1702994 (Refugee)

1702994 (Refugee) [2020] AATA 3530 (20 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1702994
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Tania Flood
DATE:20 August 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 August 2020 at 4:11pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – membership and activity in student wing of political party – association with high-level politicians – attempted kidnapping – credibility – delays in departure after visa granted and in applying for protection visa – inconsistent evidence about political activity – activity in Australia after department’s refusal for purpose of strengthening claim – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2), 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 2 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Bangladesh applied for the visa on 19 September 2016. The delegate refused to grant the visa on the basis that there is not a real chance or a real risk the applicant will suffer serious or significant harm in Bangladesh for the reasons claimed.
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
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Bangladesh for reason of his race, religion, nationality, membership of a particular social group or political opinion, or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information contained in his application for a Protection visa the applicant is a [Age]-year-old, single Bangladeshi citizen from Sylhet Province. He declared himself to be a Muslim with an occupation of [Occupation]. His parents, [sisters] and brother live in Bangladesh. After completing his schooling, he undertook further study in Sylhet – a Bachelor of [Subject 1] from January 2009 to January 2013 followed by a Master of [Related subject] from February 2013 to June 2014.
The applicant claims to fear returning to Bangladesh for the following reasons:
He comes from a respected middle-class family and his father inherited a respectful status in his local community from [a relative] who was a personal friend of the founder of the Bangladesh Nationalist Party, BNP (Shahid Ziaur Rahman). His father held various positions inside the [BNP].
He joined the [University] Students Union Jatiyotabadee Chhatro Dal (BNP student wing) and became very popular in 2008.
He actively participated in the 2008 election by organising people and participating in meetings in support of the BNP candidate ([Mr A]) from [Town]. He also coordinated events and programs ranging from general strikes to protests, demonstrations and party gatherings.
Due to his political activities he became well known to Awami League (AL) members and became their target.
Between 2009 and April 2012 his political activities centred on the [University] where he studied.
On April 17, 2012 his local leader Ilias Ali was kidnapped by AL supported security forces. He became scared and diverted much of his attention towards his studies. He tried to leave his area and relocate to another part of Bangladesh. He thought he had the qualifications to get a job anywhere.
His dreams of finding a job where quashed [in] January 2016 when he was almost caught by the Sarbohara Terrorist Group (an underground supporter of the AL). When returning from [Town] after attending a BNP meeting [people] on motorbikes surrounded his [vehicle] and threatened to kill all the occupants. He avoided capture due to the good driving skills of the [driver] who was a BNP supporter. Later on, the [driver] was found dead.
After that incident he went into hiding. A relative who is an AL supporter told him that the Sarbohara Group had made him a target and were looking for him. His family became very worried and his mother sold all her jewellery to get money for his visa.
He left Bangladesh because he feared for his life and if he returns he will be killed by the Sarbohara Terrorist Group.
Since he came to Australia in 2015 the situation has become worse in Bangladesh. The AL government has killed active supporters of the BNP in the name of security and peace.
The Sarbohara Terrorist Group gets lists of prominent young and intellectual BNP workers from the AL with a view to killing those workers. He is one of the most wanted BNP persons in his local area.
In support of his claims the applicant provided a letter from [an official] of the BNP in [a] Division which attests his involvement in BNP student politics since 2008.
Statement provided to the Tribunal
In a statement dated 5 July 2020 the applicant takes issue with various observations and findings of the delegate.
As to the issue of bogus identity the delegate never found any incorrect information.
As to his membership of the BNP he truthfully outlined his involvement to the delegate and his evidence in support of his membership is not bogus. There is no evidence to reasonably conclude that the letter attesting to his membership of the BNP was fraudulently acquired.
The delegate failed to include all information about the present situation for BNP workers including Human Rights Watch and Amnesty International reports. The delegate discarded the correct information published in the media.
The delegates decision was biased.
