1703360 (Refugee)

1703360 (Refugee) [2020] AATA 4844 (13 October 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1703360

COUNTRY OF REFERENCE: Bangladesh
MEMBER:Tania Flood
DATE:13 October 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 October 2020 at 9:34am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh National Party – Jatiyatabadi Chhatra Dal – physical assault – return visits to Bangladesh – mental health issues – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424
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 on 1 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Bangladesh, applied for the visa on 18 October 2016. The delegate refused to grant the visa on the basis that there is no evidence that suggests the applicant will face serious or significant harm on the basis of his membership of the Bangladesh Nationalist Party (BNP) if he returns to Bangladesh.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Bangladesh for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information contained in his application for a Protection visa, the applicant is [a n age]-year-old citizen of Bangladesh. He was born in the Narail District situated in the Khulna Province of Bangladesh. The applicant’s parents and [specified family members] reside in Bangladesh. The applicant has one uncle who lives in Sydney. He completed his primary and high school education in Bangladesh and attained a [qualification] from [an Australian college] in December 2012. From 2013 to 2015 he enrolled in a [specified course] on three occasions at various vocational education institutions but withdrew due to difficulties in completing the coursework. From 2014 to 2016 he worked as [an occupation] at a [business] in [Sydney] and is currently unemployed.
The applicant first arrived in Australia [in] July 2012 as the holder of a [Student visa]. He applied for a permanent Protection visa (subclass XA 866) on 18 October 2016. On 1 February 2017 a delegate of the Department refused his Protection visa application.
In the applicant’s statement dated 17 October 2016, he made the following claims:
In 2008 he decided to join the Jatiyatabadi Chhatra Dal, the student wing of the Bangladesh Nationalist Party, while studying at [College 1] in Bangladesh, where he was inspired to join the auxiliary organisation by student activists.
In 2011 he became [Position 1] of Chhatra Dal at his college. In the same year he applied for admission into a bachelor’s degree at the [College 1], and while standing in front of the main student office he was randomly attacked by members of the Bangladesh Chhatra League, the student wing of the Awami League (AL). The applicant was left unconscious and was rushed to a local hospital by bystanders where he remained for three days.
Sometime after this incident the applicant’s family strongly advised him to leave Bangladesh and study abroad. Fearing for his safety and heeding the advice of his family, the applicant decided to travel to Australia in July 2012.
In December 2015 the applicant returned to Bangladesh to visit his family and soon after his arrival he was brutally attacked by a group of members of the Chhatra League as he made his way to the main office of the BNP in [Town 1], which led to him being hospitalised for three days.
Soon after being discharged from hospital in Bangladesh he returned to Australia. Upon his return to Australia, his parents, relatives and friends urged him not to return to Bangladesh because the situation was too dangerous and his life would be in jeopardy.
The applicant claims that if he returns to Bangladesh he will be seriously harmed by the Awami League supporters on account of his political membership of the Bangladesh Nationalist Party.
Submissions to the Department
Apart from the applicant’s written statement dated 17 October 2016 and a letter from the [specified leader] of the Bangladesh Nationalist Party dated [in] December 2016 (which the applicant tendered during his protection visa interview), he did not provide the Department with any additional evidence to support his claims for protection.
Pre-hearing Submissions to the Tribunal
The applicant provided various reports to the Tribunal which it is submitted demonstrate the current political situation in Bangladesh. These include:
-ARC Research Centre
-Bangladesh Human Rights 2018 report
-Brown political report 2019
-Document of Diplomat
-Human Rights Monitoring Reports 2019
On 3 August 2020 the applicant’s representative submitted the following:
The applicant comes from a middle-class Bangladeshi family. His father was [an occupation] and his mother a housewife. His father was a freedom fighter who fought for the nation during the Liberation War in 1971.
In [year] the applicant passed the Secondary School Certificate and in [year] he completed the Higher Secondary Certificate.
The submission restates the applicants above-mentioned claims for protection. It is submitted that the correct and preferable decision is that the applicant has a well-founded fear of persecution for a Convention reason and is entitled to a protection visa.
On 5 August 2020 the Tribunal received a statutory declaration made by the applicant which re-confirms his situation in Bangladesh has not changed and he remains fearful of returning to Bangladesh on account of his political opinions.
Tribunal hearing
The applicant appeared before the Tribunal on 5 August 2020 by video conference to present arguments in support of his case. The hearing was held during the COVID-19 pandemic and the Tribunal determined it was reasonable to hold the hearing by video conference having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The applicant was assisted in the hearing by his nominated representative. The Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments. His testimony and responses to questions put to him by the Tribunal is summarised as follows:
He was born in Narail District in Khulna Province, Bangladesh. He lived there until he relocated to Dhaka to sit his IELTS exams about six months before departing Bangladesh for Australia. While in Dhaka he lived with his sister. During that period he travelled back and forth between his hometown and Dhaka. His parents remain living at his home address.
His [uncle] has lived in Australia for more than twenty years and is a citizen.
His family members are supporters of the BNP. His father was involved with the BNP but now he is older and just shows his support from home as he has had heart surgery and doesn’t go out much anymore.
He completed his higher secondary education at [College 1]. He had wanted to enrol in further studies but when he went to enrol he faced some problems with the AL and his parents decided to send him abroad. He last attended academic classes in Bangladesh in 2011. He never worked in Bangladesh.
Since his first arrival in Australia he has returned to Bangladesh twice. In 2013 he returned for around two months to visit his sick mother. He stayed in Dhaka but did return to Narail District once to see his grandmother. He was worried about his safety and did not tell his friends he was in Dhaka because a lot of people from his District live in Dhaka.
In 2015 he returned to Bangladesh for two weeks. In 2014 he was feeling depressed and attempted suicide. After his recovery he went to see his family. He stayed in Dhaka for the duration of his visit.
He attempted suicide because he was under a lot of stress and worried about what might happen to him if he returned to Bangladesh. He was treated for a stab wound at [an Australian] hospital.
As to why he fears returning to Bangladesh he said that he was attacked by AL people in December 2015. He said he was leaving his sister’s house and he was attacked without notice. He speculated that the AL people might have learnt he was there through other people from his District living in Dhaka. He added that the political situation in Bangladesh is now very bad and it is not possible for people to openly support the BNP.
When questioned further about the circumstances of the attack in 2015 he said that his family travelled from the District to Dhaka to see him and it is possible that somebody followed them. He said that from the village to Dhaka there is only one highway and it is necessary to change vehicles a few times. He thought that someone might have noticed them.
The Tribunal asked the applicant why the persons he fears did not locate him in Dhaka in that manner prior to his departure from Bangladesh. He said that he might just have been lucky. He added that he was chased a few times but he managed to escape. He had no response for why he did not mention this fact earlier in proceedings.
When asked why the AL people bothered to attack him after being absent from the country for several years he said that it is common for people to hold long grudges. He added that since being in Australia he has offered some help to friends in Bangladesh and the AL might have learnt about that. He said that a few times he was asked to provide financial assistance to purchase sporting and other equipment or for EID celebrations and other festivals. When asked why such assistance would attract adverse attention from the AL he said that the friends he helped are BNP supporters and they used some of the money for BNP sporting events. He said he sent around $300 or less about once a year. On another occasion he said he helped a friend who was going overseas.
He said he did not know who his attackers were in 2015 and he didn’t get a chance to see them clearly as it happened very quickly. He thinks there were 3 or 4 attackers and he sustained cuts and bruises. He said he went to a private clinic where his wounds were bandaged and stitched. He said he remained at the clinic for 3 days. He said he had some medical evidence but he has lost it. One day after his release from the clinic he departed Bangladesh.
As to his political involvement in Bangladesh, he said that he made friends with BNP supporters in college and joined the party. In 2008 there was a national election and he started working for the party. He became a member of Chhatra Dal in 2009 and in 2011 he was elected as [Position 1]. Before he became the [Position 1] he attended processions and meetings as an ordinary member. In his role as [Position 1] he filled in for the Secretary when required. He also attempted to recruit new members.
