1703449 (Refugee)

[2022] AATA 2617

1703449 (Refugee) [2022] AATA 2617 (23 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr MOHAMMED WASIF MIRZA (MARN: 0747557)

CASE NUMBER:  1703449

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Gabrielle Cullen

DATE:23 June 2022

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 23 June 2022 at 11:37am

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – member and local official of opposition political party – attack and threats to applicant and family members, and business ransacked – living in hiding – arrest warrants issued – ongoing party membership and activities in Australia – credibility – inconsistent claims and evidence – delay in departing after visitor visa granted – authenticity of supporting documentation – country information – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (b)(i), 65, 424AA

CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Chan Yee Kin v MIEA (1989) 169 CLR 379

ESD17 v MIBP [2018] FCA 1716

Ram v MIEA (1995) 57 FCR 565

SZTFI v MIBP (2015) 231 FCR 222

VFAC v MIMIA [2004] FCA 367
VSAI v MIMIA [2004] FCA 1602

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 9 February 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant), a citizen of Bangladesh, claims to fear the Awami League, the police and the Government on return to Bangladesh on account of his involvement in the Bangladesh National Party (BNP), including the Jatiyatabadi Chhatra Dal[1] (JCD) as [Official position 1] of the [Location] Thana, and as [Official position 2] of the Jatiyatabadi Jubo Dal  (JJD) [Location] Thana Committee.[2] He claims that [in] January 2014, Awami League gangsters brutally assaulted him with the intent to kill him, leaving him wounded with injuries to his head and body. He claims that as a result of the threats and visits by Awami League members to his family, his wife and children moved to his father-in-law’s house for safety. He claims they found out where his father-in-law lived and visited his family making threats. He claims he went into hiding and fled with his wife and two children in fear to Australia.

   [1] Student wing of the BNP

   [2] Youth wing of the BNP

3. The applicants arrived in Australia [in] September 2016 on tourist visas valid to 18 December 2016 and granted on 9 August 2016. They applied for protection visas on 8 December 2016.

4. The second named applicant, a citizen of Bangladesh and the wife of the first named applicant made claims in her protection visa application and attached a statement almost identical to that of the first named applicant. She claims fearing return because of the political activities of the applicant.

5. The third and fourth named applicants are the minor children of the first and second named applicants and citizens of Bangladesh. While they submitted Part C forms, no claims were made in their applications.

6. On 3 February 2017 the first named applicant was interviewed by the Department. The Tribunal has listened to the tape of that interview and where relevant the evidence from that interview appears in this decision. The second named applicant also gave evidence.

7. The delegate refused to grant the visas on 9 February 2017 on the basis that the applicant is  not a member of the BNP and its associated organisations.

8. The applicants applied for review of the Department decision on 27 February 2017 and attached the decision of the Department.

9. The applicant appeared before the Tribunal on 1 March 2021 to give evidence and present arguments. The applicant was assisted with an interpreter in the Bengali and English languages. His representative attended the hearing. The second named applicant elected not to give evidence.  

10. The applicants were given until close of business on 12 April 2021 to provide a response to any of the concerns raised, including those raised via s 424AA.

11. The issues considered in this case are as follows:

    ·Is the applicant credible as to his claims?

    ·Does the applicant have a well-founded fear of persecution in relation to Bangladesh and meet the refugee protection provisions of the Act?

    CRITERIA FOR A PROTECTION VISA

12. The relevant criteria are outlined in an attachment at the end of this decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The Tribunal has before it the Department’s file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following:

    ·The applicants’ protection visa applications dated 9 December 2016, claims made in the applications of the first and second named applicants and their attached statements, in addition to education certificates, marriage certificate and identity documents.

    ·Oral evidence of the applicant and second named applicant provided at the Department interview held on 3 February 2017 and of the applicant at the Tribunal hearing held on 29 March 2021.

    ·Submissions from the applicants’ representative dated 6 December 2016, 24 February 2021 and 9 April 2021.

    ·Applicant’s statutory declaration dated 23 February 2021.

    ·Warrants of Arrest issued against the applicant dated [August] 2016 and [January] 2020.

    ·Photographs of the applicant with the relevance described by the applicant at the hearing as outlined below.

    oNo.1[3] – the applicant cutting the ribbon in 2000/1 with local [Electorate] MP [Mr A] (BNP).

    [3] As numbered on the back by the Tribunal, including this one and the following

    oNo.2 – the applicant raising the JCD flag in 2002.

    oNo.3 – the applicant speaking at the Raising Day of JCD for BNP in 2004/5. The interpreter noted the sign behind refers to the JCD and BNP and the education system.

    oNo.4 and No.5 – raising the JCD flag and Bangladeshi flag with [Electorate] MP [Mr A] (BNP) in 2002/3.

    oNo.s 6, 7 and 8 are of the applicant with [Ms B], a former BNP MP and currently member of the BNP Standing Committee around 2005/2006.

    oNo.8 – the applicant with [Mr C], BNP [Official position] of their area taken in 2005/6.

    oNo.10 – BNP procession to commemorate [Mr D] who was given a position in the party in 2002/3.

    oNo.s 11 and 12 – the applicant with [Mr E], [Official position] of the Jubo Dal, now [Official position] of BNP Jubo Dal with others. He claims these photos were taken when he became [Official position 2] of the Jubo Dal in his area in 2010.

    oNo.13 – the applicant with BNP Mayor and elected MP in 2008/2009. The applicant said it was at a felicitation program in Dhaka.

    oNo.14 – the applicant with [Official position] of BNP, [Mr F] in 2011/12 in the BNP Office in Dhaka to seek directions as to what to do in their area. He said it was not in the main BNP office in Naya Polton, but they were in [Suburb] which is the office of [Ms G].

