1703295 (Refugee)
[2023] AATA 409
•9 March 2023
1703295 (Refugee) [2023] AATA 409 (9 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: [Applicant 1]
[Applicant 2]
[Applicant 3]REPRESENTATIVE: Mr Abu Siddque
CASE NUMBER: 1703295
HOME AFFAIRS REFERENCE(S): [File number]
COUNTRY OF REFERENCE: Bangladesh
MEMBER:Deputy President J.L Redfern PSM
DATE:9 March 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Statement made on 09 March 2023 at 9:50am
CATCHWORDS
REFUGEE – Protection (Class XA) (Subclass 866) visa – Bangladesh – whether the applicant faces a real chance of serious harm on return to Bangladesh – owner of a Shisha and hookah bar restaurant – Bangladesh Nationalist Party (BNP) supporter – family members and supporters of BNP – contributed financially to BNP – businesses raided and applicant claims to have been beaten – involvement with BNP Australia – events in Bangladesh after the applicant left – imputed or actual political opinion based on profile as a supporter of the BNP – civil proceedings filed in the Supreme Court of Bangladesh against the Government of Bangladesh, various ministries, police and other authorities – ongoing criminal charges against partner and employees – claims corroborated by witnesses and documents – claims applicant will be targeted by the Awami League, the police and Rapid Action Battalion – applicant found to be a refugee – decision under review remitted with directions.
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36, 36(2)(a), 36(2)(b)(i), 36(2A), 36(2B), 5H(1)(a), 5J(1)(a), 5J(1)(b), 5J(1)(c), 5J(2)-5J(6), 65, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Chan Yee Kin and Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
FCS17 v Minister for Home Affairs (2020) 276 FCR 644
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) HCA 6
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719SECONDARY MATERIALS
Department of Foreign Affairs and Trade Country Information Report on Bangladesh, 22 August 2019
Department of Foreign Affairs and Trade Country Information Report on Bangladesh, 30 November 2022
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 – Consideration of Protection Visa applications, 24 June 2019Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 February 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant was born in [year] in [city 1], Dhaka. He claims to be a citizen of Bangladesh. This is not in dispute. The second named applicant is the first named applicant’s wife and the third named applicant is the child of the first and second named applicants. The applicants arrived in Australia on [date] 2015 as holders of visitor visas and applied for a protection visa on 10 December 2015.
The first named applicant claims to fear harm from the Awami League because he supports the Bangladesh National Party (BNP). The delegate refused to grant the visas on the basis that they did not accept that the first named applicant was targeted by the Awami League due to his political profile or involvement in BNP activities.
The applicants appeared before me on 16 December 2021. They were assisted by an interpreter in the Bengali and English languages and attended the hearing in-person. The applicants were represented in relation to the review, and the representative also attended the hearing in-person. The hearing was adjourned and further hearings were scheduled in February and June 2022 to obtain further evidence, including from third parties located overseas. Further enquiries were made in relation to documentation provided by the applicants at a final resumed hearing was listed on 15 February 2023. Written submissions were provided by the applicant’s representative on 21 February 2023.
For the reasons that follow, I am satisfied about the applicants’ claims for protection and the decision under review is remitted for reconsideration.
BACKGROUND
Protection visa application and decision under review
The first named applicant arrived in Australia with his wife and child in [date] 2015. He applied for a protection visa in December 2015. The second and third named applicants were included in the application as members of his family unit. They do not have separate claims.
In his application for protection, the first named applicant claimed that his family has long-standing ties with the BNP. He also claimed that he had been donating to the party since 2009 and he was a successful businessman who was extorted by the Awami League to use his restaurant. He claimed he was beaten by members of the Awami League and who wanted to take over his business. The first named applicant was also concerned that his child would become a ‘soft target’ for his enemies to take revenge against him.
Before coming to Australia, the first named applicant and his wife travelled overseas on numerous occasions, both separately and together. They travelled to the United Kingdom together for several months during 2014 and thereafter, the second named applicant travelled to the United States of America where she resided for several months during her pregnancy. Their child, the third named applicant, was born in the United States of America.
The first named applicant was interviewed by the delegate in September 2016. He provided information about his claims that were not included in the protection visa application. Relevantly, the first named applicant gave the delegate information about his extensive business interests in Bangladesh. He told the delegate that his restaurant had been raided in April 2015. He said that he was subsequently detained by police and that he was beaten and that his finger had been broken. The first named applicant was asked why he did not make a claim for protection when he and his wife visited the United Kingdom between late March and May 2014. He said that at that stage his business was profitable and things were going well.
The delegate refused the application and the reasons for the decision are set out in a decision record dated 14 February 2017. The delegate accepted that the first named applicant was a member of the BNP and that he had a low profile. The delegate did not accept the credibility of the first named applicant’s claims for two reasons.
First, the delegate relied on the DFAT report on country information relating to Bangladesh dated October 2014, which reported, according to the delegate, that supporters of all members of political parties in Bangladesh are not at risk of being arrested or living in fear of violence on a day-to-day basis due to their political affiliations. The delegate further noted that opposition leaders or members with high profiles face a low risk of being individually targeted for arrest and detention due to engagement in general political activities. The fact that the delegate had found the first named applicant was a member with a low political profile, was one of the reasons why the delegate did not accept the first named applicant’s claims.
Secondly, the delegate found that the first named applicant had ample opportunities to apply for protection in another country, presumably being the reference to the first named applicant’s residence in the UK between March and May 2015, but he had not made such an application and had returned to Bangladesh and continued to live in Bangladesh. This was said to raise credibility concerns over his claims. Interestingly, the explanation given by the first named applicant during the interview was not referred to in the reasons.
In summary, the delegate rejected the first named applicant’s claims and found it was not plausible that a person with a genuine fear would return to the place where they claimed to be at risk. His claim for protection as a refugee was rejected. Given the delegate did not accept the first named applicant’s claims about threats from the Awami League and the police, the delegate was not satisfied that there were substantial grounds for believing that, as a foreseeable consequence of the first named applicant being removed to Bangladesh, there was a real risk he will suffer significant harm.
