representation of his political activities in Bangladesh. Given the high levels of document fraud from Bangladesh, and on occasion in the Bangladesh PV case load in Australia, and given the aforementioned doubts the Tribunal had as to whether the photos were genuine, the Tribunal has decided to reject all the photographic evidence as false.
Next, after considering the abovementioned letter in support dated 19 July 2021, and regarding the applicant’s political activities in Australia, when asked what he does for the BNP in Australia the applicant said he was ‘not very active’ with the BNP, that he does not have much time, that he works two jobs to support his family in Australia, and his only day off is Sunday – and during which day he focusses on himself and his family.
Therefore, and notwithstanding the abovementioned reference letter of 19 July 2021, it did not appear the applicant had engaged in much if any claimed BNP activities since 2018. Further, the claimed 2018 political activities in Australia, were sought to be corroborated by photographic evidence the Tribunal has now rejected as false. In the circumstances, the Tribunal is not satisfied the applicant has engaged in the BNP activities in Australia, he had claimed above.
Next, near the end of the Tribunal hearing, and for the first time (as conceded by the applicant) he remembered that in 2018 he was recorded by a friend in Australia (who continues to support the Freedom Party), as criticising the current Awami League government in Bangladesh. When discussed, the applicant said this criticism was broadcast on a [social media] clip. However, the Tribunal was eventually able to ascertain that the applicant was not identified on the [social media] clip, and there was no evidence the friend (apparently an Australian resident) had any intention to identify the applicant.
Therefore, even if the applicant had been recorded criticising the Awami League government or leader in Bangladesh in 2018, the Tribunal is satisfied this would cause his identify to be known to the Bangladesh government. Further, and importantly given the Tribunal is not satisfied the applicant engaged in any political activity for the BNP or anyone else, for the last several years, the Tribunal is also not satisfied the applicant would have any further interest in engaging in politics should he return to Bangladesh.
Given the above findings, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Bangladesh, for reason of any of his political or other activities discussed above.
Since arriving in Australia [in] August 2015 – Australian characteristics:
Towards the end of the hearing, the [Age]-year-old applicant said inter alia that after ‘8 years in Australia’ he had developed characteristics that would not allow him to re-integrate should he return to Bangladesh. When asked to explain, he said Bangladesh is corrupt and though he ‘may have deceived people in business in the past’, he no longer behaved this way in Australia – though the Tribunal understood that not all successful business people in Bangladesh were corrupt – and also that the applicant had managed to be an apparently successfully businessman in Dhaka up till he was [Age]-years-old.
The applicant also said he would need to be involved in politics in Bangladesh should he return to Dhaka and commence a new business – though he conceded his son-in-law now works in business in Dhaka and his son-in-law was said to have no political connections. The applicant also said that should he commence a business in Bangladesh, he would need to again shout at his workers to ensure they worked hard for him – though the Tribunal understands that not all employers would need to shout at their employees to work hard for them. The applicant also said he had established himself in Australia, and by returning to his home in Dhaka in order to commence a new business he may be disadvantaged, given he would have to start the business from scratch – and the applicant works two jobs in Sydney in order to support his family. The Tribunal accepts this to be correct and also, that the applicant had not engaged in any political activities for some years.
When asked about his [age]-year-old old elder brother who he initially said worked in [a Product 1] business in Dhaka, he said the brother did not work, then when the Tribunal reminded him this appeared to contradict his earlier evidence, he said the elder brother assisted his son to run the business but the business was not profitable.
That being said, after looking at the country information, including in the sources cited herein, the Tribunal was not satisfied there was any evidence the harm the applicant claimed to fear was (words to the effect) for a Refugee Convention reason; nor that there was any evidence of (ie) an intention to harm the applicant personally. Also, the Tribunal was not satisfied the evidence of the applicant’s claimed newly acquired characteristics or preferences, gave rise to any chance he would be harmed in Bangladesh.
Therefore, the Tribunal is not satisfied the applicant has a real chance of suffering material harm in Bangladesh, for any reason discussed under the above sub-heading.
The applicants’ perceived wealth – including after lengthy Australian residence:
In an undated statement, the applicant said he feared his children may be kidnapped on return to Bangladesh, in order to extort money from him as he will be seen as a wealthy person who had returned from Australia. At the Department interview, the applicant was also recorded as claiming that as he and his family have resided in Australia for a long period of time (since [August] 2015) they would be perceived to be wealthy. Therefore, his political enemies and or criminal gangs may abduct, torture or kill him in order to extort money from him. He would not be assisted by the police as they are influenced by the Awami League government. He also claimed not to be able to relocate within Bangladesh.
At hearing, the applicant said he would be at even more risk on return to Bangladesh due to being perceived to be wealthy after a lengthy residence in Australia.
Regarding security in Bangladesh, and a lengthy stay in a western country, the country information stated:
2.33 The security situation in Bangladesh is volatile and can deteriorate quickly. Security threats include politically motivated violence, particularly ahead of elections; terrorist attacks committed by Islamist extremist groups; criminal violence; and sporadic clashes in the CHT between indigenous groups and Bengali settlers over land ownership and usage …
…..
5.66 Human rights organisations have expressed concern over persistent use of excessive force by police, and by the general culture of impunity surrounding police behaviour. … DFAT assesses that most Bangladeshis, and particularly those with connections to opposition parties, would seek to avoid engagement with the police.
And:
5.30 DFAT assesses that most returnees, including failed asylum seekers, are unlikely to face adverse attention regardless of whether they have returned voluntarily or involuntarily. [32]
[32] DFAT COUNTRY INFORMATION REPORT, BANGLADESH, 22 August 2019.
As noted, the applicant feared he would be considered wealthy should he return to Bangladesh:
· the delegate said the applicant claimed his children (then [Age] years and [Age] years) would be kidnapped for reasons of extortion if they were returned to Bangladesh (though one of his children – a daughter – has remained in Bangladesh without harm). This was due to him being perceived as belonging to a wealthy family having returned from a Western country
· further, the delegate noted DFAT evidence that persons returning to Bangladesh, either voluntarily or involuntarily, are unlikely to face adverse attention on the return. Thousands of Bangladeshis enter and leave the country every day. The delegate accepted that kidnapping of children in Bangladesh may occur however, it was infrequent and mainly targeted by individuals likely known to the victims. The delegate said the applicant had not provided any evidence to support the claim the police would not offer him protection should he require it in Bangladesh - particularly given the delegate was not satisfied the applicant was a political activist as he claimed, or even a wealthy individual. The delegate believed that any such harm would constitute a random act, and something faced by all citizens. The delegate did not accept the applicant or his family would be targeted for kidnapping/harm were they to return to Bangladesh
At hearing, the Tribunal put the applicant and his agent, that it had not seen evidence of wealthy persons being harmed for that reason, or any related reason, in Bangladesh (and that based on the country information considered, they do not constitute at least in Bangladesh ie, a particular social group). Therefore, the Tribunal was of the view there was no (again, words to the effect) Refugee Convention nexus. Next, the Tribunal said it may not accept the applicant would be intended to be harmed personally should he return to Bangladesh. If he was targeted for reason of his perceived wealth, this would be for reason of obtaining illegal profit, and not for reason of any intention to harm the applicant personally.
Perhaps more importantly, and though the Tribunal accepts the degree of criminality that exists in Bangladesh is greater than in Australia, the Tribunal said it had not seen any material evidence that persons who have lived and worked in a western country for a lengthy period would necessarily be considered wealthy and/or have a real chance of suffering serious or significant harm for that reason, on return to Bangladesh. The applicant did not agree. He also said he may be harmed at some time in the future, though the Tribunal sought to explain it need not guarantee against harm, only that it must be satisfied there was no real chance of material harm.
As also noted at hearing, the applicant’s son-in-law had been claimed to have often worked in [Country 5] for the 18 years prior to the COVID-19 pandemic, and there was no evidence he had been targeted for any harm in Bangladesh. The applicant said this was due to the son-in-law having no political profile (which is plausible given he apparently spent so much time outside Bangladesh). However, the son-in-law had allegedly married into a political family, and based on the applicant’s evidence, his work in [Country 5] would ensure he was perceived as wealthy. However, there was no evidence the son-in-law or his immediate family (which includes the applicant’s daughter and grandchildren) suffered any harm in Bangladesh.

