1703573 (Refugee)

[2021] AATA 2247

1703573 (Refugee) [2021] AATA 2247 (6 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703573

COUNTRY OF REFERENCE:                   Bangladesh

MEMBER:Gabrielle Cullen

DATE:6 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 May 2021 at 10:55am

CATCHWORDS
REFUGEE – protection visa – Bangladesh – politicial opinion – Bangladesh National Party (BNP) – Jatiyatabadi Chhatra Dal (JCD) – Rapid Action Battalion (RAB) – Awami League – applicant beaten and business ransacked – vague and inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v The Commonwealth of Australia (1999) 162 ALR 1
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167

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 dependant.

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 27 February 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, a citizen of Bangladesh, claims to fear harm on return from members of the Awami League, the police, the Rapid Action Battalion (RAB) and government on account of his involvement with the Jatiyatabadi Chhatra Dal (JCD), and Bangladesh National Party (BNP) in Bangladesh and Australia.

3. The applicant arrived in Australia [in] December 2016 on a Subclass 600 Visitor visa, granted on 2 November 2016 and valid to [a date in] January 2017.[1] He applied for a protection visa on 15 December 2016.

   [1] As outlined in the Department decision attached to the Application for Review.

4. On 1 February 2017 the 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.

5. The delegate refused to grant the visa on 27 February 2017 on the basis that while the applicant may have a cursory interest in the BNP, he never held any position with the BNP or faced harm prior to leaving Bangladesh. She did not accept that his reasons for travel to [Country 1] were as claimed.

6. The applicant applied for review of the Department decision on 1 March 2017 and attached the decision of the Department.

7. The applicant appeared before the Tribunal on 15 March 2021 to give evidence and present arguments. The applicant was assisted with an interpreter in the Bengali and English languages. The applicant’s representative attended the hearing. [Mr A] gave evidence as the applicant’s witness via telephone from Bangladesh.

8. At the request of the applicant, the Tribunal also attempted on 2 occasions to contact Mr Abdul Salam Azad in Bangladesh and on 2 occasions to contact [Mr B] in Australia, but they did not answer their phone on either occasion. The applicant and his representaitve indicated that the Tribunal did not need to continue to try and contact these witnesses to give evidence. The Tribunal did not attempt to further contact these witnesses during or after the hearing as it is of the view that it had made all reasonable attempts to speak to them and as the applicant indicated he did not wish the Tribunal to continue to attempt to contact these witnesses.

9. The applicant was given until 25 March 2021 to respond in writing to any of the s 424AA matters raised and to provide any further submissions he or his representaitve wished to make. At the request of the representative this was extended to 9 April 2021.

10. The issues to be 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?

    ·Does the applicant meet the protection obligations under the complementary protection provisions of the Act?

    CRITERIA FOR A PROTECTION VISA

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The Tribunal has before it the Department’s file relating to the applicant. 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 applicant’s protection visa application of 15 December 2016, the attached statement, identity documents and work and education certificates confirming he is a rural [Occupation 1] and [Occupation 2].

    ·Oral evidence provided at the Department interview held on 1 February 2017 and Tribunal hearing held on 15 March 2021, including oral evidence provided by [Mr A] via telephone from Bangladesh.

    ·Untranslated BNP letter from [Mr A] submitted to the Department dated 17 December 2016. This was interpreted at the Tribunal hearing with the agreement of the applicant’s representaitve and was described as stating the following:

    He joined BNP in 2000 in [Upazila 1] [District 1] and has been actively involved. He was engaged as [Secretary 1] in [Branch 1]. Other than politics, he was a [Occupation 1]. He is honest and hard-working political worker and had been victim of threat by local cadre of the opponents. He was attacked by the opponent cadres. Thank God his life was saved. As far as I know, he had some false cases framed against him. [The applicant] was compelled under painful circumstances to leave the country. At the moment in Bangladesh kidnapping, secret killings and other heinous activities are common. Human Rights are being violated off and on, the opposition workers are subject to inhuman torture. Many of the BNP leaders have pending cases against them which are baseless and false. Many of the BNP workers are now in hiding. Under the circumstances stated above, there is no way that, it is not safe in any way for [the applicant] to go back to the country. If he returns, there is risk of him being arrested or getting killed. I wish him all the best.

    ·Updated statutory declaration by the applicant dated 26 February 2021.

    ·Further statutory declaration of the applicant dated 9 April 2021 in response to the s 424AA matters and concerns raised.

    ·Written submission from the applicant’s representative dated 8 March 2021 with reference to the following attached country information:

    oAnnual Human Rights Report 2019, Bangladesh by ODHIKAR dated 8 February 2020.

    oUS Department of State, Country Report on Human Rights Practices 2019 – Bangladesh.

    oAsian Human Rights Commission, ‘Bangladesh: Government must end torture and fully implement recommendations made by the UN Committee against Torture’ dated 25 June 2020.

    oAsian Human Rights Commission, ‘Bangladesh: Arbitrary Detention used as a complementary tool for the unelected government and a coercive law-enforcement system’ by Asian Human Rights Commission dated 11 September 2020.

    oAsian Human Rights Commission, ‘Bangladesh: Stop Intimidating Activists, Victims’ Families’ dated 24 October 2020.

    oODHIKAR, ‘Three-month Human Rights Monitoring Report on Bangladesh Reporting Period: July-September 2020’ dated 9 October 2020.

    oODHIKAR, Annual Human Rights Report 2020 Bangladesh dated 25 January 2021.

    oHuman Rights Watch, World Report 2021 – Bangladesh.

    oDaily Star, ‘BCL attack on JCD an ominous sign for politics: Fakhrul’ dated 23 September 2019.

    oNew Age, ‘1,526 killed, 423 disappeared in 10 years: BNP’ dated 12 December 2019.

    oObserver Correspondent, ‘Jubo League attacks BNP men in Satkhira; 20 injured’ dated 21 June 2020.

    oFinancial Express, ‘Political violence claims 25 lives in first eight months: ASK’ dated 22 September 2020.

    oNew Age, ‘13 cases filed against 500 BNP people’ dated 14 November 2020.

    ·Photos of the applicant involved in a political protest outside in Australians against the visit of the Awami League leader Sheikh Hasina; the posters refer to her as Lady Hitler Hasina.

    ·Receipt of membership fee paid to Australian BNP by the applicant dated 1 January 2017.

    ·Medical/Injury report dated 10 April 2010 from [Hospital 1], [District 1] noting the applicant has a swelling of one inch on his right little thumb caused by a blunt weapon and that a fracture was found on the interphalangeal area.

    ·Letter from [Mr B], [Secretary 2] of the BNP Australia dated 18 February 2021 to certify the applicant is personally known to him since January 2017 and that the applicant is working as executive member of BNP Australia. He indicates the applicant has participated in the general meeting of BNP at the end of 2017, 2018 and 2019, the protest against the Prime Minister Sheikh Hasina on her visit to Sydney on 27 and 28 April 2018, the Soldier Revolution and Peace Day celebrations on 7 November 2017, 2018 and 2019; victory day celebration on 16 December 2017, 2018 and 2019, rally and protest against illegal election in Bangladesh on 5 January 2018 and 2019, itfar and Dowa Mafhfil for release of BNP Chairperson and Former PM Begum Khaleda Zia on 1 June 2019 and anniversary of the founding of BNP in September 2017, 2018, 2019 and 2020.

    ·Letter from Advocate Abdus Salam Azad, Assistant Organising Secretary, Central Committee BNP Bangladesh dated 2 March 2021 indicating the applicant was Assistant General Secretary of the BNP at [College 1], [Secretary 1] of [Branch 1] BNP. He submitted that he is on the list of harassment of ruling party members and the police, and that the ruling party members have threatened him and his family. He noted the applicant was attacked by Awami League goons on 10 April 2010 and on 10 January 2014. He claims he advised the applicant to leave the country or be arrested by the RAB or be killed in the name of crossfire. He notes the applicant continues to contact them and he should not return to Bangladesh.

    ·Letter from [Mr A], President, [Sub District 1] BNP dated 2 March 2021 indicating the applicant was initially involved with the student wing of the BNP in [Upazila 1], then became [Secretary 1] of [Branch 1] BNP. He claims that the applicant in his role as a rural [Occupation 1] was able to encourage people to support the BNP. He claims he is aware he was targeted by Awami League goons because of his political association with the BNP and perception he would become a leader in the future. He notes he was attacked on 10 April 2010 and 10 January 2014 and the BNP leaders advised him to leave the country. He discusses the difficult situation faced by leaders and workers in the BNP.

    ·Letter from [Mr C], Chairman, BNP [Branch 1], [District 1] dated 28 February 2021 indicating the applicant is a BNP activist and engaged in promoting the ideologies of the BNP. He notes he is aware the applicant was Assistant General Secretary of the student wing at College and that in 2000 he became [Secretary 1] of [Branch 1] BNP. He refers to being aware the applicant was attacked in 2010 and 2014 and that he left Bangladesh in 2016. He notes that the applicant continues to be in contact with BNP leaders and that if he returns to Bangladesh, he will face torture, detention, and arrest.

    ·Department of Foreign Affairs and Trade (DFAT), DFAT Country Report Bangladesh 22 August 2019.

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

13. 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

14. In a statement attached to his protection visa application dated 15 December 2016, the applicant claims he fears being killed by Awami League goons, the RAB and the Bangladeshi police due to his involvement in BNP politics and activism for the party. He claims he is a rural [Occupation 1] and was [Secretary 1] for his local BNP in [Upazila 1].