When asked if he has maintained an interest in the affairs of Chhatra Dal he indicated he does but not at the same level as before. He said that over time he became depressed and unwell and his interest gradually faded away. He said he does not have much interest in it anymore. Nevertheless, he said that if he is required to return to Bangladesh he will resume his engagement with the BNP.
When asked when and how he obtained the letter of support from the BNP which he has tendered as evidence he said that when he became aware he would need a letter he contacted the relevant people and organised to get it.
The Tribunal discussed with the applicant country information which indicates a high prevalence of fraudulently obtained documents from Bangladesh. The applicant’s response was that if given the opportunity he can submit documentation regarding his suicide attempt and hospitalisation in Australia.
When asked if he had been attacked before 2015 he said he was attacked once in 2011 during his college years. He said he was at the college admissions office when the attack occurred in about April or May 2011. He said his family was well known within the BNP and that could have contributed to the attack. He said that he was beaten up and again spent 3 days in a private clinic.
The applicant confirmed he left Bangladesh in July 2012. When asked what he did in the time between the attack and his departure he said that for a while he continued to live at home in the village but afterwards he moved to Dhaka to sit the IELTS exam.
The Tribunal put it to the applicant that he spent at least six months living in Dhaka and he has not reported suffering any harm there. He responded that people higher up in the party don’t get into much trouble. He said that it is those at the lower end of the structure who frequently get attacked. The Tribunal differed with this opinion noting that country information reports indicate that it is senior members and high-profile members and activists who are more likely to encounter problems for their political opinions. He responded that In Narail District he was conducting his activities in suburbia; in a small location where everybody knows each other.
When asked if he was engaged in political activity in Dhaka in 2012 he said he participated in activities at the main BNP office in [Town 1]. He said he attended meetings and processions. The Tribunal put it to him that it is difficult to accept that he was able to operate in that manner in 2012 without being harmed and yet soon after returning home in 2015 he was attacked. He said that in 2012 he was a young and junior person within the party and his involvement was not that frequent. He estimated he participated in events 2 or 3 times in the 6 months that he lived in Dhaka.
The Tribunal put it to the applicant that it is surprising that he did not apply for a Protection visa immediately upon arriving in Australia in 2012. He responded that he hoped he would have a good life in Australia but later went through a period of depression and attempted suicide. He said because of that he couldn’t think about doing anything. He added that initially he was not so worried or anticipating that the problem would repeat itself. He said that when he was attacked in 2015 he realised his political enemies had not forgotten him.
The Tribunal put it to the applicant that it is surprising that after returning from Bangladesh in 2015 he waited ten months before applying for a Protection visa. He said that until that time he had a valid visa. He said he did not want to be in Australia illegally and when his visa expired he applied for the Protection visa. He added that he was quite depressed when he came back from Bangladesh and he had some family problems. He said that with everything that was going on he delayed his application.
When asked if he has had any involvement with the BNP in Australia he said that it appears there are several different groupings operating in Sydney under the banner of the same party. For this reason he chose not to get involved.
When ask if there was anything further he wished to say he said that he is very depressed and fearful of returning to Bangladesh. He confirmed he was not consulting a medical professional for his depression but requested further time to provide a medical assessment.
Before the hearing concluded the Tribunal put it to the applicant, pursuant to the requirements at s.424AA of the Act, that he previously informed a Delegate of the Department that he occupied the position of [Position 2] of Chhatra Dal in Bangladesh whereas his written claims and supporting documents from the BNP indicate that he held the position of [Position 1]. The Tribunal informed the applicant that if it were to rely on this information it may not accept his claimed level of political involvement with the BNP which could lead to the decision under review being affirmed. The applicant indicated that he would like to respond to the information after a short adjournment but upon recommencement of the hearing his representative requested that the applicant be given an opportunity to respond to the information in writing. The Tribunal agreed to put the information to the applicant in writing and granted the applicant 14 days to respond to the information.