Attached to the submission is a letter from [Mr B], [Office bearer 1], Bangladesh Nationalist Party (BNP) Australia. The letter states that the applicant arrived in [Australia] [in] October 2015 and from February 2020 has been working with the organisation as an activist. He notes that his organisation has been working under the umbrella of the mainstream community and one of its main objectives is to foster Bengali culture within the mainstream community for Bengali native speakers in Australia. [Mr B] states that to the best of his knowledge the applicant has suffered severe violence at the hands of the ruling party activists in Bangladesh and attests his belief that should he return his life could be in jeopardy like other members of the opposition party.
Also attached is a news article entitled ‘Bangladesh condemned as farcical’ published in the Australasian Muslim Times and excerpts from Human Rights Watch, World Report 2019: Bangladesh.
In a further submission dated 6 July 2020 the applicant provides witness statements and photographs of his participation in various cultural functions and political activities organised by supporters of the BNP in Australia. It is submitted that since his arrival in Australia in 2015 the applicant has taken part in protests against the AL government’s oppressive and autocratic policy towards the opposition.
Also attached to the submission are the following documents:
Statements from [Mr C] and [Mr D].
A translated copy of a news article published in the Syllhet View News: ‘Campaign meet has hold to support Abdul Muktadir in election 2018’.
Translated copy of a news article about a demonstration held in Australia calling for the release of Khandaker Abdul Muktadi in which the applicant participated.
A program held in Sydney [in] October 2018 in which the release of BNP chairperson Begum Khaleda was made by BNP supporters in which the applicant participated.
A demonstration held [to] demand the return of disappeared Illias Ali (Adviser of BNP chairperson) in which the applicant participated.
A list of members of the Bangladesh Nationalist Socio-cultural organisation (cultural wing of the BNP).
News and photographs of a meeting held [in] December 2018 in support of Khadakar Muktidir in which the applicant participated.
A copy of meetings of supporters of the BNP at different dates at [Suburb] and photographs in which the applicant participated.
It is submitted that based on this evidence the applicant is still engaged in the political activities of the BNP in Australia.
It is further submitted that the AL supporters in Australia always keep the government informed of the political activities of BNP supporters in Australia.
The applicant fears that if he is returned to Bangladesh he will be detained and kept in detention for an unlimited period of time and harassed and tortured.
Tribunal Hearing
The applicant appeared before the Tribunal on 7 August 2020 by video conference to present arguments in support of his case. The hearing was held during the COVID-19 pandemic and the Tribunal determined it was reasonable to hold the hearing by video conference having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conduced by video conference. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments. His testimony and responses to questions put to him by the Tribunal is summarised as follows:
He was born in Sylhet, Bangladesh and lived with his family in [Town] District. From 2007 to 2015 he lived in Sylhet town with his mother. He remained living in Sylhet town until his departure from Bangladesh.
He has [sisters]; [a number] live in [Town] and Sylhet with their husbands and one moved to [Country 1] in 2012. He has a brother who has lived in [Country 2] since 2009.
He completed his master’s degree in 2013. Thereafter he looked unsuccessfully for work and cared for his sick mother. In Australia he has obtained a [Certificate] in [Subject 2] and has worked as [an Occupation].
He left Bangladesh after his involvement with the BNP turned his life upside down. His involvement with Chhatra Dal, the student wing, brought him to the attention of the Awami League (AL) and one night in 2012 (not 2016 as noted in his written claims) he narrowly avoided an attack while travelling home from a BNP meeting in a [vehicle]. He later learned that the [driver] was kidnapped as it was reported in the press. He confirmed he does not have a copy of that news report.
After the attempted attack he returned home. He was scared and mostly stayed at home after that although he conceded he did continue to attend classes and political meetings. He said he avoided going out alone.
He did not suffer any serious harm prior to 2012. He did not experience another situation like the attempted attack in 2012 however the overall political environment worsened from 2008 onwards.
As to his involvement with the BNP he said he joined Chhatra Dal in 2007. He said he was involved in the recruitment of new members at his college and regularly attended political meetings. When asked how he approached the task of recruitment he said he would outline the good practices of the BNP and the bad practices of the AL. When asked what these are he said that the BNP believes in improvement and development of the country and has done a lot of welfare work for students whereas the AL is corrupt and power hungry.