    ·Documents relating to the applicant’s involvement in the BNP Australia as follows:

    oLetter from [Mr H] dated [January] 2017 from JJD Australia advising the applicant has since his arrival in Australia been actively involved in their organisation. He also outlined the applicant’s involvement in the JCD in Bangladesh and advises that his life is at risk if he returns to Bangladesh due to his political profile.

    oAdditional Letter from [Mr H], [Official position], BNP Australia dated [January] 2021. The letter outlines the applicant’s connections with the BNP in Bangladesh and notes that the applicant has been participating in all programs initiated by BNP Australia. He writes that the applicant has been assigned with the job of uniting the youth forces in the Bangladeshi community. He notes the applicant was [in] the procession protesting against PM Sheikh Hasina when she visited Australia in 2018. He submits that as he was [in] the procession and this news was published in various news media he will be targeted by the autocratic ruler in Bangladesh. He claims if the applicant returns to Bangladesh he will be persecuted and killed and refers to many false cases being laid against BNP leaders.

    ·Certificates indicating the applicant served the BNP as [Official position 2] of JJD and [Official position 1] of the JCD [Location] Thana including:

    oA certificate dated [August] 2016 from the Bangladesh JCD Barisal District Unit to certify that the applicant was [Official position 1] of Bangladesh JCD, [Location] Thana Unit from 2003 to 2013 noting he served with honesty and sincerity.

    oA certificate dated [August] 2016 from the Bangladesh JCD Central Council to certify that the applicant served as [Official position 1] of Bangladesh JJD, [Location] Thana Unit from 2003 to 2013.

    oA certificate dated [August] 2016 from the Bangladesh JCD Central Council indicating that the applicant has been performing his duty as the [Official position 2] of Bangladesh JJD, [Location] Municipal Unit since 2011 with honesty and sincerity.    

    oA certificate dated [August] 2016 from the Bangladesh JJD Barisal North District Unit Barisal to certify that the applicant has been performing his duty as the [Official position 2] of Bangladesh JJD, [Location] Municipal Unit since 2011 with honesty and sincerity.

    ·Bengali Newspaper articles which mention [the applicant] in relation to his involvement in the BNP.

    oOriginal and translated copy of a newspaper article from [Newspaper 1] dated [November] 2011. The title is ‘[title]’ and refers to JJD [Official position 2] [the applicant] [making an announcement].

    oOriginal and translated copy of a newspaper article from [Newspaper 2] dated [November] 2011. The title is ‘[title]’, among other matters it notes [the applicant], municipal Jubo Dal [Official position 2] [made an announcement].

    oOriginal and translated copy of a newspaper article from [Newspaper 1] dated [November] 2011. The title of one article is ‘[title]’ and of another is ‘[title’ among other matters it notes [the applicant], municipal Jubo Dal [Official position 2] [made an announcement].

    oTranslated copy of a newspaper article from [Newspaper 3] dated [November 2011]. The title is ‘[title]’ among other matters referring to [the applicant] [making an announcement].

    oOriginal and translated copy of a newspaper article from [Newspaper 4] dated [November] 2012. The title is ‘[title]’ referring to the meeting to prepare for BNP [Official position] [Ms G]’s arrival and noted it was chaired by Upazilla JCD [Official position 1] [the applicant].

    oOriginal and translated copy of a newspaper article from [Newspaper 5] dated [November] 2012. The title is ‘[title]’ and refers to Upazilla JCD [Official position 1], [the applicant], presiding over the meeting to prepare the visit of [Ms G].

    oOriginal and translated copy of a newspaper article from [Newspaper 3] dated [November] 2012. The title is ‘[title]’ and refers to Upazilla JCD [Official position 1], [the applicant] presiding over the meeting to prepare the visit for [Ms G].

    oOriginal and translated copy from [Newspaper 7] dated [November] 2012 regarding the organisation of [a meeting]. It refers to the meeting being presided over by Upazilla JCD [Official position 1] [the applicant].

    ·Translated copy of an article titled, ‘Corruption Misgovernment Must Be Finished – Bangladesh of Democracy’.

    ·Photo of the applicant under the title ‘Bangladesh Nationalist Party – BNP, National Council – 2016 [Sub-Committee].’

    ·Discharge Certificate dated 6 February 2014 from [Hospital]. The document states that the applicant was under treatment in this hospital from [January] 2014 to [February] 2014 and he was suffering from physical assault.

    ·DFAT Country Report Bangladesh 22 August 2019.

    ·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.

14. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

    Is the applicant credible as to his claims?

    The applicant’s claims

15. In his protection visa application dated 6 December 2016 the first named applicant made the following claims:

    What do you think will happen to you if you return to that country(s)?

    I would either continue to live in hiding from Awami Gangsters or be killed by them. In particular, I think only three scenarios could happen to me if I return to Bangladesh. The first is I could indefinitely continue to live in hiding from being killed by the Awami Gangsters as I was up until I left Bangladesh, but this time with my wife and children (because I feel for the safety of my family after its appearance to me that the Awami Gangsters were relenting and threatening my wife and two infant children in my absence from them). The second is that I could be located, attacked and actually killed by the Awami Gangsters this time around. The third is that I could be located, arrested on false charges against made against me, imprisoned and then be killed by Awami gangsters whilst in police or prison custody. I am sure that the Awami Gangsters want nothing less than to kill me since they have been relentless in trying to locate me, even seriously assaulting me in 2014.

    Did you experience harm in that country(s)? Yes. Give details:

    I sustained a number of injuries from a physical assault by Awami Gangsters in February 2014 including:

    1.Trauma over my forehead and head in general:

    2.Trauma over different parts of my body

    3.Ecchymosis over one of my arms, forearm, thigh and leg

    4.Cut injury over my [Body part 1] (6cm x 1cm)

    5.Lacerated and depressed wound to his [Body part 2].

    Furthermore, I experienced severe vomiting and nausea due to the assault. These people harmed me in this way just because of my status as an official for two front wings of the Bangladesh Nationalist Party, the former ruling party of Bangladesh.