The applicant’s representative submitted that the 10-month delay in lodging an application for protection in 2015 was due to the applicant’s mental health condition.
Post-hearing
On 6 August 2020 the Tribunal wrote to the applicant pursuant to s.424A of the Act and advised him that the audio recording of his interview with the delegate reveals that he said he was elected to the position of [Position 2] in 2011 whereas his oral evidence to the Tribunal and the letter of support provided by the BNP in Bangladesh indicates that he was elected to the position of [Position 1] in 2011. The Tribunal explained the relevance of the information and the impact of the Tribunal relying upon it and invited him to comment on or respond to the information in writing by 26 August 2020.
On 26 August 2020 the applicant’s representative wrote to the Tribunal informing that the applicant attended an appointment with his general practitioner on 24 August 2020 and has been referred to a psychologist for an assessment on 21 September 2020. The representative requested an opportunity for the applicant to file a report regarding his mental health after 21 September 2020. Attached to the submission is a patient assessment sheet completed by the general practitioner which states the applicant presents with anxiety, depression and stress. The patient history section states that he is fearful of going back to his country and he has applied for political asylum. Under risks and co-morbidities it is stated that the applicant attempted suicide in 2014 but is not suicidal now. He is assessed as requiring counselling. Also attached is a referral letter to the psychologist.
The applicant also provided a statutory declaration dated 26 August 2020 which states:
a.His situation in Bangladesh has not changed and he has a real fear of returning.
b.He is mentally and psychologically affected and stilled scared about returning to Bangladesh.
c.He has been referred to a psychologist.
On 1 September 2020 the Tribunal granted the applicant an extension of time to 28 September 2020 to provide a psychologist’s report. The applicant was also given until 28 September 2020 to respond to the adverse information contained in the Tribunal’s letter of 6 August 2020.
On 23 September 2020 the applicant’s representative wrote to the Tribunal attaching a further statutory declaration by the applicant and a letter from a Forensic Psychologist. The applicant’s statutory declaration states that on or about the date of his hearing he was requested to provide a detailed assessment for the purpose of ascertaining his psychological symptoms. He declares that he suffers from extreme depression, anxiety and stress disorder. He attended an appointment with a psychologist on 21 September 2020 and a detailed assessment has been scheduled for 2 November 2020. The applicant states that a comprehensive report regarding his mental health assessment will be available on or about 26 November 2020. The applicant states that he is mentally and psychologically distressed by such delay in complying with the Tribunal’s direction and hence he wishes to apply for an extension of time to 26 November 2020 to provide the report.
A letter from [Psychologist A], Forensic Psychologist dated 21 September 2020 states that an initial assessment reveals the applicant is experiencing symptoms consistent with a diagnosis of depression, anxiety and stress in the extremely severe range. The letter restates the basis for the applicant’s claims for protection. The letter also states that the applicant attempted self-harm multiple times and has attempted suicide in the past. [Psychologist A] undertook to provide a detailed assessment report on 26 November 2020.
On 24 September 2020 the Tribunal wrote to the applicant asking for submissions on the relevance of a further psychological report to the consideration of whether he is entitled to a Protection visa. He was afforded until 28 September 2020 to do so.
On 28 September 2020 the applicant’s representative wrote to the Tribunal and submitted that the report was requested by the Tribunal after the hearing based on the facts exhibited during the hearing. The letter restates that the applicant attempted suicide in the past and his current mental state is believed to be a product of the persecution he experienced in Bangladesh. It is also submitted that the applicant is going to be persecuted in addition for the status of his mental health condition.
FINDINGS AND REASONS
Country of reference
Attached to the Department’s file is a copy of the applicant’s People’s Republic of Bangladesh passport which verifies his claimed identity and nationality. Based on this information the Tribunal accepts the applicant is a citizen of Bangladesh.