When asked to outline the four main principles of the BNP the applicant provided two responses; faith in almighty and democracy.[1]
[1] The Bangladesh Nationalist Party website lists the main principles of the BNP as 1) Believe in Almighty Allah; 2) Nationalism; 3) Democracy and 4) Socialism (meaning to economics and social justice)
When asked if he could describe the Chhatra Dal flag he said he could not recall. When asked if he has maintained an interest in the affairs of Chhatra Dal since he left Bangladesh he said that he has not maintained much of a connection with politics in Bangladesh. He said that he has been busy working and its been quite a while since he left the country. When asked if he nevertheless knows who the current and/or former President of Chhatra Dal is, he responded he could not say.
When asked about his relationship with the local leader Ilias Ali he said he was [an official] of the BNP. He said he was personally introduced to Ilias Ali at a meeting and they spoke on a few occasions when they met at meetings.
The applicant stated that his father was [an Office bearer 3] for the BNP. He said he was not attacked by AL members. He said his brother was also a member of Chhatra Dal but he left Bangladesh in 2009 and is still living in [Country 2].
The Tribunal asked the applicant about his involvement with the BNP in Australia. He said that he became a member toward the end of 2015 and has tried to give some of his time to attending meetings. He said he doesn’t hold any position in the BNP Australia. Apart from attending meetings and organised events he once handed out leaflets in the Bangladeshi community urging people to tell their relatives at home to vote for the BNP.
The Tribunal put it to the applicant that there is no mention of any involvement with BNP Australia in the delegates decision and the evidence he has subsequently provided all post-dates the decision of the delegate. The applicant responded that he joined the BNP when he first came to Australia and has continued to participate in activities however he did not realise that he might need to provide evidence of this. When asked if evidence exists of his earlier involvement he said there is not but he requested the Tribunal take evidence from a witness who could testify to his earlier involvement (please see below).
The Tribunal put it to the applicant that independent country reporting does not support that the Bangladeshi authorities or the AL take an active interest in the activities of ordinary BNP supporters outside of Bangladesh. The applicant responded that his activities in Australia have been published in an online newspaper in Bangladesh. He referred to articles submitted in his submissions.
The Tribunal put it to the applicant that it has not seen information to support that members of the AL in Australia report back to the party in Bangladesh about the activities of BNP supporters in Australia. The Tribunal invited the applicant to produce evidence of this type of behaviour and he undertook to see what he could find. At the time of this decision no further information was provided.
The Tribunal put it to the applicant that the letter of support provided by the BNP in Bangladesh makes no mention of the problems he encountered with the AL. He responded that it is just a reference letter and it would not be common to explain such events in a reference letter. The Tribunal reminded the applicant about the delegates advice in respect of the prevalence of fraudulent documentation in Bangladesh.
The Tribunal put it to the applicant that he delayed his departure from Bangladesh by three months after being granted a visa to Australia and noting his evidence to the delegate that he needed to care for his mother suggested his sisters in Bangladesh ought to have been able to care for his mother in such circumstances. The applicant responded that his sisters are married and have to look after their own families. While they did go to visit his mother he was the person providing the majority of her care. He said that when her situation stabilised he was able to depart Bangladesh.
The Tribunal put it to the applicant that despite claiming to have gone into hiding after the attack it appears he was still moving around in the community, attending University classes and political meetings. The Tribunal put it to him that it appears his attackers could easily have located and harmed him if they were intent on doing so before he departed Bangladesh. He agreed that he took a risk by going outside his home and said just because he wasn’t attacked then doesn’t mean there is no possibility he would not be attacked in future.
When asked if he had any reason to believe that he was a specific target of the AL he said he heard he was being targeted from his political colleagues. The Tribunal put it to the applicant that his written claims indicate it was an AL relative who told him the Sarbohara Terrorist Group were looking for him. The applicant then said he heard he was targeted from both his relative and his political colleagues.