Procedural background
The applicants sought review of this decision to the Tribunal. Merits review does not operate like an appeal, and it is my role to consider the matter afresh, based on all information before me, including information and evidence provided after the decision by the delegate to refuse the application up to the time of my decision. Consideration of the evidence before the delegate, whether a claim is made at the time of the application and at interview and the matters relied on by the delegate, including those matters that were accepted and those that were rejected, provide a useful starting point for merits review. This evidence and the claims made, are matters that must be considered by the Tribunal. However, the decision of the Tribunal is based on all evidence and submissions made at the time of the decision, including any new information or evidence that has emerged or is submitted after the decision of the delegate.
In this case, there was a delay in constituting the matter and by letter dated 25 November 2021, the applicants were invited to provide additional evidence and country information in relation to their claims. On 9 December 2021, the applicants, through their representative, provided additional submissions and evidence in support of their claims. This evidence included a statement from the first named applicant dated 9 December 2021, a statement from [individual 1], said to be the [position] of Sreepur Gazipur, Bangladesh Nationalist party (BNP), a letter from [individual 2], [position], BNP, Australia, a short statement from [individual 3], the first named applicant’s manager based in Bangladesh, a letter from Advocate, [individual 4], being the lawyer who has represented the first named applicant’s partner and employees in relation to criminal charges commenced in Bangladesh in 2019, a document headed Writ Petition number [number] of 2017 dated 9 December 2018, copies of photographs of the first named applicant’s attendance at a BNP program in Australia, screenshots of the first named applicant attending Zoom meetings organised by the BNP, medical prescriptions for the first named applicant, a letter from Mr Pierre-Louis Lamarque, psychologist, dated 30 September 2020 noting that the first named applicant suffered from depression and anxiety, a letter from Dr Deepani Peiris dated 1 December 2021 stating that the first named applicant had been diagnosed with stress, anxiety and depression, a referral dated 17 September 2020 to Mr Lamarque, copies of documents said to be company documents, being a Deed of Partnership between the first named applicant and a number of other parties in relation to a business called [business 1], a certificate of incorporation in relation to [business 2] dated 2 June 2009 together with extracts from Articles of Association for the company and photographs of the first named applicant’s restaurant called [business 1].
The applicants’ representative also provided submissions contending that the first named applicant was a businessman with a political profile associated with a BNP. The submission referred to country information relating to Bangladesh and included the 2019 and 2020 Annual Human Rights Reports for Bangladesh published in February 2020 and January 2021 respectively by Odhikar, various media reports about violence against members of the BNP and forced disappearances, extracts from the 2020 US Department of State Country Report on Human Rights Practices: Bangladesh.
The matter was listed for an in-person hearing on 16 December 2021 but unfortunately the matter could not proceed in person because of complications related to COVID restrictions. The applicants attended the Tribunal premises in-person together with their lawyer and the interpreter, but the hearing was otherwise conducted by MS Teams. This was not ideal. The first named applicant gave evidence about the documents provided and explained how they were relevant to his claims. The second named applicant gave detailed evidence in support of the claims made. This evidence was not the subject of any written statement. For the reasons outlined later in these reasons, this evidence corroborated the first named applicant’s claims and was credible. The third named applicant was present and the first and second named applicants were asked whether they wished to proceed because there was no one available to look after her outside the hearing room. After consulting with their lawyer, they said they wanted to proceed.
The hearing was adjourned to February 2022 to proceed in person and to take evidence from the first named applicant and a number of other witnesses. Prior to the hearing, the first named applicant provided a statement, documents said to corroborate his claims about his business and a report from psychologist, Ms Antoinette Rees, dated 4 February 2022 to the effect that she had been treating the first named applicant. He had related to her his concerns about returning to Bangladesh and that his anxiety had increased in advance of the hearing. He appeared to have had a panic attack with hyperventilation and he reported to her that he had fainted on the road. The first named applicant was also concerned about his daughter and, according to the first named applicant and as reported to Ms Rees, his daughter had become anxious and clingy, and fears being separated from her father. A number of the documents provided in advance of the hearing had previously been provided in the email dated 9 December 2021. The new information provided included the applicants’ submissions to the Department in June and September 2016 (which were not included in the department file provided to the Tribunal) and a short statement from the first named applicant dated 7 February 2022 with various company documents attached.
The first named applicant gave evidence about the extent of his business interests in Bangladesh. This evidence was confusing, and the first named applicant was obviously anxious. In discussion with the first named applicant’s representative, the hearing was adjourned to give applicant the opportunity to provide a more detailed statement about these matters in discussion with his lawyer. Relevantly, details of these matters were not included in the first named applicant’s statements and these matters were not explored in the interview before the delegate. As such, there was little evidence before me about matters which were said to explain why the first named applicant feared harm by the Awami League and authorities if he returns to Bangladesh. In addition, there were a number of matters that the first named applicant claims took place after he left Bangladesh. The matters relating to the first named applicant’s business interests in Bangladesh and were said to be critical to his claims for protection.
The first named applicant did not provide this statement as requested and after seeking a number of extensions, his lawyer ceased acting in April 2022. This delayed the resumed hearing.
On 6 April 2022, the first named applicant provided further evidence, being copies of photographs of the first named applicant attending the 50 year Independence Day commemorations, an updated letter from [individual 4] dated 9 March 2022 about the criminal proceedings, documents said to be English translations recording the seizure of evidence from [business 2] in January 2019, the English translation of a document said to be a ‘preliminary information statement’ dated 12 January 2019 relating to an incident at [business 2] on 13 January 2019, an English translation of a report from the [city 1] police station dated 12 January 2019 in relation to seizure of certain items, including Shisha, a hookah machine and a trade license, a statement dated 3 April 2022 from [individual 5], managing director for [business 2] (said to be the partner of the first named applicant), receipts from Australia Post for $325.75 and $253.74, being transfers from the first named applicant to [individual 3], medical reports in relation to the third named applicant relating to her anxiety and a further statement from the first named applicant dated 5 April 2022, outlining the circumstances relating to the commencement of proceedings by [business 2] in 2018 and the criminal charges that were claimed to have been lodged against the company, his partner and employees of [business 2].