Involvement with Chhatra Dal and the BNP in Bangladesh
Having considered the available evidence, the Tribunal is prepared to accept the applicant may support the BNP and had some involvement with Chhatra Dal from about 2009 to 2011 as an ordinary member. However, the Tribunal does not accept the applicant was an office bearer for Chhatra Dal given the inconsistency of his evidence in this respect. As noted above, the applicant has variously claimed to have been elected as the [Position 1] or [Position 2] of Chhatra Dal in 2011 and he has not provided a credible explanation for his differing evidence despite being afforded ample opportunity to do so. The Tribunal accepts the events took place some years ago however it does not consider the passage of time adequately explains the applicant’s mistaken representation of his claimed role in the organisation. If the applicant had been an elected office bearer for Chhatra Dal the Tribunal expects he would have been able to correctly and consistently state his position.
The Tribunal acknowledges the letter from the BNP in Bangladesh lends some support for the applicant’s claimed leadership role but for the above reasons and given the reported proliferation of fraudulent documentation circulating in Bangladesh[1] the Tribunal has given the letter little weight. The Tribunal also accepts the applicant has produced a preliminary medical opinion which indicates he is depressed, anxious and stressed and given his uncertain tenure in Australia the Tribunal accepts this likelihood. However, there is nothing in the medical information currently before the Tribunal to indicate that the applicant’s memory or cognitive abilities are impaired such that his evidence to the Tribunal might be confused. The Tribunal’s reasons for proceeding with the review in the absence of a further psychological report are outlined below.
[1] DFAT, Country Information Report, Bangladesh, 22 August 2019; Immigration and Refugee Board of Canada, Bangladesh: Reports of fraudulent documents (2011-2015) BGD105263.E; French Office for Protection of Refugees and Stateless Persons (OFPRA), Report on the mission to the People’s Republic of Bangladesh from 2 to 14 April 2015; European Migration Network, Ad-hoc Query on assessment of documents submitted by asylum seekers from Bangladesh, Responses from 21 countries, compilation produced 15 December 2014
During the hearing the applicant stated that he attended a few political meetings of the BNP in the time he was living in Dhaka in 2012. He said he was chased on a few occasions by AL members but managed to avoid any harm. When asked why he has never mentioned this in any of his previous testimony he provided no comment. Given the late introduction of these claims, and in light of the credibility concerns expressed above and below, the Tribunal is not prepared to accept the applicant engaged in any political activity with the BNP while living in Dhaka in 2012 and/or that he was targeted by the AL for this reason.
Claimed attack by AL members in 2011
The Tribunal acknowledges that the applicant has consistently claimed to have been attacked by AL members in 2011. However, in light of his subsequent behaviour the Tribunal is not persuaded that this evidence can be believed. For instance, despite claiming to have been beaten to the point of unconsciousness and requiring a three day stay in hospital, the applicant’s evidence is that prior to his departure from Bangladesh in 2012 he continued to travel back and forth between his local area where the attack occurred and Dhaka where he spent his last six months in Bangladesh. Given the severity of the claimed beating the Tribunal considers his willingness to return to the scene of the attack raises serious questions about this aspect of his claims. In addition, the applicant did not seek protection from the Australian government upon his arrival in 2012. During the hearing the applicant said that initially he was not so worried or anticipating that the problem would repeat itself. The Tribunal considers the response to be at odds with his written claims which indicate he left Bangladesh to secure his safety. Furthermore, the applicant then travelled back to Bangladesh in 2013 and provided evidence to the Tribunal that he returned to his local area at least once in the time he spent in the country. For these reasons the Tribunal is not satisfied that the claimed attack at the hands of AL members in 2011 occurred or was the reason for the applicant’s departure from Bangladesh.