Given the Tribunal has not seen evidence that satisfied it that persons who had worked overseas for lengthy periods, or the applicant in particular, would be targeted for that reason on return to Bangladesh, the Tribunal does not accept the applicant (or his family) has a real chance of being targeted/harmed in Bangladesh, for reason of being perceived to be wealthy.
Accordingly, the Tribunal is not satisfied the applicant (or his family) has a real chance of suffering serious or significant harm in Bangladesh, for any reason discussed above.
Furthermore, even when considering the accepted evidence cumulatively, the Tribunal is not satisfied the applicant, or the applicant family, have a real chance of suffering serious or significant harm in Bangladesh.
Failed asylum seeker:
The country information stated:
3.150 … Those intending to migrate (including to Australia) may obtain various loans in small amounts of money from different sources, including extended family and other members of the community. Amounts paid to middlemen can range from the equivalent of several thousand dollars to tens of thousands of dollars, depending on the intermediary used and the destination. If that person’s attempts to migrate and send sufficient remittances to cover the debt are unsuccessful and the person returns to Bangladesh without having sent back sufficient remittances (for example, a failed asylum seeker), aggressive attempts to recover the money may be made. However, DFAT understands that lenders are more likely to loan more money to fund a further attempt to migrate than they are to use violence to recover the debt.
…..
5.30 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. This is unlikely, however, for returnees without such a profile.[33]
[33] DFAT COUNTRY INFORMATION REPORT, BANGLADESH, 22 August 2019.
There is no evidence the applicant borrowed money to travel to Australia. When then discussed at hearing, the applicant restricted his evidence in response, to some of the claims the Tribunal has dealt with above. However, given the country information and the accepted evidence, the Tribunal is not now satisfied the applicant’s inter alia low profile political activities in Bangladesh, or his lack of political activities in Australia, would now give rise to him having a real chance of suffering serious or significant harm, should he return to Bangladesh as a failed asylum seeker.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
Mr S Norman
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 ed 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.
…

[2022] AATA 3732

16 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice