1703288 (Refugee)

1703288 (Refugee) [2021] AATA 2003 (21 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1703288

COUNTRY OF REFERENCE: Bangladesh
MEMBER:Nathan Goetz
DATE:21 April 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 21 April 2021 at 4:19pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh National Party – political violence – fear of killing – fear of kidnapping – political activities in Australia – return visits to Bangladesh – re-issue of passports – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants identify as [the applicant’s name], [an age] year old male citizen of Bangladesh who was born in Bangladesh, his wife [named], [an age] year old female citizen of Bangladesh who was born in Bangladesh, and their two children [Child A and Child B], [both a] citizen of Bangladesh who was born in Bangladesh, [ages specified].
The applicants were offshore and on 4 March 2016 applied for visitor visas to come to Australia. The visitor visas were granted on 7 March 2016. They arrived in Australia [in] May 2016 and on 28 June 2016 they applied for protection visas.
[The applicant] previously travelled to Australia on a tourism visa and arrived in Australia [in] January 2013, departing [later in] January 2013.
On 23 January 2017 [the applicant] was interviewed by the delegate. On 25 January 2017 the delegate refused to grant the applicants protections visas.
On 24 February 2017 the applicant applied to the Tribunal to review the refusal decision.
On 25 March 2021 the applicant was invited to appear at a Tribunal hearing on 19 April 2021.
On 12 April 2021 the applicant’s migration agent wrote to the Tribunal and asked that the Tribunal hearing be postponed as the migration agent was appearing in the Federal Circuit Court the same day. The overlap meant that it would be difficult for the migration agent to appear in both matters. The Tribunal considered the request for a postponement but refused the request. In the Tribunal’s view, other arrangements could be made if the applicant wished to have his migration agent present at the Tribunal hearing. The Tribunal advised that the postponement request was refused on 13 April 2021.
On 19 April 2021 [the applicant] appeared at the Tribunal to give evidence and present arguments. The remaining applicants did not appear at the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Bengali languages.
The applicant was represented in the review application by registered [migration agent] and lawyer [named] who did not attend the Tribunal hearing. Present at the Tribunal hearing was [another agent].
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
Protection visa application forms and evidence given to the delegate
Each member of the family unit completed protection visa application forms. [The applicant’s] wife and two children were not making protection claims of their own. They were included in the protection visa as members of the same family unit. Accordingly, whether [the applicant’s wife], [Child A] and [Child B] meet the criteria for a protection visa depends solely on whether [the applicant] is a ‘refugee’ or a person who meets the requirements for ‘complementary protection.’
For the sake of ease, the Tribunal will refer to [the primary applicant] as ‘the applicant.’
According to the protection form, the applicant was born in [his home] village, [in Town 1], Kishoregonj district, Bangladesh. He claims not citizenship other than Bangladesh and claims no right to enter and reside in a third country. He provided a copy of his Bangladesh passport issued [in] 2011 expiring [in] 2016. At the delegate interview, he provided his updated Bangladesh passport issued [in] 2015 expiring [in] 2020.
The applicant provided a written statement with his protection visa application form. The applicant wrote that his father was killed by an unknown assailant in December 1972 and the applicant had heard about his father’s involvement in politics during the Bangladesh liberation war and the applicant was inspired to join politics because of this. All his family members are involved in the Bangladesh Nationalist Party (BNP). He referred to his older ‘brother’ as [Mr A] and [Mr B] being involved in a Jubodal and it was with their encouragement that the applicant joined Chhatradal in 1994. The Tribunal accepts that when the applicant referred to ‘brother’ he meant his political brother, as clarified at the delegate interview.
At the delegate interview, the applicant said that he liked the aims and objectives of the BNP, such as Ziaur Rahman’s 19 Point Plan, the BNP’s education policy, digging canals, solving homelessness, and promoting self-sufficiency. He told the delegate that the present economy in Bangladesh can be improved with educational developments and noted the mixture of government and private education. The economy will be better if everyone is educated.
The applicant noted that he had been supporting Chhatradal since 1991 and detailed the candidate he supported at the 1991 thana election. He detailed that he participated in the election including organising meetings and his activities were to attract young voters to the BNP. The applicant detailed that he was elected as a secretary of his union BNP in 1995.
The applicant detailed his election activities in the 1996 Bangladesh national election. He claimed that as a result of these activities, the Awami League attacked, and he was injured. He claimed that after the 1996 election results, people associated with the Awami League destroyed buses with fire and blamed the applicant. The applicant claimed he went into hiding with relatives. The case was withdrawn against the applicant when [amount] taka was paid. He told the delegate that this case was withdrawn in 1997.
The applicant wrote that he returned to his area in 1998 and tried to rebuild Chhadtradal. He was elected as president of the committee. He noted his activities in that role. He wrote that prior to this, in 1996 he was unable to run activities due to the Awami League being in power and they used to threaten him. He was told he would be ‘put in the crossfire.’ The applicant wrote that he became nervous and left the area, moving to Dhaka.
He detailed that he obtained qualifications in [specified year] to apply for a job overseas. He noted to the delegate that he was in Dhaka for his education at that time.
The applicant wrote that he returned to his local village and Awami League terrorists started giving him threats to kill him. They also demanded money. The family home in the local village was attacked in January 2001. The applicant also wrote that in 2001 a BNP [Town 1] committee was formed, and the applicant was elected as a member of this committee. The applicant wrote that he campaigned on behalf of the BNP candidate for the 2001 election and noted his involvement in the campaign. The applicant wrote that the Awami League became angry with him because of this. Amwai League party members attacked the applicant and he was injured. The applicant was also threatened to be killed by a [local official] who was an assistant general secretary of the Awami League.
The applicant noted that when the Bangladesh National Caretaker Government came to power in 2006 BNP members were arrested from his local village. The applicant’s mother requested that he go overseas to work due to the political turmoil. A BNP MP candidate asked the applicant to enrol in a [trade] course and with this person’s hep, the applicant was able to obtain a job in [Country 1]. The applicant claimed that he communicated with the BNP [Country 1] local leader and that he supported all their activities. He wrote that he kept communicating with his Union BNP committee and Upazila BNP committee. He even used to return to Bangladesh to see his wife [and children]. He worried about them in Bangladesh.
The applicant wrote that after the Awami League came to power in 2008 he used to go to Bangladesh ‘a few times.’ He noted the 2014 Upazilla election and the BNP candidate he supported, as well as how he supported the BNP candidate.
The applicant wrote that when he went to Bangladesh [in] July 2015 the Awami League leader and Upazila chairman asked the applicant to go to his office. The applicant did not want to go but this person threatened to use terrorists to bring him there. The applicant did not go. A demand was made of the applicant for [amount] taka and it was noted that because the applicant lived overseas, he had lots of money. The applicant did not have that money.
The applicant wrote that he was attacked [later in] July 2015 and he was seriously injured, with a municipality chairman destroying his home by fire. The applicant went with a BNP president to file a case but the police threatened to arrest him.
[Days later] a Jubo League leader filed a case against the applicant for business and bus vandalism, including setting fire to a bus. The applicant was threatened with kidnapping and being put in crossfire. The applicant was told that they knew that his wife [and children] live in Dhaka and threatened to kidnap them. The applicant consulted with a BNP leader in June and was advised to go to [Country 1] which he did [in] July 2015. It was there he came to know that a warrant had been issued in his name.
The applicant wrote that he went to [Country 1] and brought his family there for security reasons. During his time in [Country 1], he applied for an Australian visa. At the end of his visit to Australia he was preparing to return to [Country 1] and came to know that he no longer had a job in [Country 1] as his [Country 1] visa had been cancelled. He was told that the company business was not good and they did not need him as an employee. He was perplexed because he had no job and could not return to [Country 1] and could not return to Bangladesh.
In the protection visa application form, the applicant declared that he had not applied for protection in any country other than Australia. He confirmed this to the delegate. The applicant’s protection visa application form declares his travel in the last 30 years as follows:
·     [From] January 2007 to [January] 2016 he was in [Country 1] for work.
·     [April] 2013 to [April] 2013 he was in [Country 2] to look for a job.
·     [October] 2013 to [November] 2013 he was in [Country 3] for a visit.
·     [February] 2014 to [February] 2014 he was in [Country 4] for tourism.
·     [Later in] February 2014 he was in [Country 5] for sightseeing.
·     [October] 2014 to [November] 2014 he was in [Country 6] for sightseeing.
·     [In] November 2014 he was in [Country 7] for a visit.
·     [In] November 2014 he was in [Country 8] as a tourist.
·     [Later in] November 2014 he was in [Country 9] for a visit.
·     [In] January 2016 he was in [Country 10] for a visit.
The delegate noted to the applicant that he had travelled in and out of Bangladesh a number of times between 2007 and 2015 to which the applicant agreed. He confirmed that he experienced no trouble at the airport when he departed or returned to Bangladesh.
The stamps in the applicant’s Bangladesh passports show that the applicant entered Bangladesh on [dates in] June 2012, [February] 2013, [twice], [December] 2013, [April] 2014, [November] 2014, and [July] 2015.
The applicant provided the delegate two articles from ‘The Bangla Barta’ with English translation of the title only. Both articles were dated 1 September 2016. The articles were titled [details deleted]. The articles contained photographs of a number of people and the applicant identified his presence. The applicant also provided the delegate with an online post from a website he identified as The online post appeared to contain a photograph of the applicant with the following text:
[Details deleted.]
Review application and Tribunal hearing
After the applicant was invited to appear at the Tribunal hearing, on 13 April 2021 he provided five letters.
The first letter was identified as a ‘witness letter from [name]’ who wrote that all the information and particulars furnished in the letter were correct. The applicant is a BNP president of a union in 1998. In 2011 some Awami League terrorist attacked the applicant and his house, and he was threatened. The author has memory of these events.
The second letter was identified as a letter from the President of the BNP [in the applicant’s] Upazila who wrote that the applicant was a member of the organisation from 2001 to date. The author claimed that the applicant worked hard under difficult conditions and his political activity was very good. He follows the party’s rules and regulations.
The third letter was identified as a ‘declaration from neighbour’ who wrote that he had seen an Awami League member attack the applicant’s home [in] January 2017.
The fourth letter was identified as a ‘witness letter’ which detailed that the applicant was attacked by an Awami League member and other supporters [in] July 2015. The author was present there at the time and witnessed the violence. The author confirmed that the applicant was the BNP union President and that he had been attacked by Awami League local leaders.
On 16 April 2021 the Tribunal received an email from the applicant’s migration agent attaching a personal statement from the applicant. The personal statement reiterated the contents of the applicant’s first written statement, providing additional detail to some events. The statement detailed that the applicant could not return to Bangladesh because he might lose his life. His life and that of his family have always been in grave danger because of his political views and actions. He noted that he had held various roles in the BNP and he has been a target due to his position. He wrote that BNP leaders in local areas are targeted more than central leaders as there is not enough safety and security in village areas.
He wrote that relocating to a city area was not a safe option because of Awami League corruption. Whenever he returned to Bangladesh, he would stay for less than 5 days so that when word got out that he returned, he was able to leave before he was killed. He wrote that in 2020 an Awami League member [named] called the applicant on Facebook Messenger and asked when the applicant would return to Bangladesh as they are waiting for the applicant. This person and other Awami League members demanded gifts from abroad. The applicant claimed that he had provided a screenshot of this call as proof that he is being targeted even though he lives in Australia.
The applicant wrote that he still believes in the BNP and joined the Australian branch.
The email from the migration agent put forward a number of claimed facts, such as the applicant’s membership of the BNP, his claimed activities in Bangladesh, instances of physical harm, and other historical events, such as election dates. In the Tribunal’s view, an email from the migration agent raising this type of material was improper, as any claims made by the applicant should have been made in a statement written by the applicant. In the present case, it appears that the migration agent copied factual claims from the statement, so the purpose of the migration agent writing this email was unnecessary in any event. Submissions should be directed about what the available claims are as disclosed from the material, and where appropriate, the law and legal authority arising from the available claims.
At the Tribunal hearing, the applicant provided his updated Bangladesh passport issued [in] 2019 expiring [in] 2024. The applicant also provided a Membership Application Form for the BNP in Australia that was signed but undated.
The applicant was also asked to provide a copy of the cancellation notice of his [Country 1] visa by 4pm the day of the Tribunal hearing which he did, together with what was described in an email as a ‘A photo of [the applicant] during a BNP Australia meeting.’ The Tribunal indicated that any material that the applicant wanted the Tribunal to consider would need to be provided by 4pm that day.

At the Tribunal hearing, the Tribunal discussed his intention travelling to Australia on a visitor visa and why he did not return to [Country 1], why he did not claim protection when he was last in Australia, whether there was something in particular that made him lodge a protection visa application on 28 June 2016 and, based on that answer, whether he had any problems prior to 2014, why the Bangladesh Government would issue him with a new passport [in] 2019, why he would not be able to relocate to another area of Bangladesh to live, the number of ‘false cases’ the applicant had filed against him, whether his mother still lives in the same family home in Dhaka, why he joined the BNP in Australia and his involvement with that organisation, how many times the applicant was threatened with a false case if he did not pay money, and his reasons for not providing the BNP Australian Membership form to the Tribunal, which the Tribunal notes the applicant had provided to his migration agent who did not forward it to the Tribunal prior to the Tribunal hearing. The Tribunal also asked whether there was any reason why the applicant had not provided a copy of the Facebook messages he had claimed to have received. He said there was no reason.
Where relevant to the Tribunal’s findings, the applicant’s oral evidence is detailed below.
FINDINGS AND REASONS
The issue in this case is whether any of the applicants are owed protection obligations because they are a ‘refugee’ or a person who meets the requirements for ‘complementary protection.’ The Tribunal must also determine whether any of the applicants are members of the same family unit as a person who is a refugee or meets the requirements for complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference; identity and family composition
All four applicants claim citizenship of Bangladesh. There is no information to dispute that this is the case. Therefore, the country of reference for the protection visa application assessment in Bangladesh.
The Tribunal accepts the applicants’ identities and that they are all members of the same family unit.
[The applicant’s] political profile: What did he do in Bangladesh, and what has he done outside of Bangladesh in connection with his claimed political profile?
The Tribunal has read the applicant’s two written statements and has listened to the delegate interview. The Tribunal notes that the delegate was satisfied that the applicant ‘is a member of the BNP’ but did not accept that the applicant was targeted by the Awami League due to his political profile or involvement in BNP activities or that the applicant left Bangladesh because he had a genuine fear of being harmed there.
Having considered the contents of the statements, and listened to the delegate interview, the Tribunal is satisfied that the applicant has a demonstrated knowledge of the BNP, as well as political events that occurred in Bangladesh. The applicant’s statement is detailed when it comes to BNP and Awami League candidates at various elections. The applicant’s oral evidence to the delegate about why he supports the BNP and its policies was a fair response when asked to justify his beliefs.
The applicant’s knowledge of, and explanation of, BNP factual matters and events in the Bangladesh political system may be evidence of someone who has participated in those events as claimed by the applicant. Conversely, the knowledge of key events and particular individuals may be knowledge obtained through study of those events. Given the concerns that the Tribunal has about the applicant’s return to Bangladesh on multiple occasions, the fact that the applicant did not lodge a protection visa application when he last visited Australia, that the applicant did not seek asylum in countries where he was able to do so while he was present in them, the fact that the Bangladesh authorities have issued the applicant with at least three passports, the fact that the applicant was able to depart Bangladesh on a number of occasions without incident, and some of the inconsistencies that the applicant provided concerning certain factual matters, lead the Tribunal to conclude that the applicant was not a member of the BNP in Bangladesh, did not participate in any political activity in Bangladesh as claimed, and did not experience any harm in Bangladesh as claimed.
The Tribunal notes that the applicant provided a Bangladesh Nationalist Party Australia membership application form. This was undated. He said that he had been a member of that organisation for the past two years. He provided two articles where there is a photo of him among a group of other people. He provided a photograph (no date and no context provided) subsequent to the Tribunal hearing. The Tribunal accepts that the applicant has participated with the BNP in Australia, but given the other concerns that it has about the truth of the applicant’s claims, and noting that the applicant provided no letter from the BNP in Australia to confirm when he joined, and whether he was still a member of that organisation, the Tribunal can only be satisfied that the applicant attended two events organised by the BNP in Australia (and from the date of the publication of the articles, it appears that those events were held on the same day) in 2016. The Tribunal is satisfied that the applicant attended and joined the BNP in Australia to lend credibility to his claimed political profile, not because he is or was a genuine BNP supporter or member in Bangladesh. The applicant has not claimed that he faces a risk of harm in Bangladesh because of his claimed political activity in Australia and the Tribunal is not satisfied that anyone in Bangladesh is aware that he has attended an event connected with the BNP in Australia.
The Tribunal is satisfied that the applicant crafted a comprehensive narrative about his past experiences in Bangladesh in an attempt to achieve a positive migration outcome through the grant of a protection visa. The Tribunal comes to this conclusion for the following reasons.
[The applicant’s] return to Bangladesh and failure of the applicant to lodge a protection visa application in any country that provides asylum, including the last time he visited Australia
As made clear from the applicant’s Bangladesh passport, he has returned to Bangladesh on several occasions. The last time the applicant returned to Bangladesh was [in] July 2015. The Tribunal really struggles to accept that if the applicant’s claims as detailed in his first written statement that ‘the Awami League terrorist used to threaten me always (per his first written statement where he stated that he could not run party activities in 1996 because the Awami League was in power and he was told that he would put ‘put in crossfire’), that when the applicant returned to his village after studying in Dhaka he was receiving death threats with demands for money, that his village residence was attacked in 2001, that the Caretaker Government arrested BNP members from the applicant’s village when it came to power in 2006, that (per the migration agent’s email) in 1996 the applicant was targeted with a false case which resulted in the applicant paying some [amount] taka to have the case withdrawn, or that that he was applicant was captured and tortured when he returned to his village in 2001, or that (as per his second written statement) he was forced to ‘spend a year in hiding’ before returning to his area in 1998, that he was ‘captured and tortured by 5 to 6 people who were Awami League terrorists in 1998 which resulted in the applicant moving to Dhaka , or being captured, tortured and heavily injured by Awami League members following the applicant’s ‘heavy involvement’ in the 2001 election.
The applicant told the Tribunal that he did not claim protection the last time he was in Australia in January 2013 because he thought the situation would improve, and that at that time, his family did not face any problems, and his family were not threatened at that time. The applicant claimed that it was once there was a threat against his children that he decided that he needed protection. Noting that the applicant’s children were born in [specified years], the Tribunal really struggles to accept that no threats would be made against the applicant’s children prior to when he last visited Bangladesh [in] July 2015. If the applicant’s claims were to be believed, his family home where his mother lives had been attacked in 2001, and this demonstrated a willingness of the applicant’s claimed persecutors to target members of the applicant’s family. Further, the fact that the applicant claims that he relocated to Dhaka in 2000 prior to taking up educational opportunities due to threats as claimed in his first written statement, would suggest that the applicant was genuinely fearful of future harm if his reasons moving to Dhaka were to be believed.
The applicant was present in [Country 6] from [October] 2014 to [November] 2014, [Country 7] [in] November 2014, [Country 8] [later in] November 2014 and [Country 9] [later in] November 2014. All of those countries have ratified the 1951 Convention relating to the Status of Refugees and the 1967 Protocol.[1] To the Tribunal’s way of thinking, if the applicant’s claims about his political profile and past experiences of harm were true, the applicant would have sought asylum in any of those countries. He did not do so and claimed that he did not do so because at that stage, his children had received no threats. Given the claim that the applicant’s mother had her family home attacked, the Tribunal is satisfied that this would have demonstrated a willingness by the applicant’s claimed persecutors to target his family members, and accordingly, the applicant would have appreciated the risk that his family members faced as a result of his political profile. The fact that the applicant did not seek asylum in any of the above countries, and also did not lodge a protection visa application during his last travel to Australia in 2013, demonstrates that the applicant has no claimed political profile, and has not experienced any past harm in Bangladesh as he claimed.
[1] Microsoft Word - Status of treaties 1951 and 1967 for UNHCR website - April 2015
The Tribunal notes that the applicant provided letters to support his claimed membership of the BNP in Bangladesh and claimed witness accounts to corroborate some of the claimed instances of harm in Bangladesh. Given the other concerns that the Tribunal has concerning the credibility of the applicant’s claims, it comes to the conclusion that there is no truth to the letters which claim to have witnessed certain events in Bangladesh. In so far as the two letters provided which claim to come from the BNP in Bangladesh, the Tribunal is unsure whether those letters are genuinely from BNP leaders in Bangladesh who have fabricated the applicant’s claimed profile in Bangladesh, or whether the letters are fabricated as to their claimed authorship.
Willingness of the Bangladesh authorities to allow [the applicant] to depart Bangladesh and issuing him a new Bangladesh passport
At the Tribunal hearing, the Tribunal expressed curiosity that the Bangladesh authorities would have issued him a passport to travel to other countries. The Tribunal expressed this concern because of the 22 August 2019 Department of Foreign Affairs and Trade Report on Bangladesh detailed the exit and entry procedures as follows:
The Department of Immigration and Passports conducts immigration checks and maintains a list of convicted criminals and persons wanted by security forces and intelligence agencies. The department mostly uses the list to determine whether to issue passports but may also use it to prevent people from leaving the country. Authorities can refuse to issue passports to people who have been convicted of war crimes, moral turpitude or smuggling: where they are suspected of leaving the country to avoid criminal proceedings; where they are ‘likely to engage in activities outside Bangladesh prejudicial to the sovereignty, integrity or security of Bangladesh’; or where doing so would be the public interest. DFAT is aware of cases in which authorities have prevented both senior members of the BNP leadership and ordinary BNP members from leaving the country (at 5.24).
Given that the applicant was issued a passport to depart Bangladesh [in] 2011, [in] 2015 and [2019], the Tribunal really struggles to accept that the Bangladesh authorities would issue these passports if the applicant had been charged in the past with criminal conduct, or if there was a warrant out for his arrest [in] July 2015, as recently claimed by the applicant. In response to the Tribunal concern about the issuing of passports, the applicant responded that his problems were ‘party problems’ and were in ‘his local area.’ Given what the applicant said, the Tribunal asked whether he would be able to locate to another area to live safely, as the applicant seemed to be suggesting that his claims were localised. He said he could not, as he would be easily found.
The Tribunal really struggles with the logic that on one hand the applicant claims that his problems are localised to his home area, while at the same time suggesting that now where in Bangladesh is safe for him because he can be found easily. If the Tribunal were to accept that the applicant was of such an interest that the persecutors in his local area would find him anywhere in Bangladesh, then the Tribunal reasons that the applicant is therefore of such an interest that he would not be able to be issued a passport or depart Bangladesh. It is also incredulous to the Tribunal that the Bangladesh authorities, who the applicant claims are beholden to the Awami League, would issue him with a passport as recently as 2019 if his claims were true.
Inconsistent evidence about a factual matter that suggests that the applicant has fabricated his claims
The Tribunal next turns its mind to the oral evidence that the applicant gave about whether he had ever been arrested or had a case filed against him. The applicant told the Tribunal that he had had a warrant against him [in] July 2015. He discovered this while he was in [Country 1]. The Tribunal asked whether he had ever had a case filed against him previously. The applicant said he had not. He had been threatened with the filing of a case against him.
This evidence was inconsistent with what the applicant has claimed previously. Previously, the applicant claimed that a ‘false case had been put against me’ in 1996. The applicant had to pay [amount] taka to have that case withdrawn against him, which occurred in 1997 (per his first and second written statement). The Tribunal raised this inconsistency with him and the applicant said that he was initially told that if he did not give his persecutors money they would file a case against him. When he did pay them money, they withdrew the case. The applicant said that he must have misunderstood the Tribunal’s question.
The Tribunal asked when this occurred. The applicant said this was in 2001. When asked about the circumstances of being threatened with a case against him, the applicant said that in 2001 an Awami League chairman asked him to come to his office and said that if he did not pay [amount] a case would be filed against him.
This provided further confusion, because the applicant had never previously raised a threat in 2001 by an Awami League chairman to file a case against him if money was not paid. The only threat involving a case being put against the applicant unless he paid money was that which was said to have occurred [in] July 2015. The Tribunal asked why the applicant had never previously disclosed that a threat was made in 2001 for a case to be filed against him unless money was paid. As pointed out to the applicant, this appeared to be relevant. The applicant then said that his house was attacked in 2001 but there was no case against him. This appeared to be a change in the applicant’s oral evidence. The applicant then said that it was in 2014 that the threat and demand for money was made. The Tribunal’s view was the applicant sought to change his evidence when he realised that he had given inconsistent evidence about whether he had previously had a case filed against him, and that he provide inconsistent evidence about whether a threat had been made that a case would be filed against him if he did not pay money (telling the Tribunal it was in 2014, which was inconsistent with his written statement that it occurred [in] July 2015) because the applicant was getting confused about his narrative. In the Tribunal’s view, the confusion came from the fact that the applicant realised that he had been discovered telling an untruth, he panicked, and then got his dates concerning the claimed threat on [a day in] July 2015 mixed up. The Tribunal notes that this evidence was given in the context of the applicant being asked to explain why he had not previously said that there was a demand for money in 2001. The Tribunal is satisfied that the applicant realise that this raised a concern about his credibility, and that is why he sought to say that there was no demand in 2001, despite telling the Tribunal that there was previously such a demand.
Claimed threats received on Facebook messenger and article put forward to corroborate applicant’s claim that the police force conducted a search of the applicant’s home [in] January 2017
In the applicant’s second statement, he claimed that an Awami League member called the applicant on Facebook. The applicant claimed that he provided a screen shot of this call. No screen shot was provided. When the Tribunal wrote to the applicant and invited him to attend a Tribunal hearing, the invitation noted that any document should be provided 7 days prior to the Tribunal hearing. Given the applicant claimed that this call occurred in 2020 and that he had taken a screenshot of the call, it appeared that the applicant thought this information was valuable. Yet he did not provide this screenshot prior to the Tribunal hearing, or even after the Tribunal hearing. He was given an opportunity to provide documentation by 4pm the day of the Tribunal hearing and took this opportunity to provide the BNP Australia membership form, as well as an additional photograph. The Tribunal is satisfied that no documentation was provided about this claimed threat because no threat was made.
Turning to the online article concerning the raid on the applicant’s family home [in] January 2017, the Tribunal is not satisfied that it is a genuine report of a factual event. It is an online article that could have easily been posted by the applicant or someone else at the applicant’s request in an attempt to corroborate the applicant’s claims. Given the other concerns that the Tribunal has concerning the applicant’s credibility, it is not satisfied that the article is a genuine report of a factual event.