The matter was scheduled for hearing on 16 June 2022 to take evidence from [individual 4] about the criminal proceedings in Bangladesh. The applicants were represented at this hearing by Mr Siddque of Abu Legal Pty Limited. Evidence was given by the first named applicant and [individual 4] about the criminal proceedings. Because the first named applicant contended that he may also be the subject of the criminal proceedings if he was to return, further evidence was sought from his partner, [individual 5], and his manager, [individual 3]. Both gave evidence on 30 June 2022. Submissions were also provided after the hearing.
It is claimed that the fact the first named applicant’s company, [business 2], commenced proceedings in the Supreme Court of Bangladesh seeking injunctive relief against the police and other officials resulted in him and [business 2] being further targeted by the authorities. It is claimed that after these proceedings were lodged, the first named applicant’s business partner and several employees working at the company were allegedly the subject of false charges. The veracity of the claims about the original proceedings is relevant because it is claimed that this motivated the subsequent criminal targeting of the business.
The Tribunal made its own enquiries in relation to this issue and obtained research about country information relevant to this matter. This information was provided to the applicant and discussed during a hearing which was scheduled on 15 February 2023. The first named applicant clarified a number of matters in relation to his claims and oral submissions were provided. Written submissions were also provided following this hearing.
The delay in the case was the result of claims which had not been previously particularised that were being advanced at the hearings in oral evidence, COVID restrictions that disrupted the hearing process, a change in representation and the need for the Tribunal to make enquiries in relation to matters that were relevant to the credibility of the first named applicant’s claims.
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 (Cth) (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 first named 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).
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
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,[1] made under s 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department – Procedures Advice Manual 3 ‘Refugee and Humanitarian – Complementary Protection Guidelines and has taken account of the ‘Refugee Law Guidelines’ and Procedures Advice Manual 3 Refugee and Humanitarian – Refugee Law Guidelines’. The Tribunal must also take into account any country information prepared the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[1] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84 - Consideration of Protection Visa applications, 24 June 2019.
The most recent report from DFAT is the Country Information Report for Bangladesh dated 30 November 2022. I have considered this report, together with other relevant country information referred to by the first named applicant. I have also referred to the previous DFAT report of August 2019. I have considered the Department guidelines to the extent that these are relevant to the consideration of the decision under review. Generally, these guidelines contain an analysis of the law, examples of how the law has been applied in various jurisdictions and guidelines to decision-makers on how the law is to be applied. The guidelines were of limited assistance in the circumstances of this case. My analysis of the country information and any relevant guidelines are set out later in these reasons.
THE FIRST NAMED APPLICANT’S CLAIMS
In summary, the first named applicant claims that he and his family, particularly his uncles, have been supporters and members of the BNP for many years. He was not a member, but he has contributed financially and made his restaurant available for BNP meetings. He was a successful businessman in Bangladesh and operated a number of restaurants, one of which was called [business 1] and the other being called the [business 2]. He also had a textile and shoe business which was inherited from his father and properties which provided rental income. He alleges that he started his business in 2008 through [business 2] which operated two restaurants, one in [city 1] and one in [city 2], Dhaka. Three partners invested in the business, being [individual 5], [individual 6] and [individual 7]. According to the first named applicant, [individual 6’s] brother and [individual 7] were Awami League supporters and at the time they first became investors, he did not know they would become ‘adversaries’. At this time, he also had two [business 1] restaurants and another café located at [city 3].
The [business 2] restaurant was used by his uncles to host meetings with BNP colleagues. He also was a regular donator to the political activities of the BNP. After the Awami League won the election and came to government in early 2009, he, and the BNP colleagues who came to the restaurant, started to face harassment and the two investors who were associated with the Awami League demanded that the BNP colleagues pay for the use of the restaurant. He was subsequently asked to pay a ransom to run the second [business 2] in [city 2] and eventually decided to close the business. The first [business 2] restaurant continued but members of the Awami League would come to the restaurant demanding food and money. The first named applicant continued to pay because when he did so they did not cause problems. The problems started in 2011 but as long as he paid the money, the businesses were able to continue operating. After opening his [business 1] restaurant, the restaurant was raided in April 2015, the first named applicant was wrongly accused of selling wine and he was assaulted by police. His finger was broken, for which he sought medical assistance. The harassment continued and he was concerned that the other partners wanted to take control of the business using their Awami League connections. He was very concerned that they would also harm his wife and child because they were threatened. After this assault the first named applicant and his wife were scared and decided to travel to Australia and apply for protection.
After the first named applicant left Australia, he and [individual 5] agreed to pay out the two partners but, according to the first named applicant, authorities continued harassment through the police continually raiding the [business 2] leading to his remaining partner, [individual 5], instructing a lawyer to file proceedings in the Supreme Court of Bangladesh. The first named applicant contends that this was filed on 9 December 2018, but it is apparent from the document subsequently provided that it was lodged before this date, although preliminary orders were made on 9 December 2018.
The first named applicant claims that he and his partner were successful in these proceedings, but this action resulted in false criminal charges being lodged against [business 2], his partner and [business 2] employees. The first named applicant claims that he was forced to close down these businesses because of the targeting by government authorities. He contends that this targeting is based on political motivations.
The first named applicant contends that if he returns to Bangladesh, he will also be falsely charged and possibly further harmed. He is particularly concerned about his wife and child being harmed through extortion and threats. These fears of harm are said to relate to his political affiliation with the BNP.
The first named applicant claims that he continues to support the BNP in Australia and has attended several commemorative BNP events.
The original claims made by the first named applicant in the protection application were to the effect that he was a successful businessman, with BNP connections, who was being harassed by the Awami League. The first named applicant claimed that he was concerned that his wife and child would be harmed. There was no detailed statement provided at this time, but the first named applicant was interviewed by the delegate. In the interview, the first named applicant referred to his businesses in general terms, recounted the claimed harassment which started in 2011, referred to another incident in 2013 and described in more detail the raid, beating and injuries he sustained in 2015 in response to questions from the delegate.
While it may appear that the first named applicant’s claims ‘evolved’ over the course of the various hearings, the claims made by the first named applicant at the time of his application for protection remained consistent themes in his evidence and subsequent submissions to the Tribunal. The claims made in his application were to the effect that he was a businessman who was being harassed by the Awami League in relation to his businesses and had concerns about his wife and particularly his child if he did not give in to these demands. Because of events that are claimed to have happened in Bangladesh after he left, which are also claimed to evidence what will or is likely to occur when he returns, this evidence necessarily emerged over time.
OUTLINE OF THE EVIDENCE
Key to the first named applicant’s claims is his alleged long-standing business interests in Bangladesh which he says have been the subject of Awami League harassment and targeting. The first named applicant was therefore asked to provide information to explain the nature of these interests and to corroborate these claims.
The first named applicant provided various company documents including a certificate of incorporation, share registers and memorandum and articles of association. These documents revealed that [business 2] was incorporated on 2 June 2009. The memorandum of association recorded that there were 10,000 shares in the company, held equally by the first named applicant. The incorporation documents were credible. It is also relevant to note that [business 2] is recorded on the public register.
The first named applicant also provided a register for [business 2] as at 20 September 2018 and 11 February 2019 which showed that [individual 7] ceased to be a director and shareholder on 7 October 2018. [Individual 6] is not recorded as a director or shareholder in this register. According to the register, the first named applicant and [individual 5] were the shareholders and directors of the company, and the first named applicant was recorded as the chairman. These documents were also credible.
Internet searches for [business 1] and [business 2] revealed that they both existed and were based in Dhaka. There is little information about whether [business 1] still operates but according to information about [business 2], it operated as a hookah lounge and had over 4000 followers on its Facebook page. However, Google searches and photographs of the premises suggest it no longer operates because the website records that the business is ‘permanently closed’. There is no recent information on the Internet about the operation of [business 2] and the most recent information showing the business as operating is several years old. Without being able to obtain updated local information about these restaurants, the evidence provided by the first named applicant that these businesses no longer operate appears to be consistent with publicly available information.
The first named applicant’s wife, the second named applicant, gave evidence in the proceedings. She said that she first met the first named applicant in 2010 and they married in 2012. She did not work in the first named applicant’s businesses. They travelled together overseas on holidays in 2013 (to Thailand) and in 2014, when they travelled to the UK. She continued her travels to the United States, because she has a brother and sister residing there. She was pregnant at this time and decided not to travel back to Bangladesh. Their child was born in August 2014 in the United States. She travelled back to Bangladesh after the birth of their child. While she was in the United States, the first named applicant remained in Bangladesh working.
She said that when she returned to Bangladesh, she became aware of the problems for the first named applicant and for the businesses with the Awami League. She said that the first named applicant did not tell her about this earlier because he did not want to cause her concern. She gave evidence about what happened in April 2015. She recalls this well and knew when it happened because this was around the time of her husband’s birthday, and they had been planning to go on a holiday. She said that her husband came home, and he had been beaten. She could tell from the injuries on his face. He also had broken fingers. The second named applicant said that she had never seen the first named applicant in such a state, and he was very scared. She said that they went to her father’s place for three days to go into hiding. The first named applicant got treatment and his hand was in a plaster. She stayed at her parents’ place. They decided to travel to Australia on a tourist visa and try and make an application for protection. During this time she received telephone calls making threatening comments about her and their daughter. She believed that her mobile telephone number had been leaked to others. They did not report this to the police even though they did discuss it because she believed it was political and there would be no action taken. She said that she tried to keep a low profile and changed her mobile telephone number on many occasions or did not answer the phone if it was an unknown number before they left to come to Australia.
The first named applicant provided a statement dated 9 December 2021 and supplementary statements dated 7 February 2022 and 5 April 2022 outlining these claims. He included significant details about his business interests and allegations that he made in relation to the silent partners and the extent of the harassment by police and the Rapid Action Battalion (RAB) and Awami League, which he claims escalated in April 2015. This detail was not provided to the delegate at interview, but this does not, on its face, raise concerns because, having listened to the interview, it is apparent that the delegate was focused on particular instances of harm rather than a lengthy narrative about what happened over the years and what eventually led to the first named applicant deciding that he could no longer remain in Bangladesh. It is also relevant to note that the first named applicant provided details about events said to have taken place after he left Bangladesh in 2015. This evidence is relevant to the risk of harm that the first named applicant may face if he returned to Bangladesh. This evidence was explored at subsequent hearings and included evidence from witnesses said to corroborate these claims.
In his statement of April 2022, the first named applicant detailed the circumstances giving rise to the commencement of civil injunctive proceedings in the Supreme Court of Bangladesh in relation to the [business 2] business. According to the first named applicant, he discussed the importance of commencing these proceedings with his partner in November 2018. Given that the proceedings were commenced in 2017 and that, according to documents provided by the first named applicant, initial orders were obtained on 5 June 2017, it is apparent that the first named applicant is mistaken in relation to the dates. Given that the first named applicant provided these documents prior to this statement, I accept that the first named applicant is in error about timing, which is not surprising given the time that has elapsed. It is also relevant to note that when the proceedings were commenced, the first named applicant was in Australia and the proceedings were being managed by his partner, [individual 5]. It is possible that the first named applicant’s recollection of when the proceedings were commenced was wrongly influenced by one of the documents provided by him which refers to orders obtained on 9 December 2018.
The first named applicant gave evidence about the circumstances leading to the raid of his restaurant, his escape and subsequent detention and the beating and injuries that he claims he sustained. He said that while he had been prepared to manage the harassment and the need to pay police and Awami League leaders was the ‘price to pay’ for operating his businesses, this was a turning point for him, and he was very scared by what had happened. He was particularly concerned that his daughter would be kidnapped for ransom and did not want to take that chance. This is the reason why he decided to leave Bangladesh. The first named applicant gave evidence about the injunctive proceedings commenced in 2017 but he was clearly less familiar with the detail of these proceedings because his partner had instructed lawyers in relation to this issue. The first named applicant also gave evidence about the subsequent criminal proceedings commenced against the company, his partner and employees and said that he was concerned this would happen to him and that he would be targeted on his return. The first named applicant said he believed that he would be taken from the airport, and disappear and never be seen again. One of the main concerns raised by the first named applicant in a number of the hearings, was that his daughter would be kidnapped for ransom.
According to the first named applicant, after the proceedings were commenced and the order was obtained, police raided the [business 2] premises, threatened his staff and subsequently lodged a case against the company and [individual 3] and four staff alleging that the business was illegally selling Shisha.[2] The first named applicant attached a copy of the writ of petition and the court order, a letter from a lawyer relating to the criminal charges [individual 4] and a preliminary information statement dated 12 January 2019 relating to the raid, together with police documents recording the items seized during the raid.