15. He claims his father was also a dedicated BNP leader of [Upazila 1] and was involved in the BNP from the beginning of the BNP political party. In this regard he claims that on 31 May 1981 when he arrived home from school, he saw his father was addressing people that gathered to mourn President Zia’s death. His father encouraged people to perform their duties to complete the unfinished works of President Zia.

16. He claims that from 31 May 1981 he was very interested to join BNP politics and when admitted to [College 2] he became involved in JCD politics, becoming organising secretary of the JCD while he was an HSC student at the college.

17. He claims after completing his HSC, he was admitted to [College 3] for a Bachelor [degree]. At that time, he stayed in the college hostel and became Assistant General Secretary of JCD. Whilst completing his studies he became good friends with [Mr D], who was President of the [District 1] BNP.

18. He claims that when the BNP lost the national elections held in December 2008, the Awami League goons started to trouble the BNP politicians and activists in his area. He claims he has experienced humiliation, attacks, and demolition of his business by Awami League criminals since December 2008. He claims that Sheikh Hasina wanted to build an international airport commencing in 2010 on agricultural land of the Adialkhah, Munshiganj so the government forcefully acquired land from farmers and the applicant claims he along with others petitioned against Hasina’s plans. He claims that Awami League goons were angry with his petitioning and after vigorous protests the government did not proceed with the plans. He claims that the Awami League was furious with his active protests and wanted to attack him in retaliation. He claims they teased him and misbehaved when they found him. He claims he tolerated humiliation and verbal abuse from the Awami League goons and he did not make complaints against the goons to the police because he knew the police would take no action as he was a BNP person.

19. He claims that since 5 January 2014, brutalities by the Awami League criminals increased against him and it was risky for him to live in Bangladesh because he was unable to move and do his business freely. He claims the Awami League criminals visited his home several times to kidnap him after the 2014 elections, but he fled and hid elsewhere in [District 1].

20. He claims he tried to flee to escape to [Country 2] in 2016, but thought it was risky because he was on the police wanted list so if they arrested him, they would kill him. He claims he did not go to [Country 2] despite having [a Country 2] visa.

21. In August 2016 he attempted to escape to Australia using a travel agent. He was told by the agent that an Australian visa will be arranged for him from [Country 1]. He claims that [in] August 2016 the agent brought him to [Country 1] but the agent failed to arrange an Australian visa for him, so he returned to Bangladesh [later in] August 2016. He then asked a new agent to arrange a visa for him for western countries. He claims he wanted to escape to save his life from Awami League criminals.

22. He claims his life is unsafe and insecure as long as the Awami League are in power in Bangladesh due to his involvement with the BNP. He claims the Awami League has killed thousands of BNP leaders and students since 2008 and they continue to do so. He claims the Awami League government falsely fabricate criminal cases against BNP leaders and activists to lock them up in detention. He claims the Awami League kidnap BNP leaders and kill them later and hide the bodies. He claims the Awami League continue to kill BNP leaders and activists irrespective of their profiles. He claims that more than 50,000 BNP leaders and workers are still in detention due to false cases against them. He claims that if the Awami League goons find him, they will kill him instantly. If the police arrest him, he claims they will kill him by crossfire.

23. At the Department interview held on 3 February 2017 the applicant repeated his claim to fear the return from the Awami League on account of his involvement in the JCD and BNP. He referred to his travel to [Country 1] in August 2016 but said he returned home as there was no boat or trawler to Australia. He also said while he had a visa to travel to [Country 2] valid from [October] 2016 to [April] 2017 he did not travel there as he was fearful due to the border skirmishes in [region] with [Country 3]. When asked as to the notation in his passport he said that referred to going to [Country 4]. He said the passport he travelled to Australia on was the first passport he had ever held.

24. As to the difficulties he faced he referred to false cases being charged against him as he protested against the 2014 election and told people not to cast their vote and in 2010 as he protested against the building by the Awami League government of an airport in his area. When asked as to these false cases he then said they threatened him and tried to kidnap him. He said the Rapid Action Battalion were looking for him throughout the country and trying to murder him in secret. When asked as to whether he faced any particular incidents of harm in Bangladesh he said after the BNP lost the election the Awami League took action against him and said in 2010 when he protested against the airport they worked against him, attacked his business, threatened to kill him and made false cases against him. When the delegate raised with him that his evidence appears vague as to how he was harmed in Bangladesh, he said it was in 2010 and then said he thought it was around 20 December 2010 that he was protesting against the decision to build an airport and the Awami League threatened him then tried to kidnap him. He said he was returning from his [shop] at 8pm, which is next to his [workplace], and 10 people who were Awami League cadres tried to kidnap him but he ran away. He said he did not know any of them but knew they were from the Awami League as since 2008 the Awami League had been making his life difficult. When asked if anything further happened he said he tried to leave Bangladesh.

25. He said he fled Bangladesh to Australia as he was politically harassed in Bangladesh. He said when the BNP lost the election in 2008 he could not do business as the Awami League attacked his business and the police force were looking for him so to save his life he fled to Australia.

26. He provided evidence consistent with his statement as to his [Secretary 1] roles with the JCD and BNP in Bangladesh. He said from 2000 he was [Secretary 1] for the BNP in [Branch 1]. When asked what his role entailed he said it was to ensure the free health treatment to the poor people and to spread the light of education in the society. He said the aim was to ensure no one dies without proper treatment. When asked for more evidence as to his role he provided similar evidence again.

27. As to his family, he said his wife and children continue to live in his hometown in the family home and that they live on one floor, while his brothers and mother live on another floor. When asked how they are he said they are good.

28. He said he worked as [an Occupation 1] from 1994 to 20 November 2016. He confirmed he only stopped working in the business shortly before he came to Australia. He said he was the only [Occupation 1] in the [workplace] and he worked from 9am to 1pm and 4pm to 9pm. He said he would walk 1km from his family home to his [workplace]. He said he also owned a [shop] from 1994 to 2016 next to his [workplace].

1. The delegate questioned the truth of the applicant’s claims and raised a number of concerns in his evidence.

2. When asked if there is anything he would like to say before the interview concluded, he responded that what he has said is true, his life is at risk and that is why he has applied for protection in Australia. He said he will be at risk for a long time until the BNP comes into power. He said his life will be at risk if he returns to Bangladesh and he will not have safety. When asked at the end of the interview whether he had put forward all information in relation to his protection visa claims, he responded: ‘I have given you everything I have’. He responded in the negative when it was noted that any additional information provided to the Department before a decision is made will be considered.

3. The applicant provided to the Tribunal the following additional statutory declaration dated on 26 February 2021:

   1.I provide following statement in support of my review application for a protection visa.

   2.I note that there are some missing information in my original application and not reflecting all of my claims and information. Though, I had an agent, I could not receive proper assistance from him. For example, the name of the Bangladesh Jatiotabadi Chatra Dal was wrongly spelled as Sattradal. It one of the examples of poor assistance I received. He in fact did not attend my interview as well. The following are some of the errors in my application and statement.

   ·     The statement at para 9-10 are not correct. Please see the correct details and information in my current statement.

   ·     The details related to my education also some mistakes.

   3.I submit that there are compelling reasons in my case for the Tribunal to exercise its discretion to consider my claims and information. I also request the Tribunal not to draw any adverse inference for the failure to provide complete information regarding my protection claims.

   4.I was born on [date] in Munshiganj in Bangladesh.

   5.I have [number] brothers and [number] sisters.

   6.I am married and have [specified children].

   7.I joined [named] Government Primary School in [year] for my primary education. In [year] I joined [named] High School for my further education. In [year] I joined [College 2] and after completing my SSC there I joined Government [College 3] in [District 1] in [year] and completed my [degree]. In [year], I have undertaken a course called [Occupation 1] course conducted by [College 4] in [location] and successfully completed it in 1992. In addition to that, I have also completed a course in [Occupation 2] in [College 5].

   8.After I completed my [Occupation 1] Training course in 1992, I started working as a [Occupation 1]. In 1998, I started my [shop] called [name] and started selling [goods] as well. It was a successful [Occupation 1] service and [Occupation 2] business career I had in Bangladesh.

   9.In late 1979 General Zia Ur Rahman introduced Village head system, my father who was attracted by Late General Zia Ur Rahman's principles and ideologies joined the Bangladesh Nationalist Party and became an elected Member of [Ward 1]. According to the people, my father was so popular in the region and close to BNP founding President Zia ur Rahman. My father served as the village member (Ward) from [year] to [year] for more than a decade. My father also served as [Secretary 2] of the [Branch 1] BNP. As a result, my father's active well-known profile and close connections with the BNP leadership, we are considered as well-known family close association with the BNP. After 1999, he reduced his political involvement and became a financial donor to the BNP. I still remember though I was only [age] years old when General Zia Ur Rehman was killed and my father made a very thought-provoking speech for the BNP activists who gathered at our home to discuss.

   10.Due to my family's role and profile with the BNP's political activities, BNP leaders and activists used to gather in our place to discuss about politics and how to improve BNP's voter bank and how to serve the people. As a result of that, I was naturally attracted towards BNP by look at the way the political discussion. My father was a good orator and he used to give speech and explained to the people in simple language about BNP's policies and their activities. As a result of that many people joined the BNP and started following and supporting the BNP in our area.