    Did you seek help within the country(s) after the harm? Yes. Give details:

    I was taken to [Hospital] in Dhaka, Bangladesh. I was admitted to the casualty ward of the hospital where he received the following help:

    1.4 stitches were given for my cut injury over my [Body part 1];

    2.Dressing for my cut; and

    3.Medication for the injuries prescribed and to be taken regularly as follows:

    a)Selfur (500 mg) to be taken for 14 days

    b)Fluclox (500 mg) to be taken for 14 days

    c)Rolac (10 mg) to be taken for 10 days.

    Did you move, or try to move, to another part of that country(s) to seek safety? Yes. Give details:

    After I was assaulted by the Awami Gangsters and subsequent to being discharged from Hospital as a result of my injuries, I was living away from his family in hiding from the Awami Gangsters until I was reunited with them when we immediately departed Bangladesh. During that time, I was residing at various places including places of relatives and friend. I was unable to remain in hiding indefinitely because I  feared for the safety of my family after it had become apparent to me that the Awami Gangsters were relenting and threatening my wife and two infant children in my absence from them.

16. As to whether he will be harmed or mistreated if he returns to Bangladesh, he claims he would either continue to live in hiding in fear of the Awami League gangsters or be killed by them. He claims there is a high chance that he could be located, attacked and actually killed by the Awami League gangsters this time around.

17. As to whether he can gain protection from the authorities, he claims the Awami League gangsters form part of the authorities, namely the police and the executive government branch. He claims it was the police who threatened, harassed and intimidated his wife and the authorities are complicit in the harm being inflicted on him.

18. He submits that he will be unable to relocate as he claims the Awami League gangsters have proven they can track people like him down if he relocates similar to his wife’s case when she tried to relocate, but they still managed to track her down. Also, he claims that because the Awami League gangsters form part of the authorities, namely the police, and because there are arrest warrants placed on him for fake charges made against him, he claims it would be hard for him to live freely without Awami Gangsters finding out where he has relocated to.

19. In his statement attached to his protection visa application the applicant claims he left Bangladesh in fear of his life and safety as well as the life and safety of his wife and two daughters. He claims this is because he had direct involvement in the politics of the country in his roles serving in two official capacities with the BNP. 

20. He claims that prior to leaving Bangladesh and during the incumbency of the BNP, he was [Official position 1] of the JCD [Location] Thana Committee in the district of Barisal for approximately 10 years. He claims he also served as [an Official position 2] of the JJD [Location] Thana Committee, also in Barisal. He claims before he served in these two roles, he was an active member and supporter of the BNP for six years, advocating and supporting the BNP in elections and on party political issues. He claims his total involvement with the BNP was for 16 years as both a member and an official. He claims he was actively involved in organising political processions, meetings and conferences for the BNP.

21. He claims that the current ruling party of Bangladesh, the Awami League came into power illegally by carrying out solo party elections in 2014. He claims members of the Awami League, many of whom serve in the police, military and other executive branches of the government target officials and leaders of the BNP with the aim of trying to eliminate the presence of the BNP as a viable political party. He claims these gangsters physically assault, intimidate, kidnap, threaten, torture and kill officials and leaders of the BNP and their families. He claims he and his family have been victims of these members or gangsters and such actions led him to leave Bangladesh.

22. He claims that [in] January 2014,[4] gangsters brutally assaulted him with the intent to kill him, leaving him wounded with injuries to his head and body. He claims he suffered severe injuries. He claims he knows they intended and still intend to kill him because after his assault they found out he survived and began to visit his home, threatening his wife and intimidating her to disclose his whereabouts. He claims the gangsters were not satisfied with injuring him and wanted him to be killed. He claims these gangsters form part of the police but others are ordinary citizens. He claims they constantly visited his wife and mentally intimidated her and threatened her and his children’s lives if she did not disclose his location or help them to track him down. He claims they would force their way into his house and carry out searches. He claims during this time he had absconded to many places in the country.

    [4] While it said [February] 2014 he clarified this as [January] 2014

1. He claims that as a result of the threats and visits to his family, his wife and children moved to his father-in-law’s house for safety because they were in fear of their lives. He claims the Awami League gangsters found out where his father-in-law lived and continued to visit his family there making threats and also carrying out searches of the house to find him.

2. He claims that for a long period of time, he was away from his family because of the Awami League gangsters. He claims they failed to find him so then they colluded with the police and made false criminal cases against him and issued warrants for his arrest to try and catch him. After a long time in hiding, he eventually managed to reunite with his wife and kids and immediately decided to travel to Melbourne, Australia as a visitor in order to leave Bangladesh and permanently relocate to another country. 

3. He claims he thought Australia was the best country to grant him protection because Australia has been granting protection to people who are persecuted due to their political opinion. He claims that at the time he had not decided to immediately apply for a protection visa to Australia because he wanted to consider his options to relocate to other countries as well. He claims he wanted to get out of Bangladesh as soon as possible and saw a visitor visa as the most effective way to do it. After residing in Australia, he decided he wants to live here to be as far away as possible from Bangladesh so the Awami League gangsters cannot find him and kill him.

4. He concludes that he left Bangladesh in fear of his life and safety as well as the life and safety of his wife and two children. He fears if they return the Awami League gangsters will kill him as well as his wife and children.

5. The second named applicant in her protection visa application and statement provided the same claims as the first named applicant.

6. At the Department interview held on 3 February 2017 the applicant repeated his claim to fear return on account of his involvement in the JCD, JJD and BNP. He said as he is [Official position 1] of the JCD [Local] the police and Awami League members want to kill him. He said he had been [Official position 1] of the [Location] JCD for 10 years and while in the post he was attacked [in] January 2014. He said he was attacked badly, including sustaining injuries to his forearm, skull, injuries to his hands and legs. He said he was left for dead and admitted to hospital. He said as a result he went into hiding. The second named applicant gave evidence of the attack [in] January 2014 by Awami League members.

7. On 23 February 2021 the applicant provided the following additional statutory declaration. He made the following submissions:

   I declare that I am [the applicant], father late: [name deleted] Village Post: [Location], Upazila: [Location], District: Barisal. All the documents I had submitted, such as the fact that I was the [Official position 1] of Chhatra Dal and the [Official position 2] of Juba Dal, the documents of involvement of Bangladesh Jatiyatabadi Chhatra Dal and Juba Dal and the arrest warrant issued by the court against me and the hospital certificate of hospitalization and various newspaper cuttings.

   I respect the decision of the Case Officer from the Department of Home Affairs. However, the Case Officer suspected that many documents in Bangladesh, such as membership of the organization, court orders, information reports and hospital certificates can be fraudulently collected. This was declared by the Case Officer without any investigation that my documents were false and untrue. For this reason, I would like to state that the Case Officer did not attempt to verify the authenticity of the documents. If the Case Officer had verified the documents, then he would have seen that the documents are genuine.

   I was a high-ranking leader. I was the [Official position 1] of the [Location] Upazila Chatra Dal and the [Official position 2] of the Juba Dal. Unfortunately, the Case Officer claimed that I was an inferior member, without verifying my political identity and party affiliation.

   I would like to inform the Honourable Tribunal Member, that I have used the same address for ten years as it is my physical address and the place of my grandfather, fathers' birth. I have spent my childhood, school, college at that place. But since I was attacked with the intention of killing, I have been fleeing to different places for a while to save my life.

   I would like to inform the Honourable Tribunal that I had a [business] for my livelihood. But when I was attacked with the intention of killing and when I was fleeing, my [business] was attacked by Awami League terrorists and the [business] was vandalized. Since then the manager has been running the [business]. The Honourable Tribunal is of course aware that it is not unrealistic to do any business without being physically present.

   The Awami League terrorists attacked me with the intention of killing me, wounded me and left me on the side of the road in a bloody state. I fled to India to save my life and after a few days I was forced to return because I found out that the Indian government finds Bangladeshis and sends them to jail than hands them over to the law enforcement agencies of Bangladesh. At that stage my money almost finished and I could not manage money from Bangladesh and so I was forced to return to Bangladesh at the risk of my life.

   I would like to inform the Honourable Tribunal that I was not financially well off, that's why I had to sell my [business] and house land in order to pay towards an agent and providing temporary payment to my elderly mother for her living expenses. Due to this I was delayed to leave Bangladesh and for that reasons I was forced to stay in Bangladesh for a few days at the risk of my life even I getting the visa.

   I would like to inform the Honourable Tribunal that there is no security in my life in Bangladesh. On 28th December 2019 another arrest warrant was issued against me. If I am found in Bangladesh, law enforcement and Awami League terrorists can kill me.

   In Bangladesh, I have no source of income that I can survive on, with my family and my two innocent children. Then, due to lack of money, the lives of my family and my two innocent children are in jeopardy

   My humble request to the Honourable Tribunal Member is to look at my situation in a positive manner and remit the application as my family and I will definitely be harmed if we are to return to Bangladesh.

8. On 24 February 2021 the applicants’ representative made the following submission with regard to the Department decision. He submits that the documents are genuine and there is nothing to question their authenticity except a broad generalisation as to the prevalence of document fraud. He submits that it is grossly unfair to place no weight on any of the documents on the basis of a generalisation as to the prevalence of document fraud in Bangladesh, particularly as there is no specific information which causes the authenticity of the documents to be brought into question. He questions why they are not verified before making such a broad assumption. He refers especially to the newspaper clippings to support the applicant’s involvement as claimed.

   ·He questions the delegate’s claim that the applicant is a low-ranking official of the BNP when he was the designated representative of the youth wing that supported the BNP. He submits that as the future of the BNP, such a group is open to persecution by the Awami League who would want to try and eliminate any present and future influence of the BNP.

   ·As to the applicant’s return from India the representative refutes the finding that as there is no country information providing BNP activists were arrested and returned to Bangladesh does not mean it was not occurring. He submits the applicant returned as he feared arrest by the Indian authorities and as a result, he would have been transferred into the custardy of the Indian authorities.

   ·As to the applicant only disclosing one address in Bangladesh prior to his departure, as he was moving from place to place, he placed only the one address, his home address in the application.

   ·As to the applicant owning a [business], the representative submits the applicant notes at the interview that he was not running the [business] rather he had a manager running it for him and therefore did not work at the [business] until he departed.

   ·As to the delay in departure, the representative notes that the applicant stated that he had to sell his house to pay the agent who helped him procure the visa. The representative also submits that the delegate was wrong in believing that his delay indicates he held no fear as the delay was very minor, just over a month and he had to sell his house and it is not true as claimed by the delegate that this shows he held no fear for his safety.

9. At the Tribunal hearing held on 29 March 2021 the applicant reiterated his claim to fear return on the basis of his political involvement and activities with the JCD, JJD and BNP. The Tribunal questioned him in detail regarding the difficulties he claimed he had faced and his claimed political involvement in Australia and Bangladesh. He outlined his political activities with the JJD and JCD and the difficulties he had faced in Bangladesh including being beaten until he was unconscious [in] January 2014 and living in hiding in Rangpur, Dinajpur and Rajshahi until his departure from Australia. He claimed he will be killed on return and referred to two arrest warrants being issued against him in 2016 and 2019.

10. He said he lived in his family home in [Location] full time from birth until January 2014 and ran a [business] in [Location]. He said while he was in hiding the [business] was run by his manager. He said the [business] and his home were sold in August 2016 to pay for his and his family’s travel to Australia and to provide some funds to his mother. He said his wife, children and mother moved from the family home in [Location] in 2015 due to threats from the Awami League seeking the whereabouts of the applicant. He referred to his wife and mother being threatened by the Awami League members seeking his whereabouts after he went into hiding. He also referred to his [business] being ransacked, and his manager being assaulted in June/July 2014 as they were looking for the applicant. He said the [business] was providing him and his family with an income while he was in hiding.

11. As to his involvement in the BNP Australia, he said he joined in December 2016 and he is an ordinary member. He said he attended the protest at [a Venue] in April 2018 when the PM Sheikh Hasina visited Australia. As to how often he attends the BNP meetings he said sometimes twice a year but it depends on when they are organised. He said he has not attended any in 2021. He said [Mr H] is [official] and [name deleted] the President. He said the only event he had attended was one in April 2018 when [Ms G] visited.