[2] Shisha is a molasses-based tobacco product heated in a ‘hookah’. A hookah is also known as a water pipe in which Shisha is smoked.
The first named applicant’s evidence was broadly consistent and credible, although he was sometimes confusing and on occasion failed to answer questions directly because of his anxiety and eagerness to explain the seriousness and extent of his concerns. This prolonged the hearings and raised concerns about the need for claims to be corroborated with evidence. Ultimately, I have accepted the first named applicant’s claims about his business and the various interventions that he has faced by authorities which have resulted in civil proceedings and criminal charges. This is because his evidence has been supported by documentary evidence and the evidence of other witnesses.
The first named applicant provided the following documents which he says corroborates his claims:
a)Writ Petition number [number] of 2017 dated 5 June 2017, together with other associated documents relating to the proceedings;
b)Charge sheets, translated into English, dated 13 January 2019 relating to [individual 5] and four employees; and
c)Preliminary information statement, translated into English by NAATI-accredited translators.
The Writ Petition appears to have been lodged in the Supreme Court of Bangladesh by [business 2], as represented by its managing director [individual 5], being an action against the Government of Bangladesh, various ministries, police and other authorities. The writ is dated 5 June 2017. Attached to the Writ are numerous documents, being 63 pages in number, including incorporation documents and other documents which include evidence and reference to authorities. The documents lodged in the proceedings are in English. There is a second document dated 9 December 2018 which refers to an injunction ‘granted earlier by the court’ being extended for a further period of six months.
Country information contained in the DFAT country report for Bangladesh dated 22 August 2019 is to the effect that fraudulent court documents are relatively common in Bangladesh and corruption is widespread in the courts and the police. It is noted that it is possible that genuine documents may be fraudulently obtained as a part of this process. It is also noted that the court and police systems are bureaucratic and often paper-based, which can limit the ability to detect fraudulent documents. This was also the conclusion drawn by the UK Home Office when it undertook a fact-finding mission to Bangladesh in May 2017.[3]
[3] UK Home Office: Country Information Note Bangladesh: Documentation, UK Home Office 17 March 2020.
Having regard to this country information and the importance of these proceedings to the first named applicant’s claims and the potential for him to be persecuted on his return, the Tribunal sought information about these proceedings from public sources.
As a result of those investigations, the following information could be ascertained:
a)Following a case search by number on the website of the Supreme Court of Bangladesh for writ petition [number]/2017, it is apparent that this is a proceeding that was lodged with the Supreme Court. The petitioner is named as [business 2] and the respondent is named as Government of the People’s Republic of Bangladesh represented by its Secretary Minister of Home Affairs and eight others;
b)According to the case history notes recorded, there are four case court listings. The first is on 5 June 2017, with 414 other matters. The matter is listed under the heading ‘motion’ with the results recorded as ‘rule and stay’. The second listing is on 4 December 2017 with 415 matters. It is noted that the matter was to be mentioned and there is no entry under the result. The third listing is on 9 December 2018 where it is listed with 289 matters as a mention, again with no entry under the result. The final listing is on 20 May 2019 with 435 matters where the proceedings were to be mentioned with no result recorded; and
c)A further search was undertaken of the Supreme Court of Bangladesh website for listings of its judgement and orders, including in relation to writs, but there was no outcome recorded in respect of writ [number]/2017.
It therefore appears that the first named applicant’s claims that proceedings were commenced by [business 2] against the Government can be substantiated. It is apparent that these proceedings were commenced in 2017 and while it appears that some orders were obtained, there is no record of final orders being obtained. The first named applicant was questioned about this at the hearing in February 2023. He said that he thought the proceedings were successful because he did not understand the process and the legal issues, he accepts that there may not have been final orders obtained. The first named applicant was nonetheless of the view that these proceedings had angered officials and that [business 2] was subsequently raided, leading to what he alleges were false charges lodged against the company, his partner and four employees. The first named applicant had also raised concerns about the involvement of the previous partners, who were claimed to be associated with the Awami League.
The court documents and police records in relation to the criminal charges could not be similarly verified but evidence about these matters were corroborated in evidence given by [individual 5] and [individual 4], advocate.
Prior to the hearing, [individual 4] provided a short statement dated 9 March 2022. He stated that the criminal proceedings involving [individual 5] and the four employees was pending and the next date listed for the hearings on 16 June 2022. [Individual 4] gave evidence by telephone. He said that he was a member of the Dhaka Bar, he gave his membership number and confirmed that he was acting in the criminal proceedings. He stated that the criminal arose out of the previous civil proceedings in 2017. [individual 5] and four employees were being accused of being a possession of drugs at the [business 2] premises in January 2019. He stated that the defendants in the proceedings denied the charges, asserted that the charges were false as a result of harassment by the police and that they planted the drugs. He said the trial was ongoing and noted that while the matter had been listed for mention on this day, a trial date had not yet been set and the proceedings would take a long time to resolve. He was aware of the previous civil proceedings but had not been involved. He had been retained to act on the criminal proceedings. When asked whether the first named applicant would be implicated in the case if he returned to Bangladesh, [individual 4] said that because he was not in Bangladesh at the time, he does not believe this would be the case.
[Individual 5] provided a statement and gave evidence by telephone. He said when the police raided [business 2], they came looking for the first named applicant as the chairman of the company. [Individual 5] stated that he believed that if the first named applicant returned, he would be targeted by authorities. He described the harassment of the various businesses that he and the first named applicant operated from about 2009. He said that [business 2] was now closed because of the harassment. [Individual 5] said that the police and the Rapid Action Battalion came to [business 2] and would often look for the first named applicant even after he left Bangladesh. He was not involved with the BNP but he was charged. He said because of the harassment the restaurant had been facing, it was decided that [business 2] would commence proceedings against the Bangladesh government. [Individual 5] said that [business 2] had a judgement in its favour and, while the police stopped coming to the premises for a while, the restaurant was raided in 2019. It was alleged that the business was illegally selling Shisha, but this is not the case because [business 2] was legally authorised to sell Shisha under a certain limit. He believes that he and the employees were falsely charged, and they proposed to fight the charges. [Individual 5] said that the authorities were asking for the first named applicant, and he believed they would target him on his return because of his involvement in the earlier proceedings as Chairman and his involvement in supporting the BNP.