   11.I initially started my political association with the BNP with its student Wing (called Bangladesh Jatiotabadi Chatra Dal (JCD) in 1989. Though, initial attraction towards BNP started due to my father's influence, however, soon I started reading the policy, history and the work of the BNP and Zia ur Rahman's policy and engaged in study to learn about politics to enhance my knowledge. At the time I joined the JCD, [Mr E] was the President of the JCD at the college and Vice President of the [College 3] Student Union.

   12.It should be noted after I joined [College 3], I stayed in the hostel during my study period. In the hostel, there was a JCD branch and I was selected as the General Secretary of the JCD in the hostel. As a General Secretary, my responsibilities were as follows:

   a.Taking minutes of the meeting of the JCD in the hostel.

   b.In case, President and the Vice President not attending the meeting, I presided the meeting.

   c.Communicate with the College JCD and briefed them about our function.

   d.Enlighten the College JCD about the needs of the student in the hostel to receive assistance.

   e.Organising welcome ceremony in the hostel for the newcomers.

   f.Since I came from a well-known political family and my father was a good orator, I was entrusted with the responsibilities to enlighten the students in the hostel about BNP's history and political ideologies.

   13.In 1989 sometime in December I was asked to contest in the Student union election for the post of Assistant General Secretary. The other office bears who contested the election with me were all JCD members and activists. We won the election of the College Student council and I became the Assistant General Secretary of the College student union. [Mr E] became the President of the Student union. Through my position as the Assistant General Secretary, I was able to encourage new students to consider joining the JCD. Due to my oratory skill which I learned from my father I was able to convince fellow students.

   14.Due to my active political engagement, activities and the ability to mobilise the youths and my family's profile, I became popular and as a result of that, I was able to develop good rapport from the BNP leaders including national level leaders. During the time I was in the College, I became closer to [Mr D], who was the President of the [District 1] BNP. He taught me and moulded my political career. I consider him as my Guru in my political activities. [Mr D] contested in the National election([Electorate 1]) and served as MP for many years till [year]. I helped in his political campaigns in 1991, 1996 and 2001 election. When BNP was in power in 1991 and in 2001 with his help we were able to do lot of assistance and help to our people in the area. Since I was closed to him, people in [Electorate 1] used to give their petition and compliments to pass to him. [Mr D] always promoted me and encouraged me and used to say that I should further developed my oratory skills to enter national level political activities.

   15.Due to my political activities, engagements and family profile and my good rapport with [Mr D], the local BNP branch, [Branch 1] (or [Upazila 1]) selected me as [Secretary 1] in 2000. Since I was a [Occupation 1], it was a relevant position for me to serve people and I happily accepted it. In fact, [Mr D] encouraged me to take the position. At that time [Mr C] was the President of [Branch 1]. I continued to serve in the position till 2014.

   16.When the election was announced for 2001 election, I actively worked for [Mr D]. I helped him to organise small meetings and with the help from my family and friends I was able to provide financial contribution during his election campaign. He won the election 2001 against the Awami League candidate [named]. During his tenure as Member of Parliament, he allocated funds to engage in social work in our electoral constituency. As a result of that, my popularity increased further. I helped [Mr D] because he is my political guru. I also supported and engaged in political activities in my electoral constituency [Electorate 2] where [Mr F] contested. Since I became close to [Mr D] and [Mr F], I developed close friendship with local BNP leaders included [Mr A]. In 2008, [Mr A] introduced me to Advocate Abdul Salam Azad who is a central committee member and a prominent leader of the BNP. I continue to maintain good relationship with him. It should be noted that in 2001 election I served as a Polling agent appointed by the BNP.

   17.During 2008 election, we believed that the Army was indirectly helping the Awami League and we knew that the Awami League would do anything to get elected. As a result of that, Awami League activists and their goons considered me as their enemy. After they won the election, they started showing their true colours which they continue to engage till now. During that election I supported [Mr F] and organised meetings, engaged in pestering, distributing leaflet and door to door election campaigns. The BNP appointed me as a Polling agent and I served as a polling agent and monitored the election. We were harassed and thrown out of the polling booth. Based on my personal knowledge I can confidently say that the election was rigged. As result, [Mr F] lost the election which we believed through election rigging. On 20 January 2009, more than 10 Awa mi League cadres came to my [shop] and started attacking my [shop] and attacked me as well. They had hockey stick in their hands. They vandalised the windows and the motor bike. Though, I was also attacked, I did not sustain any injury though I experienced lot of pain for which I took pain killers.

   18.When the inhuman activities of the Awami League increased, the BNP organised protests to highlight the issues the BNP activists and the ordinary people faced. In addition, corruption became a major issue and the economy started going further down and the cost of living increased. As a major opposition party, the BNP has the responsibility to speak on behalf of and for the people. They organised protest march and meetings to educate people which has angered the Awami League who have connections and network with the criminal gangs. Because I was a [Occupation 1] and developed considerable profile as a political leader, I actively involved in highlighting the issues and educating people which created serious issues with the Awami League cadres.

   19.On 9 April 2010 I attended a protest march organised by the BNP which was very successful and I was able to encourage lot of people to join the protest which angered the Awami League. Next day, when I was on the road close to my [shop], 8-10 Awami League cadres surrounded me and attacked me. As a result of that, I became unconscious. I was later informed by my wife that someone passed the message to my wife and she came and took me to the local Thana Hospital. The hospital then referred me to Orthopaedic division of the Dhaka hospital (NITOR). I was admitted in the hospital for six hours. As a result of that attack, I sustained injury in my finger.

   20.Despite the intimidation, threats and harassment I continue to engage in political activities because I cannot abandon my political opinion and engagement. When the Awami League led government announced that they intended to conduct the election 2014, the BNP requested the international community to exert pressure on the Awami League government to have the election under a Caretaker government. However, the Awami League did not want to have the election under the Caretaker government because they knew that if they conducted fair election, they would lose it. As a result of that, the BNP boycotted the election but engage in protests and demonstration to highlight the issues. I actively involved in those activities participating in meetings, demonstrations and protests. I also helped the leaders to organise those events which attracted adverse concerns of the Awami League.

   21.After the so-called election (we consider that election as fake election) in January 2014 (05.01.2014), I was kidnaped by the Awami League goons close to my [shop] on 10 January 2014. I was stopped on the middle of the road and blindfolded and they took me in their motor bike (I sat in the middle between two Awami League cadres) and warned me that if raise any voice they would kill me. They took me to an unknown place and then opened my eye. When they opened my eyes I saw the Awami League leader named [Mr G]. [Mr G] is the current Chairman of [Union 1]. He and others warned me and threatened me to stop my political activities and said I should leave the country. They also warned me not to provide any financial contribution to the BNP. After the warning, they released me after 2 hours.

   22.In order to save my life, I paid money to [Mr G] in order not to take any action against me.

   23.During the period, the Awami League government engaged in activities to break the support base of local grass root level members and I was entrusted with the tasks of continue to educate and encourage people to support and participate in the meetings and the protests of the BNP. The Awami League government used its power and influenced started filing cases against the BNP members and supporters randomly. Even people do not know how many cases they filed. One of the tactics they engaged in was, they filed cases saying 'other unknown accused' and whenever they wanted they included whoever they wanted in the charge sheet. So, it was difficult to ascertain how many cases the BNP ciders and activists have in their names.

   24.Due to the threats, intimidation and harassment, on the advice of my family I decided to leave the country and with the help from an agent I left the country. I paid money to the agent. Initially, the agent told me that he would arrange an Australian visa from [Country 1]. So he took me to [Country 1] but that attempt was failed and I returned to Bangladesh [in] August 2016. I then contacted a new agent and as per his advice an application was submitted to the Australian High Commission and I have no idea what documents he provided to obtain the visa. I was granted the visa [in] December 2016 I left the country immediately.

   25.After arriving in Australia, I started involvement with the BNP Australia since January 2017. I met [Mr B] who is one of the leaders of the BNP-Australia and continue to engage with political activities. I am currently holding the position of executive member of the BNP Australia.

   26.I attend the meetings and functions of the BNP in Australia. I participated in the General Meeting of the BNP Australia in 2017, 2018, and 2019. I participated in the public protest on 27 and 28 April 2018 against the visit of the Awami League leader Sheikh Hasina. I was very vocal and there was a big media coverage for the event. I also participated in Solidarity Revolution and Peace Day celebration organised by the BNP in 2017, 2018 and 2019. The BNP Australia organised the Victory Celebration Day on 16 December 2017, 2018, 2019 which I actively participated. I also attended the rally and protest against the 2018 election because we believed the election was not conducted in fair manner. I also attended lftar and Dowa Mafhfil for the release of BNP Chairperson and former Prime Minister Begum Khaleda Zia on 01 June 2019. I also attended the BNP founding Anniversary Celebrations in 2017, 2018, 2019 and 2020.

   27.I note that there ls a very strong Awami League group operating in Sydney and we the BNP members in Sydney believe that one of their work is to monitor the activities of the BNP in Australia and pass the messages to the Awami League in Bangladesh for them to take action against those involved in protest against the Awami League leadership whenever they returned to Bangladesh.

   28.I fear if I returned to Bangladesh now or in a foreseeable future, I will face serious harm from the Awami League, Police, RAB and the criminal gangs connected with the Awami League for the following reasons:

   a. Due to my active political opinion supporting the BNP.

   b. Due to my active political engagement with the BNP.

   c. Due to my political opinion against the Awami League.

   d. Due to my participation in the protests against the Awami League leadership with the Bangladeshi diaspora.

   e. Due to my situation as a person who sought protection in a western country and due to my political association with the BNP, my enemies will perceive that I must have provided adverse information about the Bangladesh government and leaders to the Australian authorities.

   29.I fear I cannot get state protection from the authorities because the people I fear are in the government and in the powerful positions in Bangladesh. I fear due to my active political opinion even if I move to other parts of the country, I will continue to face harm.

   30.Accordingly, I request the Tribunal to recognise me as a refugee.

4. The representaitve in his submission dated 8 March 2021 referred to and attached country information outlined above and made the following submissions:

   ·Based on the reports submitted human rights in Bangladesh are deteriorating, human rights violations including extrajudicial killings, enforced disappearances and torture continue in Bangladesh, Awami League-backed Chhatra League and Jubo League leaders and activists continue to engage in human rights abuses with impunity and in 2019, a total of 391 persons were allegedly killed extrajudicially.

   ·The applicant not only holds a political opinion supporting the BNP but also holds a political opinion opposed to the Awami League. His political profile and activities in Bangladesh and in Australia confirm his political engagement expressing his views against the current government.

   ·Based on the US State Department report and others that indicate those affiliated with opposition parties face arbitrary arrest and torture, as well as unlawful and forced disappearance, due to the applicant’s profile there is a real risk that he would be identified and targeted for his active involvement including his activities overseas against the Awami League leadership.

   ·As the applicant openly expresses his views against the Awami League government in Bangladesh and in Australia and has participated in the protest against the visit of the Bangladesh Prime Minister which was widely publicised in Australia and in Bangladesh, engaging in activities to expose human rights abuses of the Awami League government, there is a real risk that he would be targeted and harmed if he returned to Bangladesh.

   ·As the country information indicates that the Awami League government uses disappearance, or threats of disappearance, as tools to silence critics and repress the opposition, active BNP members like the applicant who has an established political profile will be targeted and harmed if he returns to Bangladesh now or in the foreseeable future.

   ·Awami League cadres and activists use the state organs to target and severely harass their political opponents involved in political activities.  Political activities and expressing one’s views are fundamental rights of a human being in a democratic country.

   ·Human rights violations and abuses particularly targeting political opponents such as the applicant continue in Bangladesh.

   ·Political violence and targeted attacks and killings against BNP members and activists continue in Bangladesh.

   ·Anyone who is actively involved in political activities and campaigning for the BNP faces the risk of targeted violent attacks from the Awami League cadres.

   ·The BNP leadership has confirmed that their activists face targeted attacks from the Awami League supporters and members who act with passive and active support of the government and its organs. The BNP leadership has issued a public statement confirming that their party members and active supporters are at risk of harm in Bangladesh.

   ·Due to ongoing political violence, there is a real possibility that the applicant will become attacked due to his political profile and commitment and engagement promoting the principles of the BNP.

   ·BNP activists are at risk of facing false politically motivated cases in Bangladesh due to their active involvement promoting the BNP according to the BNP leadership.

   ·The applicant will not be able to obtain effective protection and movement to other areas of the country is not a possible option because of his active political opinion and engagement supporting the BNP.

1. The representative’s submission refers to the importance of protection from return to a country where fundamental issues of life, liberty and security of the person may be in jeopardy and notes that this requires an open, fair and generous decision making process, particularly with respect to an assessment of credibility. He submitted that as a result the claimant’s testimony should be presumed to be true and second, the claimant should be given the benefit of the doubt once his general credibility has been accepted.

2. The representative referred to Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 where the Full Court of the Federal Court has noted that ‘refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia’. He also refers to a statement by Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 162 ALR 1:

   …the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

3. At the Tribunal hearing held on 15 March 2021, the applicant reiterated his claim to fear return on the basis of his political involvement and activities with the JCD and BNP. He also referred to his active role in the BNP Australia, as a member of the executive committee and attending protests as reason why he fears return to Bangladesh. He referred to protests he had attended in Australia including that against the Prime Minister and Awami League leader Sheikh Hassina when she visited Australia on 27-28 April 2018. He said Awami League members in Australia have a strong and large network and will report to the Awami League in Bangladesh his political activity against them. He also referred to his father’s involvement and leadership with the BNP as being a cumulative reason as to the difficulties he will face on return and that due to his status as [an Occupation 1] he was influential in encouraging people to support and vote for the BNP. As to what will happen on return he referred to being kidnapped and tortured and said he will be sent to jail as they will incriminate him with a false case.

4. He indicated that his wife and [children] continue to live in his home in his home village of [Village 1] with his mother and younger brother. He confirmed he lived in his home in his home village of [Village 1] up until he departed in December 2016 and he worked as [an Occupation 1] and [Occupation 2] up until the time he departed to Australia in December 2016. He confirmed he travelled to [Country 1] from [date] August 2016 to [date] August 2016, then returned to Bangladesh. He said he returned to Bangladesh as the agent advised he would have to take a small boat to Australia and he believed this to be too risky. He confirmed he held a multiple entry visa to travel to [Country 2] for up to 90 days valid from [date] October 2016 to [date] April 2017 and said he did not travel to [Country 2] as his agent told him he had applied for a visa to come to Australia and he was waiting for that. As to the [Country 4] stamp in his passport he said he was declined a visa to travel to [Country 4].

5. He outlined the difficulties he had faced in Bangladesh due to his involvement in the JCD and BNP and as a result of his influencing voters for the BNP as [an Occupation 1]. He said problems for BNP supporters increased after the 2008 election and especially for him as he was a polling agent for the BNP in that election. When asked as to the difficulties he faced, he said on 20 January 2009 a gang of 10 to 12 Awami League supporters came and damaged his [shop]. He said he was the only one there. He said they broke the windows where the [stock] is held and damaged his motorbike which was outside the shop and threatened him saying that if he continued to be politically active he will be in big trouble.

6. He said things went from bad to worse, especially economically and in 2010 he was protesting against the government’s decision to build an airport in his area. He said he was present at the protest on 9 April 2010 and the following day on his way to the [shop] from his home at 10am he was attacked by Awami League supporters with hockey sticks. He said he lost consciousness and was taken to Dhaka for treatment and he hurt his thumb and spent 6 hours in the hospital. He said that was the only attack he suffered in 2010.

7. He said the next difficulty happened on 10 January 2014, at 10pm when he was returning to his home. He said a Honda suddenly pulled up and he was forcibly placed on the motorbike, a scarf was placed over his face and he was taken to one of the local Awami League leaders, [Mr G], who told him he had to stop his involvement in the BNP and stop motivating people to join the BNP as the local [Occupation 1]. He said he then had to stop his political activity and leave. The applicant said he advised [Mr G] it was not possible to immediately leave and he said he was given time and he paid [Mr G] 2 lakh and [Mr G] let him go to arrange his departure.  He initially said he did not stop his political activities and then said he continued to talk to [Mr A] and other leaders. He later said he ceased being [Secretary 1] in 2014 due to the threats he received from [Mr G] when kidnapped. He said there were no further incidents of harm and it took him until 2016 via his agent to leave Bangladesh.

8. When asked as to his involvement in Australia, he said he was a member of the BNP Australia executive committee and the Tribunal asked a number of questions as to who the members of the executive committee are, how often they met and his role.

9. The Tribunal referred to the witnesses and letters he provided and asked numerous questions about them. It attempted to call Mr Abdus Salam Azad in Bangladesh and [Mr B] in Australia but there was no answer.

10. [Mr A] was contacted via telephone in Bangladesh and he indicated that he was the applicant’s neighbour and BNP leader. He stated that the applicant’s father was involved in politics in Bangladesh as was the applicant. He referred to the applicant’s involvement in student politics and how he became [Secretary 1] and that as a result he was targeted by Awami League workers. He said he thought he was attacked twice and indicated he thought he was attacked in 2009 in his [shop] and in 2010 where he became unconscious. As to whether the applicant faced any further difficulties he said that these were the main ones although fake cases had been laid against him The Tribunal asked him why his information as to the attacks is different to that raised in his 2021 letter.

11. The applicant’s representative made the following oral submissions:

    ·At the beginning of the hearing he indicated that the name [Mr H] should be added to paragraph 17 of the applicant’s 2021 statutory declaration after [Mr F].

    ·He referred to paragraph 21 of the applicant’s statement to the Department and refuted the applicant had ever claimed to be in hiding and that there was no inconsistency with his claim he lived at home until he departed, as he had said he went into hiding around the time of the 2014 election.

    ·As to the Tribunal’s concern he did not seek protection in [Country 2] or [Country 1] he noted that neither were signatories to the Refugee Convention and therefore it is not reasonable for him to seek protection in those countries. The Tribunal noted that the concern was his evidence that he had never even enquired.

    ·As to the new information he indicated that while there was new information submitted, it was details as to claims which had been mentioned previously and referred to paragraph 22 where he refers to being kidnapped.

    ·As to the Tribunal’s concern that he had not referred to his political involvement with senior leaders he noted he referred to assisting [Mr D] in his statement to the Department.

    ·He referred to the applicant’s father’s BNP involvement and profile and that this should be considered cumulatively with the applicant’s involvement in the BNP. He noted any assessment of real chance and real risk is to be assessed cumulatively. He said while his younger brother has not faced difficulties, he is not involved in the BNP as is the applicant.