12. The Tribunal raised with him s 5J(6) and questioned whether he had attended the BNP meetings in Australia and the BNP social events solely for the purpose of strengthening his claim for protection. The applicant disputed this.

13. The Tribunal questioned whether he is a credible witness and outlined a number of concerns and inconsistencies in his evidence. Where relevant, these have been outlined below.

14. On 30 March 2021 the Tribunal sent the following request for information to the applicant:

    At the hearing you identified a newspaper article from [November] 2012 which included a photo of you with your name underneath. Could you please advise which newspaper article submitted that photo is in as the Tribunal is unable to locate that photo.

15. On 9 April 2021 the applicant provided a response to the Tribunal’s request with the following evidence:

    oHe resubmitted the original and translated copy from the [Newspaper 7] dated [November] 2012 regarding the organisation of a [meeting]. It refers to the meeting being presided over by Upazilla JCD [Official position 1] [the applicant]. He circled a person who he claimed was him in the photograph next to the article.

    oHe resubmitted the original and translated copy of a newspaper article from [Newspaper 5] dated [November] 2012. The title is ‘[title]’and refers to Upazilla JCD [Official position 1], [the applicant], presiding over the meeting to prepare the visit of [Ms G]. He circled a person who he claimed was him in the photograph next to the article. It is the same photograph as in the [Newspaper 7] referred to above although larger.

    Assessment of credibility of claims

16. Having sighted a copy of the applicants’ identity documents, and on the basis of the applicant’s evidence at hearing, the Tribunal accepts that the applicants are nationals of Bangladesh for the purposes of s 36(2)(a). For the purposes of s 36(2)(aa) the Tribunal accepts that Bangladesh is the receiving country.

17. This is a difficult case to assess as the applicant’s evidence was of concern in many instances, particularly relating to the difficulties he and his family faced in Bangladesh on account of his political activities and involvement in the JCD, JJD and as an active supporter of the BNP. The inconsistencies and concerns with his evidence outlined below lead the Tribunal to find neither the applicant, his wife, parents and employees ever faced the difficulties he claims including false cases being laid against him, being in hiding from 2014 until his departure in 2016 and his [business] being ransacked, and the manager of his [business] being threatened and beaten. These concerns in his evidence were raised by the Tribunal at hearing and are as follows:

    ·His inconsistent evidence as to where he went to hide between the Department and Tribunal undermines his claim he was in hiding after he was attacked in January 2014. To the Department at interview, he stated he had no permanent address in this period and lived in Chittagong, Barisal and Dhaka; however, when asked the same question at the Tribunal hearing he indicated he went to the North to Rangpur, Dinajpur and Rajshahi. He said he went to Dhaka on six to seven occasions from 2014 to 2016. He said he saw his wife in December 2014 as she travelled north to Dinajpur to see him. The Tribunal is of the view if the applicant fled into hiding he would be consistent as to where he went. When the concern was raised with him at hearing he said he never went to Barisal and did spend some time in Chittagong which the Tribunal does not accept as explaining the inconsistency.

    ·The applicants’ behaviour in departing almost six weeks after the visitor visas to travel to Australia were granted undermines the applicant’s claim he and his family faced any difficulties after January 2014 and the applicant was in hiding at the time of their departure. The Tribunal is of the view if the applicant was in hiding and his family were living elsewhere from their home at the time of the grant of the visas and they had been threatened, he, together with his family, would have left as soon as they were granted the visas to travel to Australia, not waited almost six weeks. In this regard the evidence indicates the applicants’ visitor visas to travel to Australia were granted on 9 August 2016, but they did not travel to Australia until 18 September 2016. In response the applicant said to the Department at interview he had to sell his house to pay for the agent who organises the visas but to the Tribunal he said he could not leave as he had to sell his [business] to pay the people who arranged for the visas. The Tribunal is of the view if the applicant and his family were at risk of harm to the extent they were in hiding at that time as claimed they would have departed sooner not waited to sell his home and/or [business].

    ·His travel to India and return to Bangladesh, where he claims to face harm, after three days in 2015, despite holding a 90-day visa to stay in India also undermines his claim he and his family continued to face the difficulties he claims and he was in hiding. His evidence was also that he did not seek protection in India. The Tribunal is of the view if the applicant went into hiding for the reasons he claims, his family were threatened in [Location], he faced the difficulties he claims after the assault in 2014 and he continued to be in fear of harm as were his family, at the time he travelled to India in 2015, he would have stayed longer than three days and researched or sought protection in India as he was able to do at UNHCR. When the concern was raised, he said he could not obtain work to support himself and had to take a risk and said he returned as he was fearful the Indian authorities would hand him to the Bangladeshi authorities as they rounded up BNP supporters. The Tribunal is of the view if he was in fear, faced the difficulties he claims and there were continuing threats against him he would not have returned after three days despite these concerns.

    ·His lack of travel to Nepal despite having a valid visa to travel there issued on 12 October 2014 undermines his claim he faced the difficulties he claims and was in hiding at that time as he feared being harmed. The Tribunal is of the view if he had faced the difficulties he claims after the assault, was in hiding and was in fear he would have travelled there for his safety to avoid the harm feared.

    ·His inconsistent evidence as to where he lived and worked in Bangladesh undermines his claim he was in hiding for the reasons he claims. At hearing the applicant claimed he lived in [Location], Barisal until he was attacked in January 2014 and then lived in hiding in the North of Bangladesh only visiting Dhaka on six to seven occasions. In contrast, as raised with him via s 424AA, in his visitor visa application dated 13 July 2016 he indicated his residential address as being in Dhaka. Documents submitted with his visitor visa application submitted 13 July 2016 refer to his present address being in Dhaka and his permanent address being in [Location]. In response the applicant said that this is because it was prepared by hs father-in-law and the agent and he had nothing to do with it.