[Individual 5] has been a long-term business partner of the first named applicant. He was asked whether he was giving favourable evidence to support the first named applicant’s claims. [Individual 5] denied this. He said that he was giving evidence about things that had happened. While it is difficult to assess the credibility of evidence when a witness is giving evidence over the telephone, without evidence to the contrary I accept his evidence that authorities asked the whereabouts of the first named applicant when they raided the restaurant in 2019. It is plausible that this happened, even though the first named applicant had left Bangladesh some four years earlier. Firstly, the injunctive proceedings had been commenced in 2017 and, secondly, it is claimed that there was some connection between the Awami League, which was and is the ruling party, and the first named applicant’s former partners, who had been involved in the [business 2] business until about 2018. I also accept that [Individual 5] believes that the first named applicant will be targeted if he returns to Bangladesh, however, I note that [individual 5] statement of opinion ultimately carries little weight. It is the objective evidence that I must consider in making a finding of fact in relation to this issue. My consideration of this matter is set out below.
[Individual 3] gave evidence by telephone. He said that he had worked with the first named applicant since about 2015 when he was recruited as his manager. He said that he assisted the first named applicant by doing things as instructed, including donating money to the BNP on behalf of the first named applicant on numerous occasions. [Individual 3’s] evidence was both vague and confusing. His evidence was of little assistance to advance the first named applicant’s claims, although I accept that he assisted the first named applicant from time to time in donating money to the BNP.
When the first named applicant was asked why he would be targeted by the Awami League, the police and the Rapid Action Battalion after all these years, the first named applicant said he would be targeted because of his businesses and his association and connections with the BNP. He was concerned because of his daughter, and this is why he left Bangladesh. When it was raised with the first named applicant that criminal charges may have been the result of the government crackdown on Shisha bars, the first named applicant disagreed. He said that he believes these charges were targeted against him and he was very concerned about his wife and daughter being targeted. He believes that the charges were indirectly targeted at him. He also said that while one of his uncles had passed away last year, his other uncle was in hiding. The first named applicant said that he had a current passport which was issued by the Bangladesh High Commission in Canberra. Despite this, he believed that he would be targeted and arrested at the airport.
Further evidence included short written statement from [individual 1] who is the [position] of Sreepur Gazipur, BNP stating that the first named applicant had been donating to the BNP for a number of years and that he was concerned that the Bangladesh government would target the first named applicant on his return. The first named applicant also provided a statement from [individual 2] who is the [position] of the Australian branch of the BNP. [Individual 5] gave evidence at the hearing. He said that the first named applicant was an active member of the BNP and attended numerous meetings and programs held by the BNP in Australia. He said that he was also involved in a protest when the Prime Minister of Bangladesh visited Australia. He believes that supporters of the Awami League would know about this because the protests would have been reported in the newspapers and the first named applicant was likely to have been photographed.
FINDINGS OF FACT
Having regard to the evidence outlined above, I accept the credibility of a number of the first named applicant’s claims. I accept that he fears harm if he returns to Bangladesh and I accept that the reason why he left Bangladesh was not only because of concerns about his own safety but because of fears about the safety of his wife and daughter. I accept that the first named applicant believes his daughter may be harmed and is a kidnapping risk. I accept that the first named applicant was previously targeted, and these claims are corroborated by the proceedings that were commenced by [business 2], which can be substantiated by publicly available documents.
I also accept that the first named applicant’s evidence is credible. His evidence has been consistent over an extended period, namely in his interview with the delegate, as outlined in his statement of December 2021 and in his evidence before me. His evidence is also corroborated by the evidence given by his wife, his partner and the evidence of [individual 4], the advocate. I am satisfied that the first named applicant has significant business interests in Bangladesh, and it is difficult to understand the motivation for him to leave, other than his fear. He works as an Uber driver and while he is presumably earning an income, it seems unlikely that this income would be as financially rewarding as the income that would be generated from the profits from his business. The first named applicant’s evidence is that he has been driven out of business by harassment which he attributes to his political connections and the actions that he has previously taken. The evidence of [individual 5] is that [business 2] closed down in 2019. This evidence appears to be corroborated by inquiries made through the Internet about the operation of the various businesses operated by the first named applicant in Bangladesh.
I accept that the first named applicant has been a long-standing member and supporter of the BNP and that his uncles were also supporters. I accept that he promoted the interests of the BNP when he was in business through his restaurant and that this caused him increasing difficulties, leading to the raid in 2015. I accept that the first named applicant was beaten and that he sustained injuries in 2015, that he told his wife about this and that this scared them both to such an extent that they made plans to leave Bangladesh later in the year. I accept the evidence of the second name applicant that she received threatening telephone calls after this incident and that she, the first named applicant and their child lived with her parents for an extended period. I accept that there was ongoing harassment by authorities, and possibly the RAB, leading to the first named applicant to instruct his business partner to commence proceedings against the government of Bangladesh on behalf of [business 2]. I am satisfied that these proceedings were commenced, and interim orders made, although I am not satisfied that final orders were entered or that there was a verdict against the government and other government instrumentalities.
I accept that it is possible that the [business 2] business, the first named applicant’s business partner and the staff were targeted by authorities and that charges were laid because of these earlier proceedings, making it very difficult for the business to continue. I accept the evidence of [individual 5] that the business closed in 2019. It is possible that the targeting of the business related to a broader concern by the government about hookah bars and that the negative impact on the business related to these matters, rather than harassment and targeting by authorities. However, I cannot discount the possibility that there is a causal connection between the criminal charges and the first named applicant’s claims.
The critical question is whether I am satisfied that the past incidents and the first named applicant’s activities while he was in Bangladesh and since leaving, expose him to a real chance of persecution on his return.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the first named applicants meet the criterion for a protection visa. The second and third named applicants have not made independent claims for protection and rely on the claims made by the first named applicant as members of his family unit. As such, the critical issue for determination is whether the first named applicant meets the criterion for a protection visa, either as a refugee under s 36(2)(a) or under the complementary protection grounds set out in s 36(2)(aa). As already noted, if the first named applicant meets the criterion as a refugee, it is unnecessary for me to consider protection obligations under the complementary protection criterion.