    ·He rejected that the applicant was involved in the BNP in Australia solely to strengthen his claim for refugee status as he had been involved in the past in Bangladesh.

    ·He referred to the applicant’s protest in Australia and the photos submitted. He submitted that the Awami League community in Australia is active and his active challenge to their leader is a serious issue for which he will face difficulties on return as being in opposition to the government.

    ·He noted that the letters provided by BNP leaders are from high level leaders.

    ·He noted that DFAT country information raised is old and that even active members are targeted by the Awami League. He noted that the Tribunal in 2 other cases had accepted that active members of the BNP face violence on return.

    ·He said his profile as a [Occupation 1] in his village, together with his present and past political activity, as well as his father’s profile and party leadership with the BNP leads him to have a profile opposed to the Awami League and as a result he will attract adverse interest from the Awami league on return.

12. The Tribunal questioned whether the applicant is a credible witness and outlined a number of concerns and inconsistencies in his evidence and with that of the witnesses including via s 424AA. Where relevant these are outlined below. The Tribunal also referred to and outlined s 423A and questioned why many of the claims had only been raised to the Tribunal and not to the Department in his statement or at interview. It referred to the documents and raised a number of concerns, including independent information as to the prevalence of document fraud in Australia. It questioned whether he is a genuine supporter of the BNP in Australia. It raised with him s 5J(6) and questioned whether he only become involved with the BNP in Australia and its activities solely to strengthen his claim for refugee status. It raised with him independent information that may indicate that he would not face a real chance of serious harm or real risk of significant harm due to his activities in BNP politics in Australia.

13. On 9 April 2021, the applicant provided the following statutory declaration:

    1.I provide following response related to my review application for a protection visa.

    2.I admit that when I applied for a protection visa and my matter was with the DOHA, I could not properly present my case. I admit that it was a mistake on my part as an adult I should have taken care of my case. However, since I had immigration representative at the time of Departmental stage, I relied on his advice and expertise. Due to that, some information, which I now believe, critical to my case was not presented to the Department though I told to my then immigration representative. I am sorry and apologise for that. I request the Tribunal to consider my case with humanitarian eye because I am a refugee applicant.

    3.In relation to the issue with Mr Abdul Salam Azad, I am very close with him and continue to in touch with him. He is a national level leader.  But during the hearing, I was stressed and could not provide sufficient information about him and I apologise for that. Mr Azad was the Ex-senior Vice President (BNP Jubo Dal) and assistance secretary of Dhaka Division and member of BNP's Central Executive Committee.

    4.In relation to the issue of [Mr I], who is the current leader and I was very stress and could not tell his correct position. It was a genuine mistake. But my activities with the BNP Australia and my public profile here and my significant political profile in Bangladesh are all true and genuine.

    5.In relation to [Mr A], he is an old person and he confused about the year and forgot to mention the incident of 2014. After the hearing, I called him and he told me that it was a mistake on his part.

    6.I request the Tribunal to consider my profile as a local [Occupation 1] and my political profile in Bangladesh and in Australia and recognise me as a refugee because it is real that if I returned to Bangladesh now or in foreseeable future.

    Assessment of credibility of claims

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

15. As to the applicant having faced the difficulties he claims due to his political activity in Bangladesh, for the reasons that follow the Tribunal does not accept that the applicant is a credible witness and suffered the harm or difficulties in his country for the reasons that he claims, which led him to leave Bangladesh and why he fears return. It follows it does not accept that he was ever involved in the JCD or the BNP in Bangladesh in the manner claimed or that he was harassed, threatened, attacked, kidnapped, physically assaulted or had false cases laid against him by members of the Awami League or anyone else. It finds his testimony to be inconsistent as to these claims and the Tribunal is of the view that he has fabricated claims and concocted evidence to achieve an immigration outcome.

    Difficulties faced due to his political involvement

16. Central to the applicant’s claims as to why he fears return and why he departed Bangladesh are the difficulties he faced at the hands of the Awami League due to his political involvement and activism with the JCD and BNP. However, for the reasons that follow, including numerous inconsistencies and omissions in his evidence provided to the Department and the Tribunal, the Tribunal does not accept he is a credible witness as to ever having faced any of the difficulties he claims due to his claimed political involvement, beliefs and influential role as a [Occupation 1] and [Occupation 2] and due to any family involvement in the BNP. This adds to the finding he is not a credible witness.

    2009 attack

17. Firstly, he claimed in his statutory declaration to the Tribunal dated 28 February 2021 and in vaguer terms (as outlined below) at the Tribunal hearing that on 20 January 2009 more than 10 Awami League members came to his [shop] and attacked him with hockey sticks, vandalising the windows and his motorbike due to his involvement as a BNP polling agent in the 2008 election and his accusations of vote rigging by the Awami League. He claimed while he was attacked, he did not sustain any injury though experienced pain. Of concern, however, is that this claim of harm personally and against his [shop] as well as his involvement as a polling agent for the BNP in the 2008 election, questioning the legitimacy of the voting was not raised previously in his statement to the Department submitted with his application for the protection visa on 15 December 2016 or at the Department interview held on 3 February 2017. The Tribunal also raised with him s 423A in relation to this new claim and the others, outlined below. It noted via the process outlined in s 424AA that it was particularly concerned as to the credibility of this new claim as he did not refer to this claim and the others (as outlined below) when he was asked at the Department interview whether there is anything he would like to say before the interview concludes, and whether he had put forward all information in relation to his protection visa claims, to which he responded: ‘I have given you everything I have’. He responded that he told his previous agent all the claims, but his old agent did not write it in his statement submitted to the Department. He said that at the time of the Department interview he was not well, he was very worried about his wife and family, and what he has said is true.

18. The Tribunal does not accept his explanation for the inconsistency, that he mentioned this and all his claims to the previous agent and it was the fault of his previous agent as to why they were not in his statement to the Department submitted with his application; as he signed this statement, as raised with him at hearing, and in his application, he indicated he speaks, reads and writes English. Due to the significance of the attack, being the first attack, violent and scary, as he noted at hearing, the Tribunal is of the view if this event occurred in Bangladesh he would have referred to it to the Department in his statement and especially at the interview when asked if there is anything he would like to add, even if he was at a low, and worried about his family.

19. Of further concern is that his evidence as to the attack on 20 January 2009 was vague and lacking when giving evidence about it at the Tribunal hearing, despite claiming it was a scary event and stating at the Tribunal hearing it was the first time he was attacked by Awami League cadres. His evidence at the Tribunal hearing was as follows:

    A: I was in problem, especially after 2008 election?

    T: What is the first difficulty you faced?

    A: Back then I supported my candidate who was [Mr H]

    T: Ok so you supported [Mr H], so what happened to you?

    A: I was the polling agent.

    T:  Ok, so what happened to you?

    A: I was the polling agent, lots of rigging was going go on and I objected to the rigging.

    T: And that was in 2008.

    A:  Yes

    T: Go on

    A: In 2009, 20 January 2009, a gang of people, maybe 10 or 12, they came to my [shop] and ransacked, you know they broke and things like that.

    T: Go on, so tell me what happened?

    A: In 2010, the economy was shattered, people were in a bad shape, no law and order, everything had gone from bad to worse, and then in a place called Sirajdikhan it was announced that a big international airport would be constructed

    T: Can you stop there, you are going to fast, I want to go back, you talked about being harmed on 20 January 2009, let me know the detail, tell me what happened?

    A: In 2009, 20 January, 10 to 12 people, ransacked, they broke and you know after breaking they damaged my [shop] and nothing further happened. It calmed down gradually and then in 2010 again…..

    T: No, I want to talk about 2009. I mean you are sounding quite vague for someone who was attacked by 10 people.

    A: In 2009 after the attack that you know later on I took some kind of medication, pain killer and I became ok

    T: Ok, but here we are, you were in a [shop], you were alone I’m presuming?

    A: I was all alone

    T: And I keep asking you for detail as to what happened, I mean this would have been a very scary event, with 10 to 12 people and I want you to give me detail as to what happened on that day. Tell me about it?

    A: They physically assaulted me and I suffered some bruises and they threatened if you continue your political activity or remain a polling agent in the future you will have bad consequences and they left. After they left, I took some medication and other treatment. Gradually I became ok.

    T: Ok, what did they break?

    A: They broke, you know in the [shop] they put the [stock] in the cupboard  made of glass and they broke the glass doors and in front of the [shop] my motor bike was there and they damaged it as well.

    T: Why did you not say in your statement about the threats?

    A; Yes, I mentioned about this incident

    T: But you did not say they threatened you if you continued to do your political activities and being a polling agent.

    A: They specifically mentioned if continue to be a polling agent I would get into big trouble

1. The Tribunal views the applicant’s evidence as to the 2009 event as vague and lacking in detail, particularly as the Tribunal kept asking him for details. It is of the view if the applicant was attacked by 10 to 12 people in his [shop], he would have been able to recount in more detail what actually happened without being prompted on numerous occasions.

2. While not solely determinative, it also views as of concern that he only indicated he was threatened at the Tribunal hearing and not in his statutory declaration dated 26 February 2021. When raised with him his response did not explain the omission.

3. His lack of reference of this 2009 attack to the Department and his vague evidence lacking in detail as to this attack at the Tribunal hearing adds to the finding he has fabricated this claim to enhance his claim for protection. It adds the finding he is not a credible witness.