The Tribunal put it to the applicant that it was concerned about the long delay between his arrival in Australia and him making the application for a Protection visa. The applicant responded that he initially thought he would go back to Bangladesh if the situation improved. The Tribunal put it to him that it is widely reported that there was widespread political violence in Bangladesh in the lead up to and after the 2014 national election and that it is difficult to accept he thought the situation would get better in the foreseeable future. He responded that he thought the AL government would fall under the pressure of continuous protests.
When asked what he fears will happen if he returns home the applicant said that he might be kidnapped or killed or have false cases brought against him and arrested. The Tribunal discussed with the applicant country information which suggests that it is senior members of opposition political parties and active members who are more likely to encounter such problems. The applicant responded that even though he is not a high-profile member his activities are enough to make him a target of the AL. The Tribunal also discussed with the applicant DFAT’s assessment of the conditions for returnees to Bangladesh which suggests it would be unlikely he would be stopped or arrested or otherwise harmed if he returns home from Australia. The applicant stated that the reporting is general and said that if he was to return to his local area he will be detected because it is not the case that tens of thousands of people return there each day.
Before the hearing concluded the Tribunal heard evidence from the applicant’s witness, [Mr C]. [Mr C] informed the Tribunal that he has known the applicant since 2011 in Bangladesh through their close association with Ilias Ali. He said the applicant was leading the student wing and brought many students to meetings which he coordinated in connection with the disappearance of Ilias Ali. He said that after the applicant arrived in Australia they made contact again and from the end of 2015 he has been participating in BNP meetings here.
The Tribunal asked [Mr C] if the applicant holds any position in the BNP in Australia. He said he is an active member of the committee he convenes. He said the applicant became [an Office bearer 2] of this committee in March or April 2020. He explained it is a new committee which was only formed in March 2019.
The Tribunal asked [Mr C] what he knows about the problems encountered by the applicant in Bangladesh. He said he heard from someone that he was threatened and narrowly avoided being attacked. When asked if he knew anything about the thwarted attack he said he wasn’t entirely sure what happened and that he only heard something from colleagues. He confirmed he was involved in the same branch of the BNP as the applicant.
[Mr C] told the Tribunal that the applicant is a dedicated member of the BNP in Australia and is very close to Ilias Ali. He said for these reasons it is risky for him to return to Bangladesh.
The Tribunal put it to the applicant pursuant to s.424AA of the Act that [Mr C]’s evidence about his position in the BNP Australia, namely that he was elected as [an Officer bearer 2] of [a] Committee is inconsistent with his oral evidence that he has not held any position within the BNP Australia.
Also pursuant to s.424AA of the Act the Tribunal put it to the applicant that [Mr C]’s evidence is inconsistent in that his written statement indicates he has known him personally since 2015 whereas his oral evidence in that he has known him since 2011 in Bangladesh.
When invited to comment on or respond to the information the applicant enquired how much additional time he could request to respond to the information. In order to determine whether it would be reasonable to grant the applicant additional time to respond the Tribunal asked him if there was any reason why he could not respond immediately. Instead of answering the Tribunal’s question he proceeded to give his oral response. He did not present a clear request for additional time either at that stage or prior to the hearing being concluded.
In respect of the differing information as to how long he and [Mr C] have been acquainted he said that the advice in [Mr C]’s letter relates to the length of time they have known each other in Australia. As to his failure to mention his elected position of [Office bearer 2] he said it is only recently that he assumed the role and this is why he failed to mention it.
In closing the applicant asked the Tribunal to consider the fact that he is highly educated and unable to utilise his qualifications in Australia. He said if he could safely return to Bangladesh he would. He added that his mother passed away recently and he couldn’t return to attend her funeral.
FINDINGS AND REASONS
Country of reference
Based on the information before it the Tribunal accepts the applicant is a national of Bangladesh.