I accept many of the matters claimed by the first named applicant, including that the first named applicant has a fear that he and his family will face serious harm if they are forced to return to Bangladesh. As such an issue that arises in relation in this case is whether that fear is ‘well-founded’.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
According to DFAT, Bangladesh politics have long been dominated by the Awami League and the BNP. The relationship between the two parties is characterised by a long-standing entity. Bangladeshi politics is heavily based on patronage which DFAT reports is ‘far more important than ideology’. DFAT notes that the Awami League sought to restrict the activities of opposition political parties, particularly the BNP. The BNP is currently the main opposition in Bangladesh and while it has formed a government several times since Bangladesh was established in the 1970s it has boycotted elections and has been less influential over the years.[4]
[4] DFAT, DFAT Country Information Report - Bangladesh, 30 November 2022 at [3.65] – [3.69].
DFAT reports that BNP figures allege they have been subjected to enforced disappearance, daylight raids and that BNP supporters have been arrested during protests.[5]
[5] Ibid at [3.80].
Relevantly, DFAT reports as follows:
3.83. False criminal charges and vexatious civil court procedures are used to harass members of the BNP. As outlined in the section on the judiciary, the Bangladeshi court system is difficult and expensive to navigate, as well as slow and subject to corruption. It is possible that charges, particularly related to violence, are genuine – protests in Bangladesh are often very violent. It is difficult to apply an overall assessment to various circumstances, particularly if a charged person denies being engaged in violence.
3.84 The patronage-based nature of Bangladeshi politics means that the BNP has lost support (it has less to offer members), and thus influence and capacity, to hold mass demonstrations, further reducing its visibility. DFAT understands from sources that the party is not actively recruiting new members at this time, but notes that this could change in the lead up to the national elections (due January 2024). DFAT assesses that allegations of violence against BNP figures are credible. Reports of violence by BNP activists are also credible. High profile figures are more likely to be targeted by politically motivated charges; however, DFAT assesses that any BNP member who actively opposes the government, and especially if they are involved in violent protests, can be targeted through criminal charges.[6]
[6] Ibid at [3.83] – [3.84].
In relation to state protection, DFAT reports as follows:
5.5 Most people do not trust the police, given their reputation for corruption and violence. Some religious minorities, for example, have benefited from police presence, but most people that DFAT spoke to had a negative view of police. GAN Integrity, a United States consultancy, notes ‘Businesses ranked the Bangladeshi police as one of the least reliable in the world and noted business costs due to crime and violence.’ DFAT assesses that most Bangladeshis, whether in business or not, would avoid contact with police for similar reasons.
On questions about the judiciary and court proceedings, DFAT reports:
5.7 The court system has several systemic challenges. Corruption is widespread. Sources told DFAT that the problem is worse in the lower courts. According to sources, cases can continue if bribes are not paid, but it makes an already slow process much slower. Other sources told DFAT that cases can get ‘stuck’, possibly indefinitely, without bribes.
5.8 Political bias is alleged, including in relation to bail applications. Alleged interference involves judicial appointments and judges referring to political matters in making decisions. According to sources, the problem is worse in the lower courts than the higher courts.
5.9 There is a large backlog of cases across the court system and some cases take over ten years to resolve, a situation of which vexatious litigants take advantage, to extend legal rulings indefinitely. Having to return to court for various hearings or intermediate proceedings can be particularly difficult for the poor, who must take time off work and pay for travel. The same applies to criminal cases, where prisoners are sometimes held on remand for long periods, or bailed then rearrested in quick succession. Bribe payments can affect these outcomes. Whether long-running cases are eventually dismissed differs from case-to-case. A ruling from a higher court would be necessary to reverse or quash a decision, but this is cost-prohibitive for most Bangladeshis.
5.10 Cases can proceed in absentia, for example, if the defendant is in Australia making an asylum application. DFAT understands that court cases where the defendant is absent only occur in exceptional cases involving very large amounts of money or serious charges. Because of corruption and poor information technology infrastructure, DFAT assesses that it is possible that a person facing court would be able to flee Bangladesh, but this is less likely for a person who is facing serious charges or who is of interest for their political activity as immigration authorities would likely be alerted to such cases (see Exit and Entry).[7]
[7] Ibid at [5.7] – [5.10].
This country information is consistent with the first named applicant’s claims. Relevantly, the available country information suggests that certain BNP supporters may be targeted, it is possible that they may be targeted through false charges, there are concerns about the police and corruption more generally and the judiciary and court system is not only slow but there are concerns about backlogs and outcomes that may be improperly influenced with the use of the court system to prolong litigation for many years.
The first named applicant also provided country information said to be relevant to this issue, including an article published by the Lowy Institute on 26 January 2023 headed ‘Sanctions help bring accountability in Bangladesh’, a recent article from Human Rights Watch headed ‘US stands firm on sanctions on rights abuses in Bangladesh’, a media article headed ‘US sanctions on Bangladesh’s RAB, What happened? What’s next?’ published on 16 December 2021 and media articles in relation to statements made by Senator Rice, Senator for Victoria, about human rights abuses in Bangladesh. Interestingly, a number of these articles suggests that the position has improved as a result of US sanctions and global scrutiny. While I accept that this may be the case, the most recent country information from DFAT suggests that there are still significant issues in Bangladesh relating to potential human rights abuses and, relevant to the facts this case, the real possibility of targeting and harassment of those who are perceived to oppose the ruling party or Awami League supporters who may be afforded the benefits of patronage.
In considering the question of whether the first named applicant’s fears are well-founded, there must be a factual or objective basis for that fear. As already noted, a fear of being persecuted is well-founded if there is a ‘real chance’ of being persecuted. The persecution must have a relevant refugee nexus and the nexus (or reason) must be the essential and significant reason for the persecution and must involve serious harm and systematic and discriminatory conduct. Relevant to the facts and claims made in this case, it is claimed that the first named applicant’s political opinion, either imputed or actual, is the essential and significant reason for the persecution. It is also claimed that the first named applicant has already faced, and will face, serious harm if he returns to Bangladesh. Having regard to the claims made, there are two questions that arise.