Claimed attack by AL members in 2015
As discussed with the applicant during the hearing the Tribunal is not persuaded that the circumstances existed for the applicant to be targeted for attack by AL members in Dhaka in 2015. The Tribunal does not accept the applicant had a political profile in Dhaka and by the time he was attacked he had been absent from the country and BNP politics for three years. Indeed, he returned to Bangladesh in 2013 without incident. Prior to his departure from Bangladesh in 2012 he claims he spent six months living in Dhaka without incident despite conceding that he travelled back and forth between Dhaka and his local area during this time. The Tribunal does not find it plausible that his family members were being monitored over the course of several years as his evidence suggests on the off chance that their movements might lead his opponents from Narail to him in Dhaka.
The applicant claims that on a few occasions he has given financial support to various friends who happen to be supporters of the BNP. He claims that they used some of the financial assistance he gave them to participate in BNP activities and that AL members might have become aware of this thereby leading to his attack. The Tribunal considers his claims to be speculative and given the limited and sporadic nature of his assistance to his friends and the unlikelihood of BNP supporters informing the AL of this, the Tribunal is not satisfied that this situation could have led to a physical attack upon the applicant in 2015.
Added to the above concerns is the fact that the applicant again did not seek the protection of the Australian government immediately upon his return from Bangladesh in 2015 after experiencing yet another brutal attack at the hands of the AL. During the hearing the applicant stated that he was depressed and had family problems and this contributed to the delay in him making an application for protection. His representative also submitted that his mental health condition contributed to the delay. The Tribunal has considered the submission but there is no evidence before the Tribunal to support that the applicant’s mental health was so debilitated that he was unable to attend to his daily needs or make any decisions in respect of his future. Relevantly, he advised the Tribunal that he had not sought any counselling in respect of his mental health before the hearing which suggests some resilience on his part.
The Tribunal is prepared to accept that the applicant’s uncertain status in Australia, or indeed his family or personal circumstances at the time might have caused him to feel depressed, anxious and stressed. However, if the applicant’s claims are to be believed the Tribunal considers there could have been no doubt in his mind that a return to Bangladesh was out of the question after his return visit in 2015. While the Tribunal acknowledges his claim that he remained in possession of a valid visa until such time as he lodged the application for protection, the Tribunal is of the view he would have known that this visa was only temporary and provided no guarantee of his safety. In light of the circumstances the Tribunal considers the delay in seeking a protection visa after his return to Australia in 2015 seriously undermines his claim to have been attacked in 2015. The Tribunal acknowledges that the medical reports currently before it refers to the problems experienced by the applicant in Bangladesh but notes that the reports are merely a narration of the applicant’s own account of events. On the available evidence the Tribunal does not accept the applicant was attacked by AL members in 2015.
In summary the Tribunal accepts the applicant may have had some low-level involvement with Chhatra Dal when he was a student between [year] and 2011. The Tribunal does not accept the applicant was attacked by AL members in 2011 or 2015 or that he was engaged in any BNP political activity or targeted by AL members while living in Dhaka for six months prior to his departure from the country.
Is there is a real chance the applicant will suffer serious harm if he returns to Bangladesh now or in the reasonably foreseeable future?
Political Opinion
The Tribunal accepts the applicant may have had some involvement, as an ordinary member, with Chhatra Dal as a student. However, the Tribunal is of the view that he last had any active engagement with any arm of the party in 2011. During the hearing the applicant advised that his interest in the affairs of Chhatra Dal has gradually faded away and he maintains little interest in it. Furthermore, he has lived in Australia, where there is an active BNP presence since 2011 and claims to have had no involvement with the BNP during this time. The Tribunal notes his claim that there are differing groups operating under the banner of the BNP in Sydney and that this caused him to refrain from any involvement with them. Ordinarily the Tribunal may have given some weight to this explanation however the applicant maintains that he was actively involved with the BNP in Bangladesh and that he will resume that level of involvement if he is required to return. In view of his claims the Tribunal finds it difficult to accept he would not have made more of an effort to further his involvement with one of the BNP groupings in Australia. In the absence of any political engagement with the BNP since 2011 and in the absence of a plausible explanation for this, the Tribunal is not persuaded that the applicant will actively or publicly provide support for the BNP if he returns to Bangladesh.