[Country 1] visa cancellation and the reason the applicant travelled to Australia with his family
The applicant’s written statements disclose that his [Country 1] visa was cancelled. The statements detail that the applicant was employed in [Country 1] and that his visa was cancelled because his ‘company informed him that they were performing poorly and did not require any employees during that time.’ He told the Tribunal that he was employed until the time he left [Country 1] to Australia. This evidence about his employment and reasons for cancellation as detailed in the written statement was different to the oral evidence given by the applicant to the Tribunal about the reasons for the visa cancellation.
The applicant said that his [Country 1] visa was cancelled because he did not comply with his visa conditions. He was required to employ two people and pay tax. He said he did not do these things because he did not have capacity to do this. He also told the Tribunal that he intended to enrol his children in school in [Country 1], but he was told his children would need to enrol in an ‘international school.’ He said that this was too expensive.

The Tribunal put to the applicant its concern that the applicant was aware that he was in breach of his [Country 1] visa conditions, and given what he had said about his inability to afford his children’s schooling in [Country 1], it may suggest that the applicant fabricated his protection claims. The Tribunal thought this because it may be that the applicant desired to live outside of Bangladesh, not due to his fear of harm in Bangladesh, and when he became aware that he was not complying with his visa conditions and coupled with his difficulty paying for his children’s education, he decided to travel to Australia (a country he had previously visited) and start his life and that of his family here. The applicant disputed that he had manufactured his protection claims and reiterated that he faced problems in Bangladesh but noted that Australia was a good country and that he liked Australia better than other countries.
CONCLUSION
When the Tribunal puts all its concerns together about the truthfulness of the applicant’s claims, noting his past migration history, inconsistent evidence about a key fact in his narrative, the ability of the applicant to depart Bangladesh and be issued a number of passports, his return to Bangladesh on a number of occasions, and inconsistent evidence about the reasons that his [Country 1] visa was cancelled, the Tribunal concludes that the applicant has manufactured his protection claims in order to achieve a positive migration outcome, namely permanent residency in Australia. The Tribunal does not accept that the applicant was involved with the BNP or any political activity in Bangladesh. The Tribunal does not accept that the applicant was involved in any political activity while he was in [Country 1]. The Tribunal does not accept that the applicant’s participation (limited as it was) with the BNP in Australia was done for any purpose other than lending credibility to his protection claims. The Tribunal does not accept that the applicant or any member of his family have been involved with the BNP in Bangladesh or that the applicant or any member of his family have been harmed or threatened with harm in connection with the applicant’s claimed political profile, or any other reason. The Tribunal is not satisfied that the applicant left Bangladesh on any occasion because he had experienced harm for any reason, or that he refuses to return to Bangladesh because he fears harm in the future.
The Tribunal rejects the applicant’s claims in their entirety. He has manufactured his claims in order to achieve a positive migration outcome.
[The applicant]
Refugee
For the reasons given above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in Bangladesh on account of his race, religion, nationality, membership of a particular social group or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the same reasons, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence, the applicant will suffer significant harm if removed from Australia to Bangladesh.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
[The applicant’s wife], [Child A], [Child B]
None of the above applicants claimed to satisfy the criteria under s.36(2)(a) or s.36(2)(aa).
For the reasons given above, the Tribunal is not satisfied that there is a real chance that those applicants will suffer serious harm in Bangladesh on account of his race, religion, nationality, membership of a particular social group or political opinion.
Therefore, the applicants are not people in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the above applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the same reasons, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence, the above applicants will suffer significant harm if removed from Australia to Bangladesh
Therefore, the above applicants are not a people in respect of whom Australia has protection obligations under s.36(2)(aa).
As such, the fate their applications depend on the outcome of the first named applicant’s application. It follows that the other applicants are not to a protection visa because they do not meet the criteria provided by s.36(2)(b) or s.36(2)(c).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Nathan Goetz
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 2003

21 April 2021

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Immigration

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