The first question is whether there is a real chance that the first named applicant will face serious harm on his return to Bangladesh. The second question is whether the essential and significant reason for the harm is based on a refugee nexus, in this case, claimed to be the first named applicant’s imputed or actual political connection with the BNP.
The first named applicant contends that he will be targeted by authorities, and this is evidenced by what has happened in the past and, more recently by the false charges that have currently been laid in relation to the [business 2] business and the fact that authorities allegedly asked about him when they came to the [business 2] premises in 2019.
The first named applicant has been away from Bangladesh for over seven years. He has, however, remained involved in the [business 2] business, albeit remotely, and has continued to be involved in decision-making in relation to the business. He claims that there has been a continuum of discrimination and harassment relating to his BNP connections from at least 2011, resulting in the police raid, physical harm and threats from 2015 until the time he left Bangladesh. He further contends that this continued after he left Bangladesh and [business 2] continued to be targeted at a time when he has been and continues to be the chairman of [business 2]. This resulted in a civil action being taken by [business 2] against the government and other authorities and, while he contends the action was successful, which cannot be substantiated, it appears that [business 2] was at least partially successful in this action.
The first named applicant further contends that, as a result of this, false criminal charges were lodged against his business partner and the company employees. Even though he was not implicated in those charges because he was not living in Bangladesh at the time, the offences are alleged to have taken place, the fact criminal charges have been paid and are continuing indicates that there is the potential for him to be targeted on his return. The first named applicant’s assertion that he will be arrested at the airport and ‘disappeared’ is possibly an exaggeration but, based on the material before me, I cannot reject the claim that the first named applicant may continue to be a target on his return. The first named applicant is not a high-profile BNP leader but he has, on his own account (supported to degree by [individual 3], [individual 5] and [individual 1]), been a financial supporter of the BNP over the years. I accept this claim.
Prior to leaving Bangladesh, the first named applicant was a wealthy businessman. The current state of his finances is unclear, and he has probably struggled because of the inability of the [business 2] business to continue operation. However, I accept based on his evidence that he has retained significant financial interests in real estate and other businesses. It is possible that he may be perceived by government and government officials as a potential threat to the Awami League if he continues to finance the BNP. There is country information to the effect that the Awami League still actively seek to quell opposition and monitor Bangladeshi diaspora for this purpose. There is also the claim made by him that the previous involvement of the ‘silent’ partners, who were Awami League supporters, may have also contributed to the risks.
Having regard to these matters, I cannot discount the possibility that the first named applicant will be targeted on his return and, as such, I am of the view that this risk is not remote or speculative. I am therefore satisfied that there is a real chance the first named applicant will face serious harm if he returns to Bangladesh in the foreseeable future, including physical harm and harassment.
I note that there is country information to the effect that the Bangladesh government has been taking action in relation to the use of Shisha.[8] It is possible that the action taken in relation to [business 2] is legitimate law enforcement action, and not targeting on the basis of the first named applicant’s perceived connection and financial support for the BNP. If this was the case, the potential harm claimed would not have a refugee nexus.
[8] “Shisha smoking on rise among youths in capital”, Daily Sun, 16 September 2017, Shisha now drug, The Independent Bangladesh, 4 March 2018, is going on in name of Shisha bar?”, Daily Sun, 27 September 2022, Shishabar#:~:text=The%20law%20provides%20for%20imprisonment,in%20consuming%20or%20selling%20it.
Further country information and media reporting in relation to this issue suggests that the position in relation to Shisha and hookah bars is more complex. There was reporting in February 2020 that illegal Shisha lounges continue to flourish, although it was also reported on 19 April 2021 that Shisha will come under regular monitoring for the first time.[9] In summary, there has been increased focus on Shisha and hookah bars since about 2018 but these bars are not illegal and whether enforcement action will be taken, depends on whether the businesses are operating within the law. Relevantly, the evidence of [individual 5] and [individual 4] is to the effect that this was the case. If this is so, and I accept that this is simply an assertion, this would tend to suggest that the targeting of [business 2] potentially went beyond the legitimate regulation of Shisha. Given the other claims made by the first named applicant, a number of which have been corroborated by evidence, the assertion that the current criminal charges are false charges to harass [business 2] and the first named applicant’s business interests, is plausible and I accept the contention that the potential targeting may be focused on the [business 2] business and the first named applicant and that this may have a connection to his previous activities and BNP connections.
[9] “Youths getting addicted to Shisa bars”, Daily Sun, 23 February 2022, and “Shisha bars to come under regular monitoring”, The Business Standard, 19 April 2021,
Whether a fear is well-founded is a question to be determined on the whole of the evidence. As observed by Kirby J in MIEA v Wu Shan Liang [1996] HCA 6 at [26]:
…the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material.
Justice Kenny considered this observation in MIMA v Rajalingam [1999] FCA 719 at [140] and stated:
In deciding whether it has a relevant satisfaction for grant of a protection visa, the Tribunal is required to bear in mind the totality of the case. That, as we have seen, includes any relevant uncertainty that it entertains as to whether claimed events in the first named applicant's past may ground a fear of persecution for a Convention reason. In that respect, the Tribunal is required to do no more than to satisfy itself in accordance with commonsense and the ordinary experience of mankind.
In this case, I accept that many of the events claimed by the first named applicant happened and cannot foreclose the possibility that the events have a refugee nexus and may arise in the future. Accordingly, I accept that the first named applicant faces a real chance of persecution.
Given that the persecution relates to the Bangladesh government and government authorities, I accept that this persecution relates to all areas of Bangladesh. I also accept that this is not a case where effective protection measures are available from the State.
For the reasons given above, I am satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a). I have not considered, because there were no submissions or no evidence relevant to such a claim, whether the second and third named applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). It is possible, that the first named applicant’s family would also face a real chance of persecution as members of a particular social group, being his family and by reason of their association with him.[10], However, I am satisfied that the second and third named applicants are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their applications depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
[10] Refer to section 5L of the Migration Act.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
J.L Redfern PSM
Deputy PresidentAttachment - 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.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the first named 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 first named 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 first named 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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Remedies
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Natural Justice
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