The Tribunal is prepared to accept the applicant will continue to favour the BNP over the AL if he returns to Bangladesh. However, as was also discussed with him during the hearing, DFAT’s[2] most current advice is that under the current AL government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges and travel bans and active members of opposition political parties and auxiliary organisations who participate in demonstrations also face a high risk of arrest and physical violence, both from security forces and ruling party activists. Those who are members of opposition political parties and auxiliary organisations but who do not engage in political activities and demonstrations face a lower risk of arrest. The Tribunal acknowledges the applicant’s claim that the political environment in Bangladesh has not improved since his departure and accepts the claim is supported by independent country information. The Tribunal also acknowledges the continuing reports of politically motivated violence in Bangladesh including those reports referenced by the applicant in his submissions. However, the Tribunal does not accept the applicant had or has a high profile within either Chhatra Dal or the BNP or that he will pursue membership of the BNP or a leadership position or any other active role in the BNP if he returns home. As noted above, the Tribunal is not persuaded, on his evidence, that he maintains any strong interest in the BNP. The Tribunal is not satisfied on the information before it, that the applicant will engage in any outward political support for the BNP which is likely to attract adverse attention from AL members or the Bangladeshi authorities if he returns to Bangladesh now or in the reasonably foreseeable future. While the Tribunal accepts he may continue to favour the BNP over any other political party in Bangladesh it is not persuaded that he suffered any harm in the past for this reason or that he will come to harm in the future just for this reason.
[2] DFAT Country Information Report, Bangladesh, 22 August 2019
The Tribunal has considered whether the applicant’s association with friends who are BNP supporters will cause him harm if he returns to Bangladesh. The evidence indicates that the friendships were established prior to the applicant’s departure from Bangladesh and the Tribunal is satisfied that he suffered no harm at the hands of the AL prior to leaving the country. Therefore, the Tribunal can see no reason why his friendship with BNP supporters will lead to him being seriously harmed in the future.
For all the above reasons, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm if he returns to Bangladesh on account of his political opinions.
Mental Health
As outlined above the applicant’s representative has submitted that a psychological assessment report was requested by the Tribunal after the hearing based on the facts exhibited during the hearing. It is submitted that the applicant attempted suicide in the past and his current mental state is believed to be a product of the persecution he experienced in Bangladesh. It is also submitted that the applicant is going to be persecuted in addition for the status of his mental health condition.
Firstly, contrary to the representative’s submission the Tribunal did not request that a psychological assessment report be provided. Rather, the representative asked for further time in order for the applicant to consult a psychologist. During the hearing the Tribunal queried the value of him doing so, expressly noting that the production of a psychological report at this stage of the proceedings would not establish a history of treatment for a diagnosed condition. Regardless, the Tribunal agreed to wait until 26 August 2020 for the submission of medical reports. On 26 August 2020 the Tribunal was advised that two days prior, the applicant had only just attended a consultation with his general practitioner. Nevertheless, the Tribunal subsequently granted an additional extension of time for a psychological assessment report to be provided by 28 September 2020. On 23 September 2020 the Tribunal was advised that the earliest date it could expect to receive the report is 26 November 2020. On 2 October 2020 the Tribunal declined the request for a further extension of time to produce a psychological report but informed the applicant that any further information provided prior to the time of decision would be taken into consideration. The Tribunal received no further information from the applicant. For reasons outlined below the Tribunal has decided to proceed with the review in the absence of a further report.
During the hearing the applicant advised the Tribunal that he made a suicide attempt in 2014. His representative has submitted that his condition is a result of the political persecution he suffered in Bangladesh but as can be seen from the above reasoning the Tribunal is of the view he did not suffer any past harm for the reasons claimed. The available medical reports also draw a connection between the applicant’s mental health and his claimed fears of returning to Bangladesh on account of his past experiences and future fears. However, the Tribunal considers those remarks are merely a repetition of information relayed to the medical professionals by the applicant himself. The Tribunal accepts the applicant may be suffering from depression, anxiety and stress and that a further psychological report will likely re-confirm this. For this reason, and given the amount of time already afforded to the applicant to provide another report, the Tribunal but did not see any benefit in delaying the outcome of the review unnecessarily by waiting for a further psychological assessment. The Tribunal accepts, on the available information, that the applicant did attempt suicide in 2014 but is unable to conclude that it was due to any past harm he suffered in Bangladesh.