   2010 attack

4. Further, he claimed in his statutory declaration to the Tribunal dated 28 February 2021 and at the Tribunal hearing on 15 March 2021 that on 10 April 2010 following protesting the building of an airport in his area on 9 April 2010, on his way to his [shop] he was assaulted at 10am by 10 to 12 Awami League cadres, who attacked him with hockey sticks and he was rendered unconscious.  He claims he was taken to the local hospital then to the orthopaedic division of the Dhaka hospital where he was diagnosed with a fracture of his finger/thumb. He referred to the submitted medical report which has been considered below. He said this was the only attack he sustained in 2010. Of concern, however, is that this claim of harm was not raised previously in his statement to the Department submitted with his application for the protection visa on 15 December 2016 or at the Department interview held on 3 February 2017 despite being asked whether there is anything he would like to say before the interview concludes and whether he had put forward all information in relation to his protection visa claims. He responded similarly as outlined above. As noted above, the Tribunal does not accept his explanation for the omission of this new claim to the Department either in his statement or especially at the Department interview, particularly due to the significance of the event.

5. Further, of concern, is that at the Department interview he gave evidence of an attempted kidnap by the Awami League on 20 December 2010 due to his involvement in protesting against the airport when asked as to the harm he faced in 2010, which he did not provide to the Tribunal. In particular, he said to the Department at interview that on 20 December 2010 at 8pm at night he was returning home from the [shop] to his home when 10 Awami League cadres tried to kidnap him. When asked if he did anything after that, he answered in the negative. However, at the Tribunal hearing after recounting the difficulties he faced on 10 April 2010, he said this was the only difficulty he faced in 2010. When the Tribunal raised its concern as to his inconsistent evidence as to the difficulties he faced between the Department and Tribunal as to the attack in December 2010 and his omission in discussing this event to the Tribunal, he said he was referring to when he was kidnapped on 10 January 2014 and then recounted when he was kidnapped in January 2014 as outlined below. The Tribunal does not accept this explanation as the described events of the kidnapping in 2014 are in contrast to that described in the 2010 attempted kidnap. If it was merely a problem with the date the Tribunal expects that his description as to what happened would be similar but it is not with one being an attempted kidnap and the other being a kidnap, being taken to [Mr G] and having to pay 2 lakh.

6. His lack of reference of the April 2010 attack to the Department and his lack of reference to the December 2010 attack to the Tribunal adds to the finding he has fabricated these claims of harm in April 2010 and December 2010 to enhance his claim for protection. It adds to the finding he is not a credible witness.

   2014 kidnapping

7. Further, he claimed in his statutory declaration to the Tribunal dated 28 February 2021 and at the Tribunal hearing on 15 March 2021 that on 10 January 2014 he was kidnapped by the Awami League goons close to his [shop] at 10pm. He claimed he was stopped in the middle of the road, blindfolded, and taken to [Mr G], the then current Chairman of the Awami League [Union 1]. He stated that he was threatened to stop his political activities and to leave the country. At the hearing he said that he told [Mr G] it was not possible for him to leave the area immediately and requested he be given time. He said he had to pay 2 lakh to [Mr G] for his release. Of concern, however, is that this claim of harm was not raised previously in his statement to the Department submitted with his application for the protection visa on 15 December 2016 or at the Department interview held on 3 February 2017 despite being asked whether there is anything he would like to say before the interview concludes and whether he had put forward all information in relation to his protection visa claims. He responded similarly as outlined above. Further, while his statement to the Department refers to attempted kidnappings there is no reference to actually being kidnapped and the actual events that he claimed occurred in January 2014 as outlined to the Tribunal.

8. The Tribunal has considered his responses to the omissions in evidence to the Department and has rejected his explanation. As noted above, the Tribunal does not accept his explanation for the omission of this new claim to the Department either in his statement or at the Department interview, due to its significance. The Tribunal views his lack of discussion of this event or being actually kidnapped and taken to [Mr G], an Awami League leader which he claims led him to leave Bangladesh as significant. It is of the view if this event happened including having to pay 2 lakh to secure his release, he would have referred to it to the Department both in his statement and at the Department interview. His lack of any mention of this claim, due to its significance adds to the finding he was not kidnapped in 2014 or at any time and adds to the finding he is not a credible witness.

9. These concerns add to the finding he did not face any of the difficulties he claims at the hands of the Awami League or anyone else from 2008 until his departure in 2016 or at any time. It adds to the finding he is not a credible witness.

   Delay in departure, return to Bangladesh and living at home until departure

10. Despite the applicant claiming to the Tribunal he decided to leave Bangladesh following the kidnapping by the Awami League in January 2014 where he claims he was told by the Awami League leader, [Mr G] that he had to cease his political activities with the BNP and leave the country; despite claiming he departed due to threats of intimidation and harassment; despite claiming in his statement to the Department that since the 2014 election on 5 January 2014 the brutalities of the Awami League criminals have increased tremendously and it was risky for him to live in Bangladesh and he was unable to move and do his business freely; despite claiming at the Department interview that after the 2014 election there were false cases against him and the RAB tried to murder him secretly; despite claiming that people would come to arrest and harm him so he would go and stay at friends’ houses and despite claiming that part of the reason he fears serious harm on return is because of what happened to him in Bangladesh, he did not depart until approximately 1 month following the grant of his visa to travel to Australia. Further, of concern is that he returned to Bangladesh from [Country 1] in 2016 without looking for protection options and he continued living and working at home until his departure to Australia on 4 December 2016 These factors outlined in further detail below undermine his claim he faced the difficulties he claims and departed Bangladesh in fear of serious harm for the reasons he claims. This adds to the finding he is not a credible witness. 

11. In particular, the evidence indicates that despite being granted a visa to travel to Australia on [date] November 2016[2] he did not depart Bangladesh until [December] 2016,[3] a period of about 1 month. When the concern was raised with the applicant at the 2021 hearing, that his delay undermines his claim to be in fear and to have faced the difficulties he claims, he did not provide an explanation for the delay. He previously had claimed he had an agreement with [Mr G] to give him time to depart but as noted above, he also claimed to the Department he was being sought out by the RAB and there were false cases against him. The Tribunal is of the view that if he was in fear for the reasons he claims and having faced the difficulties he claims, even if there was an agreement with [Mr G] to give him time he would have departed Bangladesh sooner than approximately 1 month from when he had a visa to enter Australia. His delay in departure of approximately 1 month when he had a valid visa and means to do so undermines his claim that he was at risk of harm or feared harm or faced any difficulties which led him to fear harm and depart for the reasons he claims. This adds to the finding he is not a credible witness.

    [2] As outlined in the Department decision.

    [3] As he stated at the Tribunal hearing. The Tribunal notes in his statutory declaration he states the visa was granted on [date] December 2016, however, Australian government records as outlined in the Department decision, attached to the Application for Review, indicates it was granted on [date] November 2016. Additionally, his application for the protection visa notes the visa to travel to Australia was issued on [date] November 2016.

12. Further, his behavior in remaining living in his home and working as a rural [Occupation 1] and in his [shop] up until the time of his departure, which he had been doing so for many years since the 1990s undermines his claim that he faced the difficulties which he claims led him to depart Bangladesh and why he fears return. At the 2021 hearing he confirmed he lived and worked in his home village up until he departed in December 2016. He said while he went into hiding around the time of the 2014 election, since that time he lived in his home and worked as a rural [Occupation 1] and [Occupation 2]. When the Tribunal raised its concern in this regard, he responded that he understood there was a risk, but he had an agreement with [Mr G] that it would take time to depart. At the Department interview when this concern was raised, he said that of course they tried to harm him several times, but he was very cautious and sometimes he went to hideouts when he knew people were looking for him. The Tribunal does not accept his explanation especially as he only first raised his evidence to the Tribunal as to being kidnapped by the Awami League and that he had an agreement with [Mr G] to give him time to leave and had not done so previously and for the reasons outlined above does not accept he is a credible witness as to this claim. Further, it is of the view that he would provide a consistent explanation between the Department and Tribunal as to why he was able to live and work at his home up until he departed Australia, when he claims he was in fear and at risk of harm in the manner claimed, which he has not. It views his behaviour that he remained living at his home and working up until his departure, as undermining his claim to have been in fear and having faced the difficulties he claims due to his political participation and activities and that he departed Bangladesh in fear of harm for the reasons he claims.

13. The Tribunal also views his behaviour of returning to Bangladesh in 2016 from [Country 1] to undermine his claim that he faced the difficulties he claims, and that he left Bangladesh in fear for the reasons he claims. As to his travel outside Bangladesh, the applicant said he travelled to [Country 1] from [date] August 2016 to [date] August 2016. As to why he travelled and then returned, he said that an agent assisted him to travel to [Country 1] for onward travel to Australia but when he got to [Country 1] he was told he would have to travel to Australia by boat and he believed this was too risky, so he returned. The evidence indicates he returned to where he had lived in Bangladesh and continued to work in his village. When the concern was raised with him and he was questioned whether he looked into whether there existed any options to seek protection in [Country 1], he said he did not. He also said [Mr G] had given him reasonable time to leave. At the Department interview when the concern was raised he also referred to feeling that travel to Australia from [Country 1] by boat was too risky. The Tribunal is of the view if the applicant faced the difficulties he claims as outlined above and was in fear due to the difficulties he faced he would not have returned to Bangladesh, without at least seeking options for protection in [Country 1]. This is particularly so as he said he was able to stay in [Country 1] for 14 days but only stayed for 2 to 3 days. His representative submitted that as [Country 1] is not a signatory to the Refugee Convention it is unreasonable to expect the applicant to stay and seek protection there. Notwithstanding, the Tribunal is of the view that if the applicant was at risk as he claims he would not have returned to Bangladesh for any of the reasons he claims only after spending 2 to 3 days in [Country 1] without looking for protection options when he was able to stay for 14 days. While it accepts that travel by boat to Australia was risky it is of the view if he faced the difficulties he claims as outlined above he would have at least looked at or researched options to seek protection in [Country 1] at a minimum. His return to Bangladesh from [Country 1] undermines his claim that he faced the difficulties he claims, to be in fear of the Awami League cadres, RAB or anyone else for the reasons he claims. It adds to the finding he is not a credible witness.