Claimed involvement with BNP in Bangladesh and past harm
Central to the applicant’s claims is that he was an active member of the BNP’s student wing, Chhatra Dal, from around 2008 until his departure from Bangladesh in 2015. He claims that this involvement raised his profile in the community and caused him to be targeted by the AL and/or its political allies.
The Tribunal is prepared to accept that the applicant may have had some involvement with Chhatra Dal in Bangladesh while a student, including recruiting new members, participating in meetings and rallies and campaigning during the 2008 election. However, for the following reasons the Tribunal does not accept this involvement resulted in the applicant being targeted by the AL or any of its political allies and caused him to fear for his safety in Bangladesh.
Firstly, the applicant demonstrated little knowledge of even the simplest of issues; the four main principles of the BNP. When asked to name these principles he correctly named the first two principles and then fell silent. Given his claimed dedication to the party the Tribunal found this concerning. More relevantly, he claims to have been an active member of Chhatra Dal in Bangladesh but he could not describe the organisation’s flag under which he claims to have participated in meetings and processions for seven years. Further, he was unable to name the current or former President of Chhatra Dal. In fact, the Tribunal formed the opinion that he demonstrated little ongoing interest in the affairs of Chhatra Dal since he left Bangladesh. The Tribunal found this surprising given his claimed length and level of involvement with the organisation. The Tribunal had regard to his testimony that he has not maintained much of a connection with politics in Bangladesh since his arrival in Australia and has instead focused on work, but nevertheless considers the applicant’s demonstrated knowledge calls into question his claimed level of political involvement in Bangladesh and subsequently his claim to have been targeted because of the political profile he developed.
Secondly, the Tribunal found inconsistencies in aspects of the applicant’s evidence. For instance, the applicant claims that the thwarted attack on the [vehicle] he was travelling in was a significant factor in his decision to flee Bangladesh. The Tribunal considers his recollection of the event might therefore have been more convincing than demonstrated. For instance, in his written claims the applicant states that he was returning from a BNP meeting in [Town] when the attempted attack occurred whereas he first informed the Tribunal he was travelling from the BNP office in Sylhet at the time. When this was discussed with him in the hearing he then said that he was going to Sylhet. The Tribunal has considered his response but the question which was put to him was where were you travelling from, not to, when the attempted attack occurred.
Also, the applicant’s written claims state that he was informed by a relative who is an AL supporter that he was a target of the Sarbohara Group (an ally of the AL) and this caused his family to be very worried about his safety and prompted their decision to send him to Australia. When asked during the hearing how he learned he had become a target in Bangladesh, the applicant responded that he was informed of this by his political colleagues. When the Tribunal pointed out that his oral evidence differs from his written claims he then said that he learned about it from both sources. The Tribunal was not persuaded by his response and formed the view he was altering his evidence to allay the concerns expressed.
In addition, the applicant claimed in his application for a Protection visa that he went into hiding after the thwarted attack which he informed the Tribunal occurred in 2012. On his own evidence this claim cannot be believed because he conceded he continued to attend University classes and political meetings after the attempted attack and up until he departed Bangladesh. In any event, as discussed with him during the hearing in such circumstances it appears his attackers could easily have located him and harmed him before he departed Bangladesh. The Tribunal acknowledges the applicant’s claim that he was careful not to leave the house alone however, his evidence is that the attempted attack in the [vehicle] occurred despite him travelling with two other persons. That the alleged attackers did not take any action against the applicant despite him moving around in the community calls into question his claim to have been a target of either AL supporters or its ally, the Sarbohara Terrorist Group.
Thirdly, as discussed with the applicant during the hearing the Tribunal finds it significant that despite claiming to fear for his safety in Bangladesh the applicant waited 3 months after being granted a visa to Australia to depart the country and then waited a further year after arrival to apply for a Protection visa. The Tribunal has considered his responses to these concerns, namely that he needed to wait for his mother’s health to stabilise before departing Bangladesh and his hope that the political environment back home would change and therefore allow him to return. As noted above the applicant’s evidence is that he had sisters living nearby in Bangladesh and even if they were married and had other duties to attend to the Tribunal nevertheless considers it reasonable to assume they could and would have offered to help in a situation where the applicant’s life was at risk. Additionally, the Tribunal does not accept that in the turbulent political environment which reportedly followed the 2014 national elections in Bangladesh the applicant maintained a belief that the situation would change so dramatically as to allow him to return home. The Tribunal considers his delayed departure from Bangladesh and the significant delay between his arrival in Australia and his application for a Protection visa also calls into questions the veracity of the claimed attack in Bangladesh.