    ·His inconsistent evidence as to his work also undermines his claim he was in hiding. At hearing he said he owned a [business] in his home area of [Location], Barisal but did not have much involvement after he was attacked in early 2014 and went into hiding. However, in his application for the protection visa he indicated he was the owner of the [Business name] at [Address] Dhaka from January 2008 to July 2016. As raised with him via s 424AA his visitor visa application dated 13 July 2016 also indicates that he owned and manages his own [business] [Business name] situated in Dhaka. Tax returns up to May 2016 submitted with the visitor visa application refer to the [business] being in Dhaka with the same address as that referred to in the protection visa application, as do submitted bank accounts and the applicant’s trade licence for this [business]. The visitor visa application dated 13 July 2016 notes the applicant is the sole owner of the [business]. As raised with him via s 424AA there is also evidence on [Social media] of a [business] with the same name in Dhaka. In response he claimed his father-in-law organised the visas, he did not know what was in the application and he was not living in Dhaka and his [business] was in [Location]. However, if that were the case the Tribunal questions why the [business] is referred to in the protection visa application he signed as to being in Dhaka, being at the same address as given in the visitor visa application.

    ·Further, he only claimed for the first time in his statutory declaration dated 23 February 2021 that his [business] was vandalised after his attack in 2014 and only claimed at the Tribunal hearing that his manager was beaten in this attack. He said at hearing in June or July 2014 his [business] was attacked as well and his manager was beaten. The Tribunal is of the view if his [business] was attacked and the manager beaten because of his political profile he would have claimed this in his application for the visa.

    ·His behaviour in remaining in Bangladesh and only applying for a visitor visa in July 2016, after two-and-a-half years of being in hiding undermines the claim he was in hiding for the reasons he claims.

1. The Tribunal was on account of its concerns above and the applicant’s inconsistent evidence, as outlined above, initially concerned as to whether he was ever involved in JCD, JJD and BNP politics in Bangladesh in the manner claimed.

2. However, based on the applicant’s evidence at hearing including his detailed understanding of the BNP, BNP politics in Bangladesh including at recent elections, Barisal politics consistent with independent information, his consistent evidence as to his political role with the JCD and JJD, as well as photographic evidence of the applicant in front of a JCD flag, photographs of the applicant with numerous BNP leaders and numerous newspaper reports referring to him in the leadership roles with the JCD and JJD, and particularly a number of newspaper articles in hard copy referring to and including a photo of the applicant named as [Official position 2] of the JJD, the Tribunal accepts the following:

   ·The applicant joined the BNP student wing, JCD, [Location] Thana Unit while at College and became [Official position 1] in 2002/2003. As to his length of time as [Official position 1] of the JCD [Location] Thana, in his statement to the Department he referred to being [Official position 1] for approximately 10 years, as did the supporting documentation, however, at hearing he indicated he held the role even after he came to Australia until there were new elections. When questioned he said he was there until 2016 but in hiding from 2014 and there were no elections for the [Official position 1] of the [Location] Thani until 2021 so he was there, but in name only. While the applicant’s inconsistent evidence in this regard is of concern and indicates his willingness to exaggerate and not always tell the truth, based on the supporting documentary evidence it accepts he was active in this role from around 2002/2003 until 2013, prior to the election in January 2014.

   ·The applicant held the position of [Official position 2] of the BNP Youth organisation, JJD [Location] Thana Committee from 2011 until 2016 although was not active after 2014. Similar to the above, while the applicant has been inconsistent as to the length of time in this role notwithstanding it accepts, he was active in this role in the above period.

   ·In these roles he was actively involved in organising political processions, meetings and conferences for the BNP, JJD and JCD as well as meeting with BNP leaders. It accepts he was a local BNP leader in Barisal and activist and was well known in his local area as being a leader, activist and supporter of the BNP, particularly its associated organisations, as highlighted in the newspaper reports.

   ·He has been involved in the BNP Australia since his arrival as an ordinary member as per his evidence at hearing and protested against the Awami League when Prime Minister Sheikh Hasina, leader of the Awami League, visited Australia in 2018. It accepts he attends BNP events approximately two times per year when meetings are held. It accepts due to COVID-19 in 2020/2021 political activities were limited.

3. In regard to the weight placed on the submitted documents, the Tribunal notes that in a previous matter it attempted recently on a number of occasions to seek assistance from the Australian government overseas post in Bangladesh via DFAT to verify the authenticity of the many documents from Bangladesh attesting to another applicant’s political activity, but they were unable to provide any clarity after a significant amount of time. While the Tribunal acknowledges that the independent evidence indicates that document fraud in Bangladesh is prevalent, it has difficulty making a finding that no weight is placed on the submitted documents, particularly the hard copy newspaper reports and numerous photographs of the applicant evidencing his roles in these organisations and with senior BNP leaders. While it has found much of the applicant’s evidence lacks credibility it is not prepared to make a finding placing no weight on the supporting documentary evidence as to his political involvement.

4. Therefore, while the Tribunal has concerns as to aspects of the applicant’s claims, particularly as to his limited active involvement in Bangladesh politics after 2014 and in Australia, the Tribunal has decided to give the applicant the benefit of the doubt based on his other evidence as to his political practice and belief.

5. The Tribunal therefore accepts that based on his past political activity for many years in Bangladesh and in Australia that were he to return he will continue to be a supporter and would be or would be prevented due to a fear of harm of being an activist attending BNP demonstrations and meetings, as he has in the past.

6. The Tribunal was undecided whether he was attacked in January 2014 on his way to protest against the outcome of the national election held on 5 January 2014. However, as he has supporting documentation, he has consistently provided evidence as to this attack at the Department and Tribunal, his wife corroborated his evidence at the Department interview and attacks on opposition leaders around the time of the election is consistent with independent information, the Tribunal accepts he was assaulted in January 2014 by Awami League members as a supporter and local leader of the JJD and JCD in [Location] on the way to a protest.