    BNP Australia

14. Central to the applicant’s claims is his involvement in the BNP in Australia, including being on the executive committee and attending protests and demonstrations in Australia. However, despite claiming he is on the executive committee attending meetings monthly he was unable to provide detailed evidence as to who sits on the executive committee. When asked as to who sits on the executive committee with him he said there were 5 people, the President who is [Mr I], the Vice President whose name he cannot remember, the Convenor whose name he could not remember and the Cashier who is [Mr J]. He then said the Cultural Secretary is [Mr K]. He confirmed that 5 people sit on the executive committee – himself, the President, Vice President, Cultural Secretary and Cashier. He then referred to [Mr B] as organising the meetings as a member of the executive committee. However, the Tribunal noted he had not previously mentioned him as one of the 5 on the executive committee. When the Tribunal raised with him that his evidence appeared vague and lacking in detail as to the executive committee which he claims he frequently attends, he did not respond. In this regard the Tribunal notes that the letter of [Mr B] while referring to the applicant being an executive member only refers to him participating in the general meeting of the BNP Australia at the end of 2017, 2018 and 2019.

15. In his s 424AA response he indicated that [Mr I] is the leader and he could not name his correct position as it was a genuine mistake. The Tribunal, however, accepted he was able to name [Mr I] as a leader and did not draw an adverse inference as to this.

16. The applicant’s evidence lacking in detail as to his claimed level of involvement as an executive member attending meetings monthly adds to the finding he is not a credible witness.

    Credibility summary

17. For all the above reasons, considered cumulatively, the Tribunal does not find the applicant to be a credible, truthful and reliable witness as to his involvement in the BNP or JCD in Bangladesh. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. On the basis of the above cumulative credibility concerns, the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims as to why he departed Bangladesh and the difficulties he faced in Bangladesh.

18. In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. It is also sensitive to the length of the process and that frustrations can arise in this regard. In this regard, it has considered his claim that at the Department interview he was not well and he was very worried about his wife and family. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led the Tribunal to find that the applicant is not a reliable witness as to these claims.

19. In making this finding the Tribunal has also considered that some information has been consistent over time including his roles in the JCD and BNP in Bangladesh and that in 2010 he protested the building of an airport in his home area. However, the Tribunal considers that these matters are relatively easy matters to recall and his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness.

20. In making this finding the Tribunal has considered his claim that he could not properly present his case to the Department, as he relied on the poor advice of his previous immigration agent and that as a result information that was critical to his case was not presented to the Department. However, the Tribunal does not accept this as a reason for inconsistencies and omissions in evidence to the Department as he was asked at the Department interview whether there was anything he would like to say before the interview concludes and whether he had put forward all information in relation to his protection visa claims, to which he responded: ‘I have given you everything I have’. The Tribunal is of the view he would have referred to the significant attacks and claims he raised for the first time to the Tribunal at the interview when asked these questions if these had occurred.

21. In making this finding the Tribunal has considered the handwritten Medical/Injury report dated 10 April 2010 from [Hospital 1], [District 1] noting the applicant has a swelling of one inch of the right little thumb caused by a blunt weapon and that a fracture was found on the interphalangeal area. The Tribunal notes that this report does not refer to the injuries being sustained at the hands of Awami League goons due to the applicant’s political activities for the reasons he claims. On the basis of the applicant’s complete lack of credibility including as to being attacked on 10 April 2010 by Awami League cadres, it does not accept that this document supports his claim that he sustained the injury at the hands of Awami League goons due to his past political activities with the BNP, JCD or as he accused them of rigging the votes. It therefore places no weight on this medical document as evidence of the applicant’s claims.

22. In making this finding the Tribunal has considered the 2 letters from [Mr A], President, [Sub District 1] BNP dated 2 March 2021 and 17 December 2016, and his oral evidence provided at the Tribunal hearing as to the applicant’s involvement in the JCD and BNP, his activities and the difficulties he faced as a result. While [Mr A]’s evidence is consistent as to the applicant’s roles he held with the BNP and JCD in Bangladesh, the Tribunal has a number of concerns with the evidence of [Mr A]. Firstly, it is difficult to know if [Mr A] is involved with the BNP as claimed when talking over the phone. Further, his letter of 17 December 2016 to the Department makes no reference to any specific attack and is vague in nature as to his activities similar to the applicant’s evidence to the Department, however, his second letter submitted around the same time as the updated statutory declaration in February 2021 refers to the attacks on 10 April 2010 and 10 January 2014. While not determinative the Tribunal is of the view if the applicant faced the difficulties he claims in 2010 and 2014 as outlined in his February 2021 statutory declaration, it may expect that these would be referred to in [Mr A]’s first letter in 2016 not only his second. Further, when giving oral evidence at the Tribunal hearing when referring to attacks on the applicant [Mr A] was inconsistent with his letter referring to the applicant having faced attacks in 2009 and 2010 saying these were the main difficulties, whereas his letter refers to attacks in 2010 and 2014. When these concerns were raised at hearing with the applicant via s 424AA the applicant did not respond. In a statutory declaration received following the hearing, the applicant claimed that [Mr A] is an old person, he made a mistake, became confused and forgot to mention the 2014 incident. The Tribunal has difficulty accepting the mistakes occurred for the reasons he claims when the applicant’s evidence is that they speak every day. Therefore, due to these concerns, as well as on the basis of the applicant’s lack of credibility generally and as to the difficulties he faced in Bangladesh and the prevalence of document fraud in Bangladesh with regard to the letters[4] as raised with the applicant at hearing, the Tribunal places no weight on [Mr A]’s oral evidence and his letters as evidence of the applicant’s claims and the difficulties he faced.

    [4] DFAT, DFAT Country Information Report, Bangladesh, 22 August 2019 5.39 to 5.44 and UK Home Office, Country Information Note Bangladesh: Documentation, March 2020

1. In making this finding the Tribunal has considered the letter from [Mr C], Chairman, BNP [Branch 1], [District 1] dated 28 February 2021 as to the applicant’s involvement in the JCD and BNP, his activities and the difficulties he faced as a result. However, on the basis of the applicant’s lack of credibility and the prevalence of document fraud in Bangladesh as raised with the applicant at hearing, the Tribunal places no weight on these letters as evidence of the applicant’s claims and the difficulties he faced.

2. In making these findings the Tribunal has also considered the letter from Advocate Abdus Salam Azad, Assistant Organising Secretary, Central Committee BNP Bangladesh dated 2 March 2021. Of concern, is that despite claiming he is very close to this man who is a senior leader of the BNP he was unable to provide evidence as to his previous senior role with the BNP youth organisation as Senior Vice President[5] and the significant attack he faced in June 2015, as raised with the applicant via s 424AA. In this regard the evidence indicates that Advocate Abdus Salam Azad was assaulted and stabbed at the BNP’s central office in Dhaka in June 2015.[6] The evidence indicates it was widely reported at the time.[7]  In his post-hearing written response the applicant said he is very close to this national leader and continues to be in touch with him but he was stressed at the hearing and could not provide sufficient information. The Tribunal does not accept this response and is of the view if he had the relationship as claimed he would have advised the Tribunal of his past position with the Jubo Dal (BNP youth organisation) and the attack on him.  On the basis of the applicant’s lack of credibility, and the prevalence of document fraud in Bangladesh[8] as raised with the applicant at hearing, the Tribunal places no weight on this letter as evidence of the applicant’s claims and the difficulties he faced.

   [5] ‘Sources at the office said Salam who is also Jubo Dal Vice-President went to the floor after attending a press briefing held on the first floor earlier’. June 2015 Dhaka Tribune,

   [6] Ibid

   [8] DFAT, DFAT Country Information Report, Bangladesh, 22 August 2019 5.39 to 5.44 and UK Home Office, Country Information Note Bangladesh: Documentation, March 2020

In making this finding the applicant has considered the letter of [Mr B], [Secretary 2] of the BNP Australia dated 18 February 2021 to certify the applicant is personally known to him since January 2017 and that the applicant is working as Executive Member of BNP Australia.The Tribunal notes that the applicant advised at hearing that he advised [Mr B] after coming to Australia as to his political roles in Bangladesh and difficulties he personally faced in Bangladesh. As the evidence of the applicant indicates that the applicant advised [Mr B] of his political activities and difficulties in Bangladesh, based on the applicant’s lack of credibility as to these claims it places no weight on the letter as evidence of the applicant’s political positions with the BNP or JCD in Bangladesh, or difficulties he faced in Bangladesh.