The Tribunal has considered the claim raised in post-hearing submissions that the applicant is at risk of serious harm in Bangladesh on account of him of having a mental health condition which includes symptoms of depression, anxiety and stress. According to the most recent report by DFAT[3] a significant stigma attaches to people with mental health conditions in Bangladesh. DFAT reports that there have been public reports of mental health facilities and families shackling those with mental health conditions with chains or ropes to restrain them although it is noted that it is unclear whether this practice is widespread.
[3] DFAT Country Information Report, Bangladesh, 22 August 2019
The Tribunal accepts the applicant may be experiencing some depression, anxiety and stress, for reasons which might include uncertainty about his visa status in Australia. The medical information currently before the Tribunal, while noting past suicidal ideation does not indicate the applicant is currently having suicidal thoughts. Relevantly, he confirmed during the hearing that he had not being undergoing any ongoing treatment for a mental health condition prior to the hearing and it appears it is only after the Tribunal hearing concluded that he sought an opinion about his situation. While claiming to be suffering from depression, anxiety and stress for a number of years, based on the applicant’s oral evidence to the Tribunal, he has previously worked in various positions in the [specified] sector and managed to undertake international travel on two occasions. Even without psychological intervention it appears the applicant has been able to continue to meet his daily needs and there is nothing in the medical evidence currently before the Tribunal to indicate that he is displaying any outward signs of mental illness which might heighten the risk of him experiencing the type of discriminatory treatment reported by DFAT. As to whether the applicant might encounter stigma for reason of being labelled as a person with mental health issues the Tribunal is not persuaded that there is cause to believe his condition will become common knowledge in his community. Further, there is no evidence before the Tribunal, and nor is it submitted, that the applicant’s family members will mistreat him or subject him to any other form of harm due to him experiencing symptoms of depression, anxiety and stress.
According to DFAT health care facilities in Bangladesh are generally poor in quality and while there are some private clinics that offer better quality care these tend to be beyond the means of ordinary Bangladeshi’s. Although some government health services are supposed to be free, patients report that they are generally required to pay money to access services. Consultation fees are often exorbitant and out of reach of the poor. The report goes on to state that there are few support services available for those suffering mental health disorders and private mental health facilities are primarily located in Dhaka.
It has been submitted that the applicant is from a middle-class family and he informed the Tribunal during the hearing that he has relatives in Dhaka with whom he previously lived for six months before departing Bangladesh. While DFAT reports that there are only a few support services available to persons with mental health disorders and that these are likely beyond the reach of the poor, the Tribunal does not accept that the applicant, who comes from a middle-class family and has family support in Dhaka where the better services are available, will be unable to access care and treatment for the type of mental health illness he appears to have.
Having carefully considered the claims and evidence the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm on return to Bangladesh for reason of him having a mental health condition.
For all the above reasons, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Bangladesh for the reasons claims. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) of the Act. For the same reasons already articulated above the Tribunal is satisfied that the applicant will not face a real risk of significant harm on return to Bangladesh for reason of his political opinions. Similarly, for the same reasons articulated above the Tribunal is satisfied that the applicant will not be subjected to discriminatory treatment on account of having a mental health condition such that he might suffer a real risk of significant harm. As to whether potentially limited access to health care might amount to the applicant suffering cruel or inhumane or degrading treatment the Tribunal notes the definitions in s.36(2A)(d) and (e) require there to be an intention to cause the relevant types of harm and there is no evidence to this effect before the Tribunal.
In view of the above the Tribunal is satisfied that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh the applicant will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Tania Flood
Member

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

[2020] AATA 4844

13 October 2020

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