7. In this regard, DFAT notes that most inter-party violence ‘occurs during periods of heightened political unrest, particularly during national elections and hartals (strikes).[5] According to the ICG and HRW, the 2014 elections were, at that time the most violent in Bangladesh’s history.[6] A European Parliament resolution of 16 January 2014 condemned the ‘killings and widespread violence’ and expressed ‘serious concern at the paralysis of everyday life in Bangladesh’ due to the strikes, blockades and confrontation between the two main parties.[7] DFAT has assessed that between 200 and 300 people were killed in clashes between political parties, and between political party supporters and the authorities in the 2014 elections.[8]

   [5] Department of Foreign Affairs and Trade (DFAT) 2016, DFAT Country Information Report – Bangladesh, 5 July, p.15 <CIS38A80121206>

   [6] International Crisis Group 2015, Mapping Bangladesh’s Political Crisis, 9 February, p.6 < Accessed 25 February 2015 <CISEC96CF1145>; Human Rights Watch 2014, Democracy in the crossfire: Opposition violence and Government abuses in the 2014 pre- and post- election period in Bangladesh, 29 April, p.1

   [7] European Parliament 2014, Recent elections in Bangladesh: European Parliament resolution of 16 January 2014 on recent elections in Bangladesh, 16 January, p.2 < Accessed 4 March 2015 <CIS2F827D92218>

   [8] Department of Foreign Affairs and Trade (DFAT) 2014, DFAT Country Report: Bangladesh, 20 October, p. 5

8. Notwithstanding its concerns, the Tribunal has therefore given the applicant the benefit of the doubt and accepts that he was assaulted on his way to a protest against the government [in] January 2014 and that he sustained significant injuries and was transferred to Dhaka where he was in hospital recovering for 27 days.

9. It does not accept, for the reasons above, however, either he or his family faced any other of the difficulties he claims after this time until their departure in 2016 as he ceased being active or a leader from 2014 with the JJD and JCD and only had limited involvement with the BNP and its associated organisations. The Tribunal is of the view this is because he was working living in Dhaka, as per the Dhaka residential address in his visitor visa and the Dhaka address of his [business] in his visitor visa and protection visa application, Dhaka being eight hours from his home area where he held these leadership roles from 2014.

10. As a consequence, the Tribunal finds the following with regard to the applicant’s claims:

    ·He held well-publicised leadership roles with the JCD and JJD in his local area of [Location], Barisal up until before the election in January 2014. In these roles he was active promoting the BNP, attending protests and meetings including with Senior BNP leaders.

    ·He was attacked by Awami League members [in] January 2014 on the way to protest against the outcome and fraud of the 5 January 2014 election.

    ·Following this he moved to Dhaka with his family, ran his [business] in Dhaka and had limited involvement in BNP politics. Neither he nor his family faced any further difficulties as claimed due to his limited involvement in politics in Dhaka and elsewhere from 2014 until his departure in 2016.

    ·He is a genuine in his political belief being opposed to the Government.

    ·From 2014 he did not express his political opinion publicly in Bangladesh. It accepts this is most likely due to a fear of harm following the assault.

11. On the evidence before it and for the reasons above the Tribunal does not accept the second, third and fourth applicants ever faced any difficulties including being threatened on account of the applicant’s political opinion, support and activisms with the BNP, JJD or JCD.

    Does the applicant have a well-founded fear of persecution in relation to Bangladesh and meet the refugee protection provisions of the Act?

12. Having accepted that the applicant is genuine as to his political belief being in opposition to the current government of Bangladesh, he has a profile as a leader of the JJD and JCD in his local area, was very active in the past and was assaulted due to his activism, did not continue to express his opinion likely because of a fear of harm following the assult, the Tribunal has considered whether there is a real chance that the applicant will suffer serious harm on his return.

13. Under s 5J(1), a person has a ‘well-founded fear of persecution’ if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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 is taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA.

14. In determining whether a person has a ‘well-founded fear of persecution’ s 5J(1)(a) contains a subjective requirement that an applicant, in fact, holds a fear of being persecuted. On the basis of his evidence the Tribunal accepts that the applicant has a genuine fear of being persecuted in Bangladesh because of his political opinion, being opposed to the government of Bangladesh and Awami League. Further the Tribunal finds that his conduct in Australia, joining the BNP Australia and JJD, protesting and attending meetings was engaged in otherwise than for the purpose of strengthening his claim to be a refugee as he was involved in politics and protesting against the Awami League prior to his departure for Australia. Therefore, that conduct has not been disregarded: s 5J(6). The Tribunal finds that the applicant does have the subjective fear of being harmed for reasons of his political opinion as contemplated in s 5J(1)(a) of the Act.

15. Further, s 5J(1)(b) imposes an objective standard that there be a real chance the applicant will be persecuted if returned to his or her receiving country. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. However, a person can have a well-founded fear of persecution even if the possibility of the persecution occurring is well below 50 per cent.[9] Section 5J(4) requires that, for a fear to be well-founded, one or more of the reasons in s 5J(1)(a) must be the essential and significant reason for the persecution; it must involve serious harm and must involve systematic and discriminatory conduct.

    [9] Chan Yee Kin v MIEA (1989) 169 CLR 379

16. As to the treatment of BNP supporters and activists in Bangladesh, despite its continued political dominance, the ruling Awami League government and its supporters have continued to supress critics and BNP leaders and activists.[10] The evidence indicates that violence intensifies around periods of heightened political tension. Most AL-BNP violence occurs during periods of heightened political unrest such as elections, strikes, blockades[11] and local-level elections.[12]

    [10] ‘World Report 2020 Events of 2019: Bangladesh’, Human Rights Watch, 14 January 2020 available at 20200424153542 

    [11] ‘Bangladesh - Country Information Request CI161130110919945 -Political Violence’, Department  of Foreign Affairs and Trade (Australia), 6 February 2017, CXC9040661299; ‘DFAT Country  Information Report Bangladesh’, Department of Foreign Affairs and Trade, 22 August 2019, paras 3.92, p.29, 20190822132438