The Tribunal has considered the letter produced from the BNP in Bangladesh and acknowledges that it supports the applicant’s claims to have been involved in the student wing in [Town] in 2008. However, as discussed with the applicant in the hearing the letter makes no mention of the problems he experienced in Bangladesh on account of his political involvement. The Tribunal has considered his response that such matters would not normally be discussed in a reference letter. However, the Tribunal continues to find it significant that a letter which was obtained by the applicant to assist him to make out his claims for protection makes no mention of the past harm he claims in Bangladesh. The Tribunal accepts the letter adds weight to the applicant’s claimed engagement with Chhatra Dal in Bangladesh but does not consider it assists his claim to have narrowly escaped an attack on his life by ruling party activists.
The Tribunal notes that the letter from [Mr B], BNP Australia, states that to the best of his knowledge the applicant suffered violence at the hands of ruling party activists. [Mr B] does not contend that he knew the applicant in Bangladesh and nor is it claimed that he did. Therefore, [Mr B]’s statement is in the Tribunal’s view nothing more than a repetition of information provided to him by the applicant. In the circumstances, the Tribunal does not find [Mr B]’s letter persuasive or proof that the applicant suffered any past harm in Bangladesh.
The applicant’s witness, [Mr C], claims to have known the applicant in Bangladesh and to be aware that he encountered problems at the hands of ruling party activists but for the reasons provided below the Tribunal is not persuaded that [Mr C] and the applicant were acquainted in Bangladesh. Regardless of this, [Mr C]’s testimony in respect of his knowledge of the claimed attack on the applicant was not persuasive. Despite claiming that he and the applicant worked in the same BNP branch in Bangladesh his evidence about what happened to the applicant was vague and unconvincing. If, as claimed, the applicant survived an attack on his life in which a [driver] was also reportedly kidnapped, the Tribunal considers it likely that members of his branch, including [Mr C], would have been aware of the details. In the circumstances the Tribunal considers [Mr C] would have known the details of the claimed attack on the applicant and his inability to shed any convincing light on the subject during the hearing also causes the Tribunal to doubt the veracity of his evidence and the applicant’s claims.
In support of his claims to have experienced harm in the past, the applicant also submitted orally that he did not return home for his mother’s funeral and that his continued presence in Australia has resulted in him accepting work which is unrelated to his academic qualifications. The Tribunal accepts the applicant remaining in Australia in such circumstances could lend some support for his claims to fear returning to Bangladesh. However, the Tribunal considers the concerns expressed above outweigh any weight which could be afforded to this submission.
For these reasons the Tribunal is not persuaded that the applicant was targeted and the subject of a thwarted attack by either AL supporters or their political ally or forced into hiding in Bangladesh on account of his engagement with Chhatra Dal. The Tribunal is not satisfied that these claimed events were the reason for his decision to depart Bangladesh for Australia.
Claimed involvement with the BNP in Australia
The applicant claims that he became involved with the BNP in Australia in 2015. As noted from the above, the Tribunal is concerned about the late production of evidence of the applicant’s involvement with the BNP in Australia. Whereas it could be the case that he was not asked about this during his interview with the delegate the Tribunal remains concerned that an educated person would not have considered or raised the significance of this activity in the course of a lengthy discussion about his claimed political activities and fears of persecution for this reason.