In making this finding, the Tribunal has considered the independent information submitted by the applicant as supporting the credibility of his claimed difficulties. However, the Tribunal considers that these articles do not outweigh the significant credibility aspects outlined above as to the claimed difficulties faced by the applicant and his family and do not lead the Tribunal to change its view that the applicant is not a credible witness.

Accordingly, for all of the above reasons, in light of its findings that he is not a reliable witness, the Tribunal has no confidence in accepting that key aspects of his claims were based on his personal or actual experiences and considers it was fabricated to create a claim to be owed protection.  Based on his lack of credibility it does not accept he was a supporter, member, follower or ever involved with the JCD and/or BNP or ever held any of the roles with the BNP or JCD or undertook any of the activities with the JCD or BNP in the manner claimed or was ever perceived as a supporter or activist of the JCD and/or the BNP and/or perceived as being opposed to the Awami League by anyone in Bangladesh due to his father’s or family’s claimed involvement in the BNP or as he is a leading figure in his community as a [Occupation 1] and [Occupation 2]. It follows it does not accept that due to these roles he was ever close to any of the senior BNP or JCD leaders in his area or nationally.

It follows it does not accept he undertook any of the activities associated with being a member of the BNP or JCD including meeting with any of the senior leaders, promoting the BNP or JCD, organising and attending meetings, attending protests or rallies or acting as polling agent at elections. It follows it does not accept he undertook any of the activities claimed associated with the BNP or JCD or advocated against the Awami League including against the new airport site.

It follows, based on his lack of credibility, the Tribunal does not accept the applicant was ever threatened with harm or death unless he stopped his political activities, was beaten, his shop ransacked, kidnapped, harmed, verbally or physically assaulted, had false cases laid against him or faced any of the difficulties he claims at the hands of the Awami League or the police or RAB or [Mr G] or anyone else. It follows it does not accept as true he sustained any of the injuries he claims as a result of his political activity. It follows it does not accept he ever had to go into hiding or go to friends’ houses to avoid the harm feared.

It follows it does not accept that at the time of his departure he held any profile in Bangladesh with regard to being involved with the JCD or BNP and being in opposition to the Awami League. It follows based on the applicant’s lack of credibility the Tribunal does not accept as true that he fled Bangladesh as he feared being harmed or killed by the Awami League associates, members and activists or anyone acting on their behalf, including the police, RBA or [Mr G] or anyone else. It follows that the Tribunal does not accept as true that at the time he departed Bangladesh in 2016 he held any concerns for his safety or feared being harmed for any of the reasons he claims.

As to his political involvement in Australia, the Tribunal accepts that the applicant provided a number of photographs of what appears to be the applicant attending an event held by the Australian branch of the BNP to protest against the visit of Sheik Hasina, the Head of the Awami League and Prime Minister of Bangladesh. The Tribunal also accepts that the applicant provided a letter from [Mr B] dated 18 February 2021 who identifies as the [Secretary 2] of the Australian branch of the BNP indicating the applicant as an Executive Member of this group and that the applicant has participated in activities from January 2017. He has also provided a receipt for membership of the BNP Australia dated 1 January 2017. However, just because the applicant has joined the Australian branch of the BNP or participated in those meetings or events does not establish that the applicant did so because he had a genuine political opinion supportive of the BNP, or that the applicant joining the Australian branch was a continuation of his political involvement in Bangladesh. It may be that the applicant has joined the Australian branch of the BNP and undertaken various activities with that organisation merely to strengthen his protection claims. The Tribunal is satisfied that this is the case for the following reasons.

Firstly, the Tribunal has found above that his evidence as to his level of involvement in the BNP Australia as an Executive Member is not credible as it was lacking in detail.  Further, based on the applicant’s lack of credibility and the motivation to join the BNP Australia following his claimed involvement in the BNP in Bangladesh, the Tribunal does not accept his motivation was genuine as to his involvement in the BNP Australia since 2017 as an Executive Member, attending meetings, social events, commemorations and protests, and is of the view it was done to strengthen his claim for protection.

Does he have a well-founded fear of persecution in relation to Bangladesh and meet the refugee protection provisions of the Act, or does he meet the protection obligations under the complementary protection provisions of the Act?

Based on its findings as to the applicant’s credibility, the Tribunal has found that the applicant is not and was not a leader, supporter, member, associated with, involved or perceived to be associated with the JCD or BNP in opposition to the Awami League, or faced any of the difficulties he claims for the reasons he claims at the hands of the police, Awami League, RBA, [Mr G] or the Bangladeshi Government or anyone else. Based on his lack of credibility it has not accepted that his father was also a high-profile member or leader or supporter of the BNP.

The Tribunal has found above that at the time he departed Bangladesh he was not of any interest to the Awami League, police, RBA, [Mr G] or the Bangladeshi Government or anyone else for the reasons he claims.  It follows it does not accept were he to return to Bangladesh now or in the reasonably foreseeable future the applicant or his family will be killed, harmed, be physically abused, threatened, harassed, be arrested and detained, have to go into hiding, have to relocate, be unable to live a normal life, be kidnapped, have a false case fabricated against him, be traumatised, be unable to earn a livelihood or face any of the difficulties he claims from the Awami League, police, RBA, [Mr G] or law enforcement officials or the authorities or anyone else.

As the Tribunal has found that the applicant was never involved with the JCD or BNP in the manner he claims in Bangladesh and has rejected that his motivation was genuine as to his past involvement with the BNP in Australia, it follows that the Tribunal is not satisfied that the applicant will participate in any BNP or JCD activities in any way on return or will suffer persecution by being prevented from being involved. It does not accept as he has not been involved in the past that he will continue to work for the JCD or BNP wherever he lives in Bangladesh, which would place the applicant or his family at any risk of harm. It does not accept he will not be involved in the future as he is scared or due to any fear of harm.

As a result the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm if he returns to Bangladesh in the reasonably foreseeable future at the hands of the Awami League, or anyone acting on their behalf or the police or the RBA or [Mr G], the authorities or anyone else due to his political activities, leadership, opinion or imputed political opinion associated with the BNP or JCD or the past involvement of his father in BNP politics in the manner claimed.

Similarly, based on the findings above and on the information before it, the Tribunal is not satisfied that there is a real risk that he will suffer significant harm on his return to Bangladesh at the hands of the Awami League, or anyone acting on their behalf or the police or the RBA or [Mr G] or the authorities or anyone else due to his political activities, leadership, opinion or imputed political opinion associated with the BNP or JCD or the past involvement of his father in BNP politics in the manner claimed.

Notwithstanding the above, the Tribunal’s finding that the applicant’s motivation was and is not genuine as to his involvement with the BNP in Australia and he will not be politically active on return to Bangladesh, the Tribunal has accepted that the applicant attended a number of BNP Australia meetings and events from 2017 to 2020 as described in the letter of [Mr B].  The applicant claims due to his involvement in the BNP Australia and political events, including protesting the visit of Sheik Hasina in April 2018, due to there being an active Awami League party in Australia, his activities will be known in Bangladesh and have been reported to the government and Awami League members there. He claims as a result he will face serious and significant harm on return including having a false case being laid against him and being placed in jail due to attendance at these events in Australia. While the applicant presented a number of photos of him protesting against the visit of Sheikh Hasina in 2018, there is no evidence that his photo and name was published in any newspaper or appeared in any social media. Further, DFAT in its 2019 country report indicates that it is not aware of any instances of returnees being detained at the country’s borders in relation to political activities conducted abroad. The Tribunal is of the view that if as claimed by the applicant he will face harm, including being detained and false cases laid against him as the Awami League representatives in Australia are watching those involved in the BNP events in Australia and reporting to the Government of Bangladesh and Awami League in Bangladesh those attending such BNP events in Australia, there would be evidence of returnees who had engaged in BNP political activities in Australia facing harm in the manner claimed on return. However, DFAT is not aware of any instances.

Based on the DFAT country information, as he had no political profile prior to his departure and will not be politically active on return, the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm if he returns to Bangladesh in the reasonably foreseeable future due to his involvement in the BNP Australia or protesting the visit of Sheikh Hasina in the manner claimed and that there were Awami League representatives watching and reporting on him. Similarly, based on the findings above and on the information before it, the Tribunal is not satisfied that there is a real risk that he will suffer significant harm on his return to Bangladesh due to his involvement in the BNP Australia or protesting the visit of Sheikh Hasina in the manner claimed and that there were Awami League representatives watching and reporting on him.

Conclusions regarding the Refugee Convention

The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in Bangladesh in the reasonably foreseeable future.  Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future. 

Based on all the evidence before it, including the applicant’s claimed past circumstances and his current personal and family circumstances and profile in Bangladesh, the Tribunal is not satisfied that the applicant faces a real chance of persecution involving serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion if he returns to Bangladesh in the reasonably foreseeable future. For the reasons given above, the Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Complementary protection

The Tribunal has also considered whether the applicant is eligible for complementary protection. Findings have been made above in this regard.

The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real risk of him being subjected to significant harm on return to Bangladesh.  Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm as defined in s 36(2A) of the Act.

CONCLUSION

For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).

DECISION

The Tribunal affirms the decision not to grant the applicant a protection visa.

Gabrielle Cullen
Member

ATTACHMENT

CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Section 36(2)(a) provides that a criterion for a protection visa is that the 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

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.

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36     Protection visas – criteria provided for by this Act

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(2)A criterion for a protection visa is that the 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.

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