    [12] ‘Annual Human Rights Report 2016’, Odhikar, 1 January 2017, pp.7–8, CISEDB50AD44; ‘DFAT  Country Information Report Bangladesh’, Department of Foreign Affairs and Trade, 2 February 2018, para 3.60, p.20, CIS7B83941169

17. The evidence also indicates the Awami League uses security forces to target high profile opponents and political activists using them to restrict the activities of opposition parties and gather information often through torture of members of opposition political parties.[13] There is evidence of mass arrests of opposition members which is used as a tool of political repression. Mass arrests, in which police sweeps detain thousands of opposition activists, members and supporters, including BNP, are not uncommon, and appear to be used as tools of intimidation against political opposition groups.[14] Arrests often occur in the context of demonstrations.[15] In 2019, members of the BNP party reported arbitrary arrests in connection with planned and approved political rallies and demonstrations. [16] Opposition parties alleged that the government used mass arrests to harass them in the lead up to the elections.[17] More than 4,500 BNP members were arrested on ‘trumped-up charges’.[18]

    [13] ‘2020 Country Reports on Human Rights Practices: Bangladesh’, US Department of State, 30 March 2021, Sect.1.c, p.5, 20210331145218; ‘DFAT Country Information Report Bangladesh’, Department of Foreign Affairs and Trade, 22 August 2019, paras 3.66, 3.67, p.25, 20190822132438; ‘Human Rights in Asia-Pacific: Review of 2019’, Amnesty International, 29 January 2020, p.13, 20200130115738

    [14] ‘Bangladesh: Stop Reprisals Against Victims, Activists’, Human Rights Watch (HRW), 7 April 2022, 20220411160727; ‘UN: Ban Abusive Bangladesh Unit from Peacekeeping’, Human Rights Watch (HRW), 20 January 2022, 20220208111845

    [15] Department of Foreign Affairs and Trade, 22 August 2019, paras 3.80, 3.84, p.27,  20190822132438

    [16] ‘Country Reports on Human Rights Practices for 2019 – Bangladesh’, United States Department of State, 11 March 2020, Sect.1.e, p.10, 20200312085617

    [17] ‘Human Rights Monitoring Report on Bangladesh – 1–31 October 2018’, Odhikar, 2 November  2018, p.8, CIS7B839411036

    [18] ‘Cycle of Fear Combating Impunity for Torture and Strengthening the Rule of Law in Bangladesh’, World Organisation Against Torture (OMCT) and Odhikar, 25 July 2019, p.20, 20190911123050; ‘2021 Country Reports on Human Rights Practices: Bangladesh’, US Department of State,12 April 2022, Sect.7a, pp.62–63, 20220413112829

18. In its most recent 2019 report on Bangladesh published on 22 August 2019, the Australian Department of Foreign Affairs and Trade (DFAT) assessed that, under the current Awami League government, senior members of opposition political parties (particularly the BNP) face a high risk of politically motivated arrest, legal charges, and travel bans. 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. This risk is elevated around times of heightened political tension, including elections. 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, although this may vary according to location and timing. DFAT assesses that allegations of violence against BNP figures are credible, and that high-profile figures are more likely to be targeted by charges that may be politically motivated. DFAT assesses that any BNP member who actively opposes the Awami League government may be targeted for criminal charges, especially if they are involved in violent protests.[19]

    [19] ‘DFAT Country Information Report Bangladesh (22 August 2019)’, Australian Department of Foreign Affairs and Trade (DFAT), 22 August 2019, pp.25–27, 20190822132438 

19. The Crocodiles are Closing in: Everyday Life for a Local BNP leader is the title of a recent 2021 academic paper by David Jackman which provides a unique examination of the political life of a local BNP Union Prashad Member leader in Dhaka. In it, the BNP member describes the increasing pressure for BNP members over the last decade due to the politicisation of the police and incentives provided to them to arrest members of the BNP. He describes how surveillance of his movements by the police has become relentless. The paper also reveals the complexity of local politics where alliances and rivalries are tangled in unexpected ways. This includes alliances between BNP mayors and Awami League MPs against their intra-party rivals, and greater conflict within parties. However, Jackman notes the challenge now is that the intense politicisation of the police makes it more lucrative for police to undermine these past local cross-party ties, and it is risky for political leaders to attempt to sustain them. For example, the local BNP member interviewed, said he would previously socialise with Awami League politicians but, today, he is distant from them. He explained that even his own supporters have to pretend to support the ruling party.[20]

    [20] D. Jackman, ‘The Crocodiles are closing in: Everyday Life for a Local BNP Leader’, in A.E Ruud and M. Hasan (eds), Masks of Authoritarianism: Hegemony, Power and Public Life in Bangladesh (eBook), Palgrave MacMillan, 2021, pp. 93–104

20. Bertelsmann Stiftung reports that the government frequently denies permission to hold assemblies, rallies, and demonstrations organised by political parties, civic groups or students, using the excuse of public order and peace, whereas activists for the Awami League party are allowed to do so without permission. It notes the procedures for providing these permissions are opaque and completely under the government’s control.[21] Odhikar has reported that the government and Awami League leaders and activists have continued to obstruct and attack the rallies of the BNP.[22]

    [21] ‘BTI 2022 Country Report: Bangladesh’, Bertelsmann Stiftung, February 2022, p.8

    [22] ‘Human Rights Report 2021 – Bangladesh’, Odhikar, 31 January 2022, pp.30–31

21. On the basis of the applicant’s evidence and the independent evidence outlined above the Tribunal finds that the applicant’s political opinion would be the essential and significant reason for any persecution: s 5J(4)(a). For the purposes of s 5J(4)(b) of the Act, s 5J(5) provides that the following types of harm are in the nature of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment; (c) significant physical ill-treatment; (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. The Tribunal accepts that the applicant will suffer in the form of physical harm from the government, Awami League members and police were he to express his political opinion by protesting, which the Tribunal accepts he has done in the past and may in the future or be prevented from doing so due to a fear of harm.