In any event, as discussed with the applicant during the hearing the Tribunal is concerned that the evidence all post-dates the unfavourable decision of the delegate. Indeed, the Tribunal notes the documentary evidence only relates to activities undertaken in 2018 and not before or after that. The applicant acknowledged the lack of evidence of his earlier involvement and indicated that this could be overcome by the Tribunal taking evidence from a witness. However, the applicant’s witness was in the Tribunal’s opinion, unhelpful. The Tribunal found it problematic that [Mr C]’s evidence as to the length of time he has known the applicant was inconsistent. The Tribunal considered but was not persuaded by the applicant’s explanation for this. The Tribunal finds it implausible that the witness found it necessary to only indicate in his written statement the period in which he has “known” the applicant in Australia. The Tribunal is not prepared to accept that the applicant and [Mr C] were acquainted in Bangladesh and this causes the Tribunal to doubt the veracity of [Mr C]’s evidence. The Tribunal remains concerned about the lack of evidence of the applicant’s claimed involvement with the BNP in Australia before the unfavourable decision of the delegate was made.
The Tribunal is also concerned about the inconsistent evidence provided by the applicant and [Mr C] in respect of the role he has played in the BNP Australia. The Tribunal notes the applicant’s response that he failed to mention his role of [Officer bearer 2] because he assumed the position only recently. If anything, the Tribunal considers the timing of his election to this role would have prompted him to put forward such relevant information. This further causes the Tribunal to doubt that [Mr C]’s evidence can be relied upon and also casts doubt on the truthfulness of the applicant’s claims. The Tribunal does not accept the applicant was elected [Office bearer 2] of [a] Committee of the BNP Australia in March or April 2020.
The Tribunal accepts, based on all the evidence provided, including the letters of support from members of the BNP in Australia, photographs of the applicant attending meetings and participating in events, including leafleting members of the Bangladesh community in [Australia], and published online news articles, that the applicant has attended a series of BNP meetings and events in Australia since 2018. However, in view of the circumstances, the Tribunal considers it likely he has joined in these activities for the purpose of strengthening his claims and securing a protection visa.
Is there a real chance the applicant will suffer serious harm if he returns to Bangladesh for reason of his political opinion?
While the Tribunal accepts the applicant supported the BNP and had some engagement with Chhatra Dal prior to him leaving Bangladesh in 2015 it does not accept that he suffered any serious harm for this reason before he came to Australia. In view of his apparent waning interest in the affairs of Chhatra Dal since his departure from Bangladesh and given he is no longer a student, the Tribunal considers that upon return home the applicant will not continue his past involvement with Chhatra Dal. The Tribunal is satisfied there is not a real chance he will suffer serious harm on return to Bangladesh for reason of his past or future involvement with Chhatra Dal.
The Tribunal accepts the applicant has had some engagement with the BNP in Australia as an ordinary supporter. The Tribunal has considered whether his attendance at some BNP events in Australia since 2018 means that he is at risk of harm if he returns to Bangladesh. The Tribunal acknowledges the applicant’s claim that he has been named in articles about BNP events in Australia which have appeared in an online publication in Sylhet. Based on the evidence provided by the applicant the Tribunal accepts this. However, the Tribunal is not persuaded he will be harmed on return to Bangladesh for this reason. Firstly, the articles appeared in an online publication in 2018 and merely note the applicant’s attendance, amongst a long list of others, at some internal BNP gatherings in Australia. He is not identified as an organiser or key figure in those articles and nor is it claimed he is. The Tribunal does not consider that a reader of these articles would perceive the applicant was a key person at these events. Given the Tribunal’s opinion that he had only a minor role in these events and given the passage of time since the articles were published, the Tribunal does not consider it likely he is a person of interest to the AL or any other political opponents in Bangladesh now for this reason.
The Tribunal has considered the applicant’s claim that AL members in Australia report back to the party in Bangladesh about the activities of BNP supporters in Australia. However, even if there is an AL presence in Australia the Tribunal does not accept, on the available evidence, that this means the applicant, with only a minor profile within the BNP in Australia, is under observation and that his activities are reported back to Bangladesh. For the reasons expressed above and below the Tribunal is also not persuaded that his past engagement with Chhatra Dal, his association with Ilias Ali or family background in Bangladesh raises his profile to a level that is likely to result in his actions in Australia being monitored and reported back to persons in Bangladesh. The Tribunal discussed with the applicant DFAT’s [2] advice that the authorities may take an interest in high profile individuals who have engaged in political activities outside of Bangladesh, however, it is not satisfied that the applicant is such a person.
[2] DFAT Country Information Report, Bangladesh, 22 August 2019

For these reasons the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm if he returns to Bangladesh on account of his political activity and profile in Australia.
The Tribunal is prepared to accept the applicant will continue to favour the BNP if he returns to Bangladesh. However, as was also discussed with him during the hearing, DFAT’s[3] advice is that under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges and travel bans and active members of opposition political parties and auxiliary organisations who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. Those who are members of opposition political parties and auxiliary organisations but who do not engage in political activities and demonstrations face a lower risk of arrest. The Tribunal acknowledges the applicant’s claim that the situation for BNP supporters and activists has worsened in Bangladesh since 2008 and in the time that he has been in Australia. The Tribunal also acknowledges the continuing reports of politically motivated violence in Bangladesh including those reports referenced by the applicant in his submissions. However, the Tribunal does not accept the applicant had or has a high profile within either Chhatra Dal or the BNP or that he will pursue membership of the BNP or a leadership position in the BNP if he returns home. As noted above, the Tribunal is not persuaded, on his evidence, that he maintains any strong interest in Bangladeshi politics and the Tribunal considers his attendance at BNP meetings and participation in protests in Australia since 2018 has likely been for migration purposes. The Tribunal is not satisfied on the information before it, that the applicant will engage in any outward political activity which is likely to attract adverse attention if he returns to Bangladesh now or in the reasonably foreseeable future. While the Tribunal accepts he may continue to favour the BNP over any other political party in Bangladesh it is not persuaded that he suffered any harm in the past for this reason or that he will come to harm in the future just for this reason.
[3] DFAT Country Information Report, Bangladesh, 22 August 2019
The Tribunal notes the applicant’s claimed past association with a prominent, disappeared BNP member, Ilias Ali. While the Tribunal cannot discount the possibility that the applicant might have personally been introduced to Mr Ali in Bangladesh and to have encountered him on a few other occasions in the course of his previous involvement with Chhatra Dal prior to 2015 there is no evidence before the Tribunal that this will elevate his political profile on return to Bangladesh or will result in any harm to him if he returns to Bangladesh particularly in view of the findings above. The Tribunal acknowledges that certain of the online news articles presented as evidence by the applicant [of a] a demonstration in Australia about the whereabouts of Ilias Ali. However, for the same reasons outlined above the Tribunal is not satisfied that this [will] mean the applicant is singled out and targeted for harm by his political opponents if he returns to Bangladesh.
The Tribunal notes the applicant’s claims that his father and brother were also involved with the BNP in Bangladesh. There is no evidence before the Tribunal to support that the applicant was harmed in the past for this reason and nor is it claimed that he will be harmed in the future for this reason particularly as his father is now deceased and his brother has lived outside of Bangladesh for many years.

100. For completion, the Tribunal notes the references made by the applicant to his academic qualifications and his difficulty in finding employment prior to his departure from Bangladesh. However, during the hearing the applicant conceded that if he had kept looking for employment before his departure from Bangladesh he would eventually have found a job. The Tribunal is satisfied there is not a real chance the applicant will suffer serious harm in Bangladesh on account of any inability to find employment.
101. For all the above reasons, the Tribunal is satisfied that there is not a real chance the applicant will suffer serious harm if he returns to Bangladesh for reason of his past or present political opinions or for any other reason. The Tribunal finds the applicant does not a have a well-founded fear of persecution in Bangladesh. Therefore, he does not satisfy the criterion for the visa at s.36(2)(a) of the Act.
102. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk that he will suffer significant harm. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
103. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
104. The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

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.
…

[2020] AATA 3530

20 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Jurisdiction